2. DOLUS EVENTUALIS AND LUXURIA 1 Introduction
2.5 Foresight defined in unqualified terms
2.6.4 Assessment of the degree of foresight required for dolus eventualis
It is submitted that foresight defined in unqualified terms is the correct approach to adopt.190 The reasons for this submission are discussed below.
1. Accepting foresight in qualified terms strains both logic and language.191 Foresight is foresight irrespective of the degree of foresight. To find that an accused subjectively foresaw a possibility and to not accept such foresight because the possibility foreseen was unlikely definitely undermines the jurisprudential reasoning of subjective foresight.192 As South African criminal law subscribes to the psychological approach to crime,193 it is submitted that to give credence to this approach, foresight defined in unqualified terms should be followed.194 The reasoning behind this submission is that an accused should not be able to escape liability for his subjective foresight on the basis that such foresight was
185 Ibid 147.
186 S v Mini (see note 82); S v De Bruyn (see note 66); S v Humphreys (see note 7); R v Horn (see note 107).
187 Hoctor (see note 73) 147.
188 S v Makgatho (see note 178) para 10, cites S v Ngubane (see note 112) 345; S v Qeqe 2012 (2) SACR 41 (ECG) 577. Other cases are cited however, these two expressly provide for foresight in unqualified terms.
189 Hoctor (see note 73) 148.
190 Ibid 151.
191 Ibid 149 - 150.
192 Ibid 151.
193 Burchell (see note 6) 60. If the accused has a guilty mind, he should be criminally liable
194 Hoctor (see note 73) 155.
30 remote or unlikely. Such a conclusion would be contrary to the psychological approach to crime.195
2. Accepting foresight of a qualified nature has the potential to distort the line between intention and negligence.196 It is submitted that by qualifying foresight with the terms
“reasonable,” “real,” “substantial,” or “probable” creates two issues. The first, how does a court accurately define the meaning of these words without placing some sort of objective criteria in that determination?197 By qualifying foresight one would essentially be comparing the accused's foresight to a standard of reasonableness, which would have the effect of adopting a yardstick approach to determining foresight.198 By adopting such an approach one would effectively be applying a test for negligence as opposed to intention.199 Another issue that may be present is one of interpretation. The courts may differ in their understanding of what constitutes a reasonable, real or probable possibility, which in turn will place strain on the legal certainty of dolus eventualis.200
If the cognitive element of dolus eventualis is defined in qualified terms, then the test for determining foresight in dolus eventualis will align too closely with the test set out in Kruger v Coetzee. Kruger v Coetzee sets out the test for culpa as: whether a reasonable person would have foreseen the reasonable possibility of his conduct injuring another person and causing her harm.201 It is submitted that accepting foresight of a qualified nature would align rather too closely with the test for negligence. It is submitted that if objective criteria are used to determine a subjective inquiry, we would be reverting to a similar approach adopted by the courts prior to 1945, which was the English law presumption that a person intends the probable consequences of his actions.202
3. It is interesting to note that besides Van Wyk, no other judgment has expressly overruled foresight of an unqualified nature.203 In fact, certain judgments and legal scholars accept
195 Ibid 155.
196 Ibid 152.
197 Ibid 151 - 152.
198 Carstens (see note 46) 68.
199 Ibid 68.
200 Hoctor (see note 73) 151 - 152.
201 Kruger v Coetzee 1966 (2) SA 428 (A) 430 E - F. Ibid 152.
202 Burchell (see note 6) 355 - 356.
203 Hoctor (see note 73) 145; S v Beukes (see note 137); S v Van Aardt (see note 173); even Paizes, Snyman and
31 the application of foresight of an unqualified nature in particular circumstances.204 It is submitted that the cognitive element of dolus eventualis should not consist of a qualified rule that caters for certain exceptions but should rather consist of an unqualified principle that may encompass all situations of foresight placed before it.
Those in favour of qualified foresight may argue that unqualified foresight is far too broad in its scope of application.205 However, it is submitted that this will not be the case, as dolus eventualis is a two part inquiry and foresight is only the first part of that inquiry. An affirmative finding of foresight will not automatically lead to criminal liability.206 The conative element of dolus eventualis still needs to be proved to find the accused criminally liable.207 It is respectfully submitted that the controversy surrounding the cognitive element of dolus eventualis is in respect of issues of proof.208 Dolus eventualis is proved by means of inferential reasoning, as highlighted in chapter 1. A reliance on this process of reasoning is a difficult burden to meet.
It is inherently difficult to prove the subjective state of mind of an accused by means of inferential reasoning and the burden placed on the state of proof beyond a reasonable doubt, is onerous.
4. The cognitive element of dolus eventualis in principle is theoretically flawless when expressed in unqualified terms. The only quarrel that presents itself is that of proof. It is submitted that it is indeed difficult to prove by means of inferential reasoning that the accused foresaw a remote possibility.209 The reason for this submission is that the external facts upon which inferential reasoning relies are not always present.
It is submitted that the debate surrounding the cognitive element of dolus eventualis is more an evidential issue than a doctrinal issue.210 The essential feature of the cognitive element of dolus eventualis is subjective foresight. No further qualifying terms should be added to the element of
Whiting cater for foresight of an unqualified nature, in exceptional circumstances, see fn (135)
204 Paizes (see note 1) 642; Whiting (see note 2) 446; see also fn (135).
205 Whiting (see note 2) 445; Hoctor (see note) 138.
206 S v Humphreys (see note 10) para 12. Hoctor (see note 73) 154.
207 Ibid para 12.
208 Hoctor (see note 73) 152.
209 Paizes (see note 1) 640.
210 Hoctor (see note 73)
32 dolus eventualis.211 The terms "reasonable", "real", "substantial", "probable", "remote" or "slight"
should not feature in the definition of the cognitive element of dolus eventualis.212
Put simply, if the accused subjectively foresaw the possibility of causing the unlawful result, then the accused satisfies the cognitive element of dolus eventualis.213