Prosecutor Gerrie Nel at the sentencing hearing of paralympian Oscar Pistorius at the high court in Pretoria, Thursday, 16 October 2014.
Dolus eventualis: quo vadis?
As we draw closer to the sentencing hearing in the Pistorius matter, which has been scheduled to start on 13 June 2016, it is appropriate to reflect – in terms of finally concluding on the matter – on some of the key legal issues related to the case. Whereas most members of the public have probably at this stage ‘had more than enough’ of the case, there are some of those issues that remain unresolved, and it is important to resolve them.
Since the Constitutional Court (CC) did not grant leave to appeal for it to hear the matter, it is indeed ‘the end of the road’ for Oscar Pistorius himself in terms of not being officially labelled a murderer, and he will almost certainly now receive a heavier sentence. As far as the Law is concerned, however, the resolution of the issue of the correct application of dolus eventualis in cases of potential putative justification is not relevant only to the Pistorius case.
Since the CC will not address the matter of dolus eventualis in cases of potential putative justification in the Pistorius case, it is up to independent jurists who write on Criminal Law not to allow the issue to be left behind in the ‘dust cloud’ that this case has created. The purpose of the present two-part article is to ensure that any person who reads it will understand the basic contents of dolus (criminal intent) in South African Law.
From a substantive Criminal Law point of view, two major issues still remain to be resolved. Although neither the Supreme Court of Appeal (SCA) nor the CC is likely to have the opportunity to address those issues soon, the lower Courts can still be guided by formal juristic writing in the event of a matter of putative justification arising. Indeed, the Courts often refer (sometimes extensively) to juristic writing in substantiating their application of the Law. A recent example is particularly relevant for present purposes:
In the relatively recent case of S v Brown 2015 (1) SACR 211 (SCA), the SCA approvingly quoted Professor CR Snyman (who has been quoted countless times by the Courts in recent decades) at :
“It is necessary, whilst engaging in the exercise referred to in the preceding paragraph, namely an evaluation of the evidence consistent with Brown’s plea, to remind ourselves of the definition of dolus eventualis. In CR Snyman Criminal Law 5ed (2008) at 184 it is defined as follows:
‘A person acts with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his main aim, but: (a) he subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed or the unlawful result may be caused, and (b) he reconciles himself to this possibility.’
….The learned author points out that there are two requirements for the existence of dolus eventualis. The first is that X should foresee the possibility of the result, and the second is that he should reconcile himself to this possibility. The first may be described as the cognitive part of the test and the second as the conative (or volitional) part of the test.”
I will return to the above quote in the third section of the present article. You might have noticed a small but significant detail. If you have not, you will further below.
Who are the two heavyweight champions of South African Criminal Law?
Professor CR Snyman is indisputably one of the most respected and quoted (in the South African Courts) Criminal Law jurists. The SCA indeed also referred to Snyman (at two separate points) in the Pistorius judgment last year, and it appears that he was the only Criminal Law jurist to whom the Court referred in that judgment.
In terms of some basic background, after practising as an advocate as a member of the Free State Bar in the sixties, Professor Snyman was appointed as Senior Lecturer at RAU (in 1970) and later as Professor of Criminal Law at Unisa (in 1975). He holds the degrees BA LLB LLD (from UOVS), the last of which he obtained in 1973 while lecturing at RAU. Around that time, he also conducted research at the Max Planck lnstitut fr Auslandisches und Internationales Strafrecht in Freiburg, Germany, to which he would return for a number of years with the support of a bursary awarded to him by the Alexander von Humboldt Foundation.
Apart from a number of books (including his leading text “Criminal Law”, which was first published in 1981 as “Strafreg”), he has to date authored over seventy pieces in formal legal journals, starting in 1968.
Professor SA Strauss SC, who has to date undoubtedly been the greatest authority on Medical Law in South African legal history and one of the country’s most eminent jurists, commented on Professor Snyman’s leading textbook as follows:
“Sy boek oor strafreg [staan] op die voorgrond as ’n werk van die hoogste gehalte…en bowendien as die grootste Suid-Afrikaanse stuk werk op di gebied as geheel wat tot dusver uit die pen van ’n enkele juris gevloei het. Die boek is nie slegs aanvaar as ’n ideale handboek vir studente nie, maar as ware vade mecum vir sowel regspraktisyn as regterlike beampte…”
Indeed, the Courts quote Professor Snyman very frequently in criminal cases and clearly have the utmost regard for his authoritative expertise. Another recent example (there are many more) is where the SCA quoted Snyman in support of its reasoning in Nkosi v S (20727/14)  ZASCA 12 (at  and ):
“As Professor Snyman correctly points out, our courts have consistently held accused persons who engage in a wild shootout with others, in the course of an armed robbery, criminally liable on the basis of dolus eventualis for the unexpected deaths that may
result…[The Court then later continued:] It would suffice to state that Molimi and other authorities in this court are contrary to the finding in Mkhwanazi. And, secondly, as pointed out above, Professor Snyman supports this latter approach (at 201). In the course of that discussion, Professor Snyman refers to the following hypothesis…[the Court then proceeded to quote Snyman].”
Referring to the enriching influence that Professor Snyman’s international perspective has had on South African Criminal Law, Strauss continues as follows: “Snyman se werk [het] algehele vernuwing gebring deur ons strafregdenke in lyn te bring met die jonger Vastelandse regswetenskap. Dit het vanselfsprekend nie net ’n teoretiese of sisteembouende uitwerking nie, maar bring ook vernuwende praktiese resultate. Snyman het ook geput uit moderne Engelse, Skotse en Amerikaanse regsdenke…[en] het talle besoeke aan oorsese universiteite en navorsingsinstitute gebring. Dit was veral in Duitsland waar hy navorsing gedoen het, maar hy het ook akademies gaan put uit kennisbronne in Skotland en die VSA.”
On his website, “Criminal Law in South Africa” (which is the beginning of a highly commendable project to create a free online textbook on Criminal Law in South Africa, with commentary), Dr James Grant describes Professors CR Snyman and JM Burchell as arguably the two leading authors on South African Criminal Law (referring to their leading texts, Burchell’s “Principles of Criminal Law” and Snyman’s “Criminal Law”).
Indeed, the second heavyweight champion of South African Criminal Law is Professor Jonathan Burchell, who currently teaches Criminal Law at the University of Cape Town.
Professor Burchell earned his LLB from the University of Natal in 1972, after which he was awarded the Elsie Ballot Scholarship to study at Clare College, University of Cambridge. He obtained his master’s degree (LLM) from Cambridge in 1974 and continued his studies with the Diploma in Comparative Legal Studies, which he obtained in 1975 (also from Cambridge University).
After lecturing for a number of years, he completed his PhD at the University of the Witwatersrand (where he had been appointed as Professor in 1982). During that time he was also a Visiting Scholar at Clare College, University of Cambridge, and he was later a Visiting Professor at the University of Nottingham and at the University of Aberdeen.
Professor Burchell has assisted the Law Commission of England and Wales as an expert consultant, and also acted as expert consultant to the International Commission of Jurists in 2006. He was the Editor (1988-2000) and Editor-in-Chief (2000 to 2009) of the South African Journal of Criminal Justice, and also a member of editorial board of the Journal of Commonwealth Criminal Law.
In 2007, he was elected Fellow of the University of Cape Town for original distinguished academic work. He has authored/co-authored at least eleven books, and has to date published at least sixty-eight articles in formal legal journals (or chapters in books of which he is not the main author), starting in 1974.
It can safely be concluded that Professors Snyman and Burchell are the current heavyweight champions of South African Criminal Law. What do they have to say about dolus eventualis, knowledge of unlawfulness and Oscar Pistorius?
Is knowledge of unlawfulness an essential element of dolus in SA Law?
My preceding article, being a speedy publication on eNCA (rather than in a formal legal journal) did not refer to much supporting authority. I merely mentioned S v De Blom (which is somewhat of a ‘must-mention’ whenever one discusses intent in South African Law) and asserted that there is ample authority for the fact that knowledge of unlawfulness is an essential element of intent.
Now, to move away from the ‘Get Shorty’ scenario whereby “I am [just] the guy telling you the way it is”, I hereby offer you the to-the-point explanations of the two above-introduced heavyweight champions. As you will see, the basic fact is that knowledge of unlawfulness is a component of dolus in South African Law. It is not a ‘maybe’.
In the 2002 edition of his leading textbook, with reference to the Courts’ construction of culpability and the place of awareness of unlawfulness (which place had been decisively confirmed in the preceding decades), Snyman explains as follows:
“Intention.., in the language of the courts, means not merely the decision to act and the direction of the will (‘colourless’ intention) but also a knowledge or an awareness of the material circumstances which bring the conduct within the ambit of the definitional elements and render it unlawful. Intention therefore includes the awareness of unlawfulness…” (Emphasis added.)
In his latest edition (2014), Snyman describes “intention” (as used in Criminal Law) as meaning that “a person commits an act:
(1) while his will is directed towards the commission of the act or the causing of the result;
(2) in the knowledge of (a) the existence of the circumstances mentioned in the definitional elements of the relevant crime and (b) in the knowledge of the unlawfulness of the act.” (Emphasis added.)
The learned author explains as follows: “If X acts with his will directed towards the commission of the act but without the knowledge referred to in (2)(a) and (b), he is said to act with so-called ‘colourless intention’. ‘Colourless intention’ corresponds more or less with the meaning which intention has in everyday parlance, that is, the lay person’s language used outside the courts. In the law, and in criminal law in particular, the term ‘intention’ is always used in a technical sense, that is, a meaning which differs from the popular meaning of the word in ordinary parlance.”
Snyman continues: “X acts with intention in the technical meaning of the word [only] if his will is…‘coloured’ by the knowledge referred to in (2)(a) and (b). Lawyers are fond of referring to ‘coloured intention’ by its Latin name dolus. By using the word dolus, one ensures that one is not referring to ‘colourless intention’, but to intention in the technical meaning which the word has in legal terminology…” (Emphasis added.)
Very importantly, Snyman clarifies that “[i]ntention, in whatever form, consists of two elements, namely a cognitive (or intellectual) and a conative (volitional…) element. The cognitive element consists in X’s knowledge of the act, of the circumstances mentioned in the definitional elements and of the unlawfulness…” (Emphasis added.)
It should accordingly be clear at this point that dolus eventualis, which is quite obviously a form of dolus (intent) in South African Law, also contains knowledge of unlawfulness as part of its cognitive element. (See Part 1 of my preceding article for my suggested explicit clarification of this in a full definition of dolus eventualis.)
Snyman continues: “Intention in the technical sense of the term can therefore be defined as the will to commit the act or cause the result set out in the definitional elements of the crime, in the knowledge of the circumstances rendering such act or result unlawful. Defined even more tersely, one can say that intention is to know and to will an unlawful act or a result…” (Emphasis added.)
Now look again at the definition of dolus eventualis as quoted with approval by the Supreme Court of Appeal in S v Brown 2015 (1) SACR 211 (SCA): “…(a) he subjectively foresees the possibility that, in striving towards his main aim, the unlawful act may be committed or the unlawful result may be caused, and (b) he reconciles himself to this possibility…” (Emphasis added.)
This is the detail that you might already have noticed in the opening section of the present article. It is not very ‘loud’, but foresight of the unlawful act/result indeed features in that definition. If you see it in context (looking at Snyman’s more complete explanation provided above), then it is clear that knowledge of unlawfulness is inherently part and parcel of dolus eventualis.
As explained in Part 1 of my preceding article, it is understandable that the Courts have generally focussed only on the ‘two requirements’ (i.e. ‘foreseeing’ and ‘reconciling’ in respect of the physical result) that distinguish dolus eventualis from other forms of intent. This is also particularly due to the fact that in most cases of dolus eventualis knowledge of unlawfulness is not in dispute.
However, the requirement that the person must have knowledge of unlawfulness is always implicitly there in South African Criminal Law. This is merely a matter of maintaining clear perspective. See the following diagrammatic clarification provided by Professor Snyman in his leading textbook:
The element of knowledge of unlawfulness is technically part of the cognitive element of intent (as illustrated by Snyman above).
From a technical point of view, it should be clear why the analysis of dolus eventualis in my preceding article accordingly referred to two aspects of the cognitive element (and then the volitional element, which relates to the two-part cognitive element).
The element of knowledge of unlawfulness is technically part of the cognitive element of intent (as illustrated by Snyman above).
Note that, in the case of murder, the knowledge of the act and definitional elements is covered by the factual cognitive element (as described in my preceding article), being the accused’s foresight that his or her conduct might cause the death of another person. The remaining essential ingredient is then the legal cognitive element, being the operative knowledge that the conduct is (or realistically might be) unlawful in the specific situation.
Here again is the three-part definition of dolus eventualis as formulated in my preceding article, where this is made explicit:
A person acts with dolus eventualis where he or she:
1. foresees that the relevant consequence might result from his or her conduct [factual cognitive element], and
2. knows that the conduct is or might be unlawful [legal cognitive element], and
3. proceeds, reconciling himself or herself to such result and related unlawfulness [volitional element].
Snyman himself does not later (in his leading textbook) in his discussion of dolus eventualis as a specific form of intent again spell out as such the fact that knowledge of unlawfulness forms part of all forms of dolus (obviously including dolus eventualis) but rather focusses on the features that distinguish dolus eventualis from other forms of intent. He simply includes the word unlawful in the two-part definition (as quoted in S v Brown above).
Similarly, as mentioned above and discussed in my preceding article, the Courts have also focussed on the features that distinguish dolus eventualis from other forms of intent, i.e. the fact that the accused takes a foreseen result ‘into the bargain’ upon proceeding with his or her conduct, rather than aiming to achieve the result (distinctively characteristic of dolus directus) or not aiming but knowing that the result will necessarily ensue (distinctively characteristic of dolus indirectus).
Interestingly, Professors Burchell and Snyman have both commented on the Pistorius case itself as such, and both of them point out knowledge of unlawfulness as part of intent as central to the case. With regard to the fact that knowledge of unlawfulness is inherently part of dolus eventualis, Professor Burchell indeed states it explicitly, in the context of the Pistorius case, as follows: “…knowledge or foresight of unlawfulness [is] regarded as part of the intention inquiry in all its forms, including dolus eventualis.” (Emphasis added.)
I will return in the following sections below to the opinions of the two heavyweight champions of South African Criminal Law regarding the legal aspects of the Pistorius case as such. I next first turn to the authoritative words of Judges of the High Courts and the Supreme Court of Appeal themselves.
What about the Judges of the High Court and Supreme Court of Appeal?
In a very accurate and to-the-point paragraph from the recent judgment of the Western Cape High Court in S v TNS 2015 (1) All SA 223 (WCC) at , Rogers J (Saldanha J concurring) held as follows:
“…[U]nless…a person also knows that he is…acting unlawfully, a necessary component for dolus is lacking. For dolus to be present there must be the [‘colourless’] intention to kill and knowledge of unlawfulness (see S v Ntuli 1975 (1) SA 429 (A) at 435H—437G; S v Motleleni 1976 (1) SA 403 (A) at 407C-D).” (Emphasis added.)
In accordance with that sound appreciation of intent, the Court very accurately explained the situation in respect of putative private defence as follows:
“If, judged by these standards, the accused person is found to have exceeded the bounds of lawful private defence, it would still be necessary to determine culpability. Where the charge is one of murder, a person who subjectively but incorrectly believed he was acting in lawful private defence would not have dolus but could be convicted of culpable homicide…”
This explanation is consistent with the oft-quoted fact that genuine putative private defence excludes dolus. This basic fact was also referred to by the SCA in DPP v Pistorius (at ), quoting S v De Oliviera, as follows:
“…His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person’s death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide…” (Emphasis added.)
Genuine putative private defence excludes dolus precisely because it negates the knowledge-of-unlawfulness element thereof. If this were not an essential element of dolus, genuine putative private defence would not exclude dolus. After all, it does not exclude the fact that the person foresaw death and reconciled himself or herself thereto; rather, it excludes the fact that he or she did so knowingly unlawfully.
Referring to Professor Snyman and authoritative case precedents, the Court in S v TNS 2015 (1) All SA 223 (WCC) at  (per Rogers J) clarified the above-described basic fact as follows, particularly in the context of dolus eventualis and putative self-defence:
“A person who reacts in self-defence often [‘colourlessly’] intends to cause physical harm to the aggressor; such person may even foresee that his act of self-defence will or may have fatal consequences for the aggressor. But unless such person also knows that he is exceeding the bounds of self-defence and thus acting unlawfully, a necessary component for dolus is lacking. This is sometimes referred to as putative self-defence (Snyman op cit at 113-114)….” (Emphasis added.)
The Court then continued to ‘complete the picture’ in terms of the consequence of the absence of knowledge of unlawfulness (and thus intent) but the presence of negligence:
“…Nevertheless, if a reasonable person in the position of the accused would have realised that such conduct was beyond the bounds of reasonable self-defence, a conviction of culpable homicide is the appropriate and competent verdict (Ntuli supra at 436F-437D; S v De Oliveira 1993 (2) SACR 59 (A) at 63g-64a).”
Professor Snyman himself explains the situation very clearly as follows: “It must be emphasised that the mere fact that X knew or foresaw that her act might result in Y’s death, does not mean that she intended to kill (as this requirement is understood in the law) and that she is therefore guilty of murder…[A]wareness of unlawfulness is an indispensable requirement of dolus (intention in the technical, legal sense of the word).” (Emphasis added.)
The learned author continues (at 114): “In ordinary cases where the bounds of private defence are exceeded there can usually be no doubt that intention in the sense of a direction of the will (i.e., ‘colourless intention’, or intention without an appreciation of the unlawful quality of the act) is present. After all, X wishes to put the original aggressor out of action… What she usually does not realise is that her conduct exceeds the bounds of private defence and that she is acting unlawfully; she then has only a “colourless” intention to kill.” (Emphasis added.)
In Joshua v S 2003 (1) SACR 1 (SCA), the Court quoted the same authoritative passage from S v De Oliveira (as quoted in DPP v Pistorius), and continued to apply the principles to the facts of Joshua as follows (at ):
“In considering [Deceased 2]’s position the court a quo [i.e. the trial court] said that if [Joshua] had paused for a moment before firing the second and third shots ([Deceased 2] was shot twice) he would have realised that “this man is turning away and I have nothing to fear from him”. On this reasoning the trial court ought not to have convicted the appellant of murder. Considering that the onus was on the State[,] the evidence did not prove that [Joshua] did realise that his life was no longer in danger from [Deceased 2].”
This brings into clear focus the fact that, as explained in my preceding article, the onus is on the State to convince the Court that there is evidence that proves beyond reasonable doubt that the accused himself subjectively realised that he was not (or no longer) acting in lawful private defence. Hence the requirement that Joshua (the accused in that case) himself must have realised that his life was no longer threatened (and thus that by continuing to fire, he would no longer be acting in self-defence). Again, this relates to the inherent element of knowledge of unlawfulness within dolus. Without that essential element, there can be no dolus, i.e. dolus is excluded.
The SCA in Joshua continued to explain as follows (at ): “The court a quo held that [Joshua] must have realised that [Deceased 2] was running away from him and that he ‘must give him another few seconds because it looks as if he is turning away’… In my view the trial court did the very thing against which it warned itself when it considered the verdict in respect of [Deceased 1]. It said that it had come to the conclusion that [Joshua] must not be treated as if he was in a position where he could calmly consider his options. The court a quo lost sight of the fact that the incident played itself out very fast… The fact that [Joshua] was ‘very well equipped and trained to fire rapidly’ does not alter the position, in my view.” (Emphasis added.)
The emphasised words in the above quote serve to reinforce the fact that the evaluation of an accused’s subjective state of mind must be a prognostic one (‘in the heat of the moment’, as discussed in my preceding article). I will return to that point in Part 2 of the present article.
The SCA clarified the matter further as follows (at ): “Based on what was said by this Court in S v De Oliveira, supra, in the passage quoted above, at worst for [Joshua] he should have been convicted of culpable homicide on the murder counts involving the deaths of [Deceased 2] and [Deceased 3]. He erroneously believed that he was still in danger of being attacked by them and that he was accordingly entitled to retaliate, when in fact they were turning or had turned sideways, probably in an endeavour to escape. His erroneous belief that his life was in danger excludes dolus.” (Emphasis added.)
The Court clearly reaffirmed that lack of knowledge of unlawfulness (in this case due to the belief that one is acting in valid self-defence) means that there can be no dolus. A point that should be made in this context is that it would have been preferable, with respect, to have clarified that it is not merely “his erroneous belief that his life was in danger [that] excludes dolus”, but indeed his erroneous belief that he was still acting in lawful self-defence. In terms of promoting overall clear perspective on the matter, it would have been preferable if it had been clearly spelt out that:
(1) the fact that he did not realise that he was no longer acting in lawful self-defence,
(2) means that he lacked subjective knowledge of unlawfulness at the time,
(3) which knowledge is an inherent element of dolus (in all its forms),
(4) and therefore dolus is excluded.
If the above were to have been clarified as such, the assessment of dolus eventualis in the Pistorius case would have been undertaken with a different perspective in both the High Court and the SCA (as discussed in my preceding article).
In his leading textbook, Professor Burchell (2013) states it clearly: “If the accused genuinely does not know, or does not foresee, the possibility of the unlawfulness of his or her conduct [at the time], then he or she cannot be held to have the required guilty mind in the form of intention.” Under the heading “Defences and putative defences excluding intention”, he explains as follows:
“An accused who genuinely believes he or she is acting in self-defence, whereas in fact and in law he or she is exceeding the bounds of this defence, will be able to raise putative self-defence (not actual self-defence) as a defence excluding fault in the form of intention…” Burchell indeed more specifically describes putative private defence as “a defence excluding the knowledge of unlawfulness aspect of intention” (at 333). (Emphasis added.)
Professor Burchell’s assessment on the accepted facts of the Pistorius case
In my preceding article, I note that the technical errors on the part of the SCA do not necessarily mean that the Court reached the wrong verdict (as such) in the end. In other words, the SCA could, employing a fully correct process of legal reasoning, still have arrived at a murder conviction. As stated in the article, I do not venture to suggest what the ‘correct’ outcome should be (i.e. either murder or culpable homicide). Rather, the preceding article highlights crucial points regarding the required process of correctly applying the Law in reaching a valid outcome either way.
It is interesting to note that Professor Burchell, in his respectful application of the Law to the accepted facts (i.e. the same accepted facts to which the SCA applied the Law) unequivocally concludes that the outcome is correctly culpable homicide, based on the absence of operative knowledge of unlawfulness as an essential element of dolus eventualis. Professor Burchell explains as follows:
“The accused does not have to prove a defence. It is sufficient if evidence of a defence might reasonably possibly be true and serves to create reasonable doubt. The prosecution bears the burden of proving the unlawfulness of the accused’s conduct and his guilt beyond reasonable doubt. According to current criminal law, Pistorius would lack knowledge or foresight of the unlawfulness of his conduct if he genuinely thought (albeit mistakenly) that he and Steenkamp faced an imminent threat from an intruder that night and that he (Pistorius) was therefore acting in self-defence.” (Emphasis added.)
The learned author continues: “There clearly was no actual self-defence in the Pistorius case as there was no intruder. His conduct was therefore unlawful. However, a further inquiry has to be made in criminal law: did the accused genuinely (subjectively) believe that a self-defence situation existed? This is an inquiry into intention, including knowledge or foresight of unlawfulness.” (Emphasis added.)
Having confirmed that, on the facts as accepted, the Pistorius case can correctly be regarded as one of putative private defence, Professor Burchell expresses that “it is unfortunate that [the High Court] did not spell out [its] findings on the absence of knowledge or foresight of the unlawfulness of the killing more fully.” He further asserts as follows:
“A more convincing conclusion would have been that the only reasonable inference that could be drawn from the evidence was that Pistorius did foresee the possibility of killing a person behind the door (despite his claim that he did not), but that he nevertheless mistakenly thought he was entitled in law to do so on the basis of his genuine belief that the person behind the door was not Steenkamp, but a threatening intruder.” (Emphasis added.)
In other words, as discussed in my preceding article, it is the legal cognitive element of dolus eventualis that is central to the question of Oscar’s criminal intent, and not the factual legal element. Professor Burchell clearly also regards the factual element as not being the central issue in this case, as evidenced by his statement that the High Court could in the first place have inferred beyond reasonable doubt that there was indeed subjective foresight of death on Oscar’s part. Rather than that being the central issue, the crucial question was in fact whether knowledge of unlawfulness could also be inferred beyond reasonable doubt (as it would need to be for dolus eventualis to be present).
Professor Burchell’s respectful conclusion is in effect that operative knowledge of unlawfulness was reasonably possibly absent in the circumstances according to the facts as accepted in the Pistorius case, and that culpable homicide is the correct verdict. Burchell ultimately concludes that the High Court “rightly convicted [Pistorius] of culpable homicide”.
I should point out that Professor Burchell made these statements following the initial High Court judgment, rather than in response to the judgment of the SCA. His comments were indeed made long before (in September 2014) the SCA hearing. However, it is clear that his explanation regarding the centrally important role of knowledge of unlawfulness was not placed before the SCA – it appears that his short comment on the case was published only online (and not in a formal journal).
If Burchell’s explanation of the role of knowledge of unlawfulness had been brought to the SCA’s attention, the Court might have been thereby guided to have sound perspective on the relationship between dolus eventualis and putative private defence, even though it might still have reached a different conclusion (murder as opposed to culpable homicide) as a matter of judgment.
Professor Snyman’s assessment on the accepted facts of the Pistorius case
It is somewhat surprising to discover that Professor Snyman, in his independent application of the Law to the accepted facts (i.e. the same accepted facts to which the SCA applied the Law) also – just as Professor Burchell does – arrives at an outcome of culpable homicide, similarly based on the absence of operative knowledge of unlawfulness as an essential element of dolus eventualis. Looking at the quotes about to follow, one would be forgiven for suspecting that the two learned authors secretly compared notes before making statements regarding the case. Of course, they did not.
Professor Snyman explains: “As ek ’n inbreker in die nag doodskiet, het ek ’n kleurlose opset. My opset is nie gekleur deur wederregtelikheidsbewussyn nie. Ek weet of ek glo dat ek in selfverdediging optree. Dit beteken dat ek glo dat ek regmatig optree….Die begrip ‘opset om te dood’ wat in die reg gebruik word, bestaan altyd uit kleurlose opset plus wederregtelikheidsbewussyn. Dit is die tegniese begrip opset in strafreg en staan bekend as dolus.” (Emphasis added.)
English translation: “If I shoot and kill an intruder at night, I have [only] colourless intent. My intent is not coloured by knowledge/awareness of unlawfulness. I know or believe that I am acting in self-defence. That means that I believe that I am acting lawfully…The concept ‘intent to kill’ as used in Criminal Law, always consists in colourless intent plus knowledge of unlawfulness. It is the technical concept ‘intent’ in Criminal Law and is known as dolus. (Emphasis added.)
In the context of the specific facts as accepted in the Pistorius case, Snyman elucidates the fact that lack of knowledge of unlawfulness means that an element of intent is absent as follows: “As ek in die middel van die nag geluide in die toilet hoor en ek glo dit is ’n inbreker…[al skiet ek dan] met die [kleurlose] opset om die inbreker te dood, het ek nie opset in die regstegniese sin van die woord nie. Ek het nie dolus nie, omdat ek nie wederregtelikheidsbewussyn het nie.” (Emphasis added.)
English translation: “If I hear noises in the toilet in the middle of the night and I believe that it is an intruder…[and I then shoot] with the ‘colourless’ intent to kill, I do not act with intent in the technical legal sense of the word. I do not have dolus, because I do not have knowledge of unlawfulness.” (Emphasis added.)
The learned author continues to explain that the accepted facts indicate a situation of putative private defence, and that the accused’s state of mind at the critical moment must be assessed from a subjective point of view: “Ek tree op in ’n gewaande noodweer, ook bekend as putatiewe noodweer. Dit is nie werklike noodweer nie…Alles hang af van wat subjektief in die beskuldigde se kop aangegaan het op die kritieke oomblik – wat was sy subjektiewe voorstelling van die feite…” (Emphasis added.)
English translation: “I am acting in supposed private defence, also known as putative private defence. It is not actual private defence… Everything depends on what the subjective state of mind of the accused was at the critical moment – what he subjectively perceived the facts to be…” (Emphasis added.)
In the light of the basic facts as accepted in the Pistorius case, Professor Snyman expresses the view that, although the High Court’s statements (regarding the other aspects of the formulation of dolus eventualis) were not entirely legally correct, the Court was correct in its ultimate finding that Pistorius did not act with intent (as required for murder). However, just as Professor Burchell points out, the real reason is that, if it is found on the facts that he did not realise that he was not (or no longer) acting in valid private defence, he would lack knowledge of unlawfulness and therefore lack intent. In terms of the basic facts accepted by the High Court, Snyman accordingly concludes:
“Pistorius het nie [op die kritieke oomblik] besef [dat] hy wederregtelik optree nie. Hy het gedink hy tree op in noodweer. Die noodweer was nie objektief aanwesig nie. Dit het net in sy gedagtes, in sy subjektiewe voorstelling bestaan….[Die Hof se uitspraak] is ’n onindrukwekkende uiteensetting van die regsrels, maar [dit] sou tot dieselfde gevolgtrekking gekom het, al [was] die regsrels korrek uiteengesit.” (Emphasis added.)
English translation: “Pistorius did not realise that he was acting unlawfully [at the critical moment]. He thought he was acting in private defence. The need for private defence was not objectively present. It existed only in his mind, in terms of what he subjectively supposed the situation to be…[The judgment of the High Court] reflects an unimpressive articulation of the legal rules, but [the Court] would have reached the same conclusion [i.e. culpable homicide] if the legal rules had been correctly articulated.” (Emphasis added.)
Just as in the case of Professor Burchell above, Professor Snyman made these statements following the initial High Court judgment, rather than in response to the judgment of the SCA, and it is similarly clear that Snyman’s explanation regarding the central role of knowledge of unlawfulness was not placed before the SCA. Again, the above statements were published online (on Netwerk24), and not in a formal journal.
The heavyweight champions versus the SCA: What does this mean?
As mentioned at the outset, for Oscar Pistorius himself, the end of the road has been reached in terms of a murder verdict. History has been written, and murder it is.
What, however, does it mean that the two leading authors on South African Criminal Law independently regard the Pistorius case as clearly one of culpable homicide while the SCA decided – on the same facts as accepted in the High Court – that it is one of murder?
As alluded to at various points above and also in my five-part article from January 2016, one could, in my respectful view, form a valid opinion either way as to what the outcome should have been (i.e. culpable homicide or murder) in terms of a fully correct application of the Law.
The fact that the opinion of Professors Snyman and Burchell is that culpable homicide is the appropriate verdict does not mean that the SCA would also necessarily have reached that conclusion on the correct application of the Law. It could still as a matter of judgment have convicted Pistorius of murder. Nevertheless, as the concurring conclusions of Snyman and Burchell indicate, this might have been less likely.
What is a fact, however, is that the process of legal reasoning followed by the SCA in reaching the verdict was, with respect, not entirely sound (as also discussed in my January article). For the sake of the Law, it is imperative that the errors involved be recognised and duly corrected when a matter of dolus eventualis in the context of potential putative justification again arises in the South African Courts.
I will continue this discussion in Part 2 of the present article, with further reference to the leading authors on South African Criminal Law, and will also therein comment on selected aspects of the sentencing due now in June 2016.