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The Different Forms of Criminal Liability

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The Different Forms of Criminal Liability

Criminal Law Durban | Martin Vermaak Attorney

In today’s modern world, keeping up with big court cases is easier than ever before. We witnessed Oscar Pistorius’ case broadcasted on live TV, journalists sit in Court constantly tweeting every happening for all their followers to see, News24 relentlessly providing you with notifications of what’s new, how it happened and who did it!

Nowadays there is a whole range of different platforms from which you can find out what is happening. However with this plethora of media available, there is still a large amount missing in terms of explaining what certain things mean.

I recall the Oscar Pistorius case. All eyes were on this matter – everybody suddenly became ‘an expert in criminal law’, and everybody used the term “Dolus Eventualis”. The public said it quietly to each other as though it was a Harry Potter phrase and something might happen – but nobody could really explain what this term meant. They asked why were there comments on Judge Masipa’s interpretation of it? They questioned each other, ‘Was she right? Was she wrong?’ and archly raised eyebrows.  Strange then, that out of all the questions asked, nowhere to be heard was the question ‘What does it mean?’

Let’s examine criminal liability:

Firstly there is a difference between doing something intentionally and doing something negligently. Simply due to the fact that it is shorter and simpler to understand, let us begin with negligence.

Someone may be found guilty of an offence even in a matter where they had no intention to do anything wrong. The test to determine negligence is:

ldquo if the reasonable person in the same circumstances would have foreseen the possibility that the particular circumstance might exist; or that their conduct might bring about a particular result. The reasonable person would have taken steps to guard against such a possibility, and that the conduct of the person whose negligence has to be determined differed from the conduct of the reasonable person.”

Who is this reasonable person? The reasonable person is a fictitious person which the law has created in order to personify an objective standard of reasonableness against which a supposed negligent act can be compared. So in short, a person is guilty of a negligent offence if their conduct does not comply with the standard of care reasonably required by the Law.

Now on the opposite end of the spectrum we have those crimes that are done deliberately and with every intention of doing so. In terms of Law, the basic view of intention is that the person directed their will towards the commissioning of an act whilst knowing full well that this act is not lawful. However, intention can further be broken down into three separate forms; dolus directus, dolus indirectus and dolus eventualis.

Dolus directus Is your direct intention, so for example waiting outside for somebody to get home so that you can shoot them, and you do so, resulting in their death. It was your intention to kill them by way of shooting and you acted accordingly.

Dolus indirectus is your indirect intention. Using the same example as above, let’s say that you were hiding behind someone’s car, and in order to stay hidden you shoot them through the car window. Breaking the car window is not your intention, however it is a necessary damage in order to complete your action. Therefore, you have committed dolus directus in terms of shooting someone and also dolus indirectus in terms of breaking the car window.

Dolus eventualis – Finally, as aforementioned, this form of intention is where you subjectively foresee the possibility of a certain outcome, and you reconcile yourself with the possibility of it occurring. For example, whilst hiding behind the car and you’re taking aim, you understand that the bullet may go through your target and hit the person behind them. Although your intention is to kill the one and not the other, you understand that it may happen, and you still go through with it anyway. Therefore, when it comes to proving liability for the death of the second person, it would be by way of committing dolus eventualis.

From this it is clear that when discussing criminal liability, direct intention to affect one result and not another is not the be-all and end-all in terms of proving intention. It is much rather the case of proving that a crime committed required a degree of thought to bring about such a result and the thought entered into was considered, understood, reconciled and affected.

Had the public been made aware of these facts instead of being at the mercy of the sensation seeking so called journalists; perhaps they also could have been enabled toward a more enlightened conclusion instead of left muttering in uncertainty.


Duncan O’Connor

Candidate Attorney

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