4. A CRITICAL EXAMINATION OF THE INTERPRETATION OF
4.2 Models of dolus eventualis recognised in South African law
4.2.1 Model 1: An acceptance of a qualified cognitive element & a disregard of the conative
According to this model, legal writers accept the view that only one element is sufficient for a finding of dolus eventualis, that is, the cognitive element. In this manner, qualifying the cognitive element in the test for dolus eventualis to a certain extent makes the conative element useless. This can be best illustrated by looking at Professor Burchell’s opinion.504 He believes that dolus eventualis should be comprised of a qualified cognitive element, where he advocates for foresight of a “real”, “substantial” or “reasonable” possibility.505 He advocates qualifying the cognitive element because he believes that defining it in unqualified terms leaves the whole concept of dolus eventualis too broad.506 He then goes on to argue that the conative element should be rejected as “irrelevant and confusing”.507 It can be observed that Burchell rejects the conative element and balances the concept of dolus eventualis with a qualified foresight component to ensure that the concept is not too broad, and that people who do not deserve to be regarded as acting intentionally are not convicted on the basis of dolus eventualis. By insisting on this standard, Burchell further contends that intention would be confined to “a state
499 Director of Public Prosecutions, Gauteng v Pistorius (supra note 49).
500 S v Humphreys (supra note 49).
501 Maarohanye and Another v S (supra note 49).
502 For example, the recent case of S v Van Schalkwyk (supra note 49).
503 Italics for my emphasis
504 JM Burchell (supra note 53) 373.
505 Ibid, at 373.
506 See a detailed discussion in chapter 2.
507 JM Burchell (supra note 53), 391. Discussion in Chapter 2 for more reasons why the conative element was rejected.
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of mind that can properly be regarded as such and keep the dividing line between intention and negligence clear-cut”.508 It is on this basis that some academic writers like Paizes, Smith and Morkel have found the view of rejecting the conative element and accepting only a qualified cognitive element of dolus eventualis.509
Paizes, Smith and Morkel reject the conative element as redundant and argue that all that is required for dolus eventualis is subjective foresight of the possibility of harm ensuing provided the possibility is not remote, but substantial or “concrete”.510 It seems that recklessness adds nothing to the cognitive element: if the accused foresaw the possibility of the result but nevertheless proceeded with his act he was in any event reckless. Recklessness according to their511 understanding can be absent only if the accused foresaw the possibility of the result but decided not to proceed with his act, in which event he will escape liability on the basis that there was no unlawful act.512 This dissertation acknowledges the existence of this particular model, but however finds it flawed to its attempt at rejecting the conative element as irrelevant.
Subsection 4.2.4 discusses the model favoured by this dissertation and how the conative element must always fit into the test for dolus eventualis.
4.2.2 Model 2: An acceptance of an unqualified cognitive element & the conative element as significant
The second model recognised amongst legal academics is the one that qualifies the cognitive element and further accepts the existence of the conative element. This model is completely different from the above one (4.2.1). According to this model, the degree of foresight must be of any foresight, no matter how remote, unqualified by any terms with support from the case of S v Malinga513 which favours foresight of a remote possibility. In the case of Malinga, it was held that remoteness of the possibility is significant in drawing an inference of the accused’s subjective foresight of a possibility;514 the more remote the possibility the less likely it is that the accused did in fact foresee it.515 But that is not to say that a person who does foresee
508 EM Burchell & PMA Hunt South African Criminal Law and Procedure Vol:1 General Principles of Criminal Law 2ed (by EM Burchell, JRL Milton & JM Burchell) (1983) 141, 156.
509 PT Smith (supra note 307) 92; Morkel (supra note 253) 173; A Paizes (supra note 64) 638.
510 Supra note 509.
511 Supra note 509.
512 CR Snyman, (supra note 1), 181.
513 S vMalinga (supra note 2) 694H.
514 Ibid.
515 S v Shaik (supra note 217) 62D-E.
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a possibility of death is entitled, because the risk is slight, and death is unlikely, highly improbable or remote, to take a chance and, as it were, gamble with the life of another.516 It can be observed that the view of an unqualified possibility is more favourable because the requirement of a real possibility was expressly rejected in the Fick case.517 The requirement of a real possibility was also rejected following a decision in South African case law that what is required for dolus eventualis is not foresight of any possibility, but only of a real possibility518 or foresight of a substantial risk519 or of a reasonable possibility of risk to life.520 In the case of Beukes521 reference has been made to foresight of a reasonable possibility,522 but it appears that they do not go as far as setting this as a general requirement.523 This requirement would be in conflict with the view which either does not qualify possibility or even allows a remote possibility to suffice.
To a certain extent Loubser and Rabie fall in this category. They accept an unqualified cognitive element and reject the conative element. According to Loubser and Rabie, the cognitive element of dolus eventualis requires foresight of the possibility of the harmful result in the sense that the result of the act may occur in a particular manner.524 Once a person comes to a conclusion that a certain result will follow from his act, but nevertheless proceeds to act appreciates the possibility of the harmful result in question and therefore acts intentionally. It has further been observed that, the degree of probability of the occurrence of the harmful result will be of evidential importance regarding the inference as to whether the actor subjectively concluded that the harmful result may occur, but foresight of a real or substantial possibility of such occurrence is not required.525 In as much as the conative element has been accepted as significant, it appears that a positive will, wish or desire is not required, but rather a more passive “appreciation of” or “reconciling to” the harmful result.526
516 R v Horn (supra note 17) 465C.
517 S v Fick 1970 (4) SA 510 (N) 514C-G; S v Shaik (supra note 217) 62C-F.
518 S v Ushewokunze 1971 (1) SA 360 (RA) 364B-C; S v Ostilly (supra note 123) 728D; S v Ncwane 1978 (2) PH H218 (A); S v Moodie 1983 (1) SA 1161 (C) 1162B.
519 R v Steenkamp 1960 (3) SA 680 (N) 684F-G.
520 S v Tazwinga (supra note 205) at 59 1D; S v Ushewokunze (supra note 280) 363.
521 S v Beukes (supra note 144).
522 Ibid, 522E.
523 Ibid, 521J-522C.
524 Loubser & Rabie (supra note 203) 435.
525 Ibid
526 Ibid.
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However, it is hard to determine an extent such acceptance or reconciling constitutes- something more than a mere awareness or conclusion that the harmful result may occur in the circumstances. Loubser and Rabie then conclude that it is hard to determine the exact content of volition in the form of “acceptance of” or “reconciling to” the harmful result in question;
and second because the accused who sets in motion a criminal course of conduct while foreseeing the possibility of the harmful result occurring, should not by mere change of mind and loss of volition obtain the benefit of a defence, just as voluntary withdrawal after setting in motion a criminal course of conduct should not constitute a defence against conviction of attempt.527 According to this model, the view of an unqualified component is balanced by an additional element, (the conative element) but to avoid some repetition, more on how the conative element is linked to an unqualified cognitive element is discussed below at (4.2.4), because these two models are almost similar.
4.2.3 Model 3: An acceptance of a qualified cognitive element and the conative