I have seen and heard it all now! How could a judge and the senior Assessor get the simple test of dolus eventualis so wrong in framing it, let alone applying it to the factual matrix. Compounding the factor is the Senior Assessor is the Head of Jhb Legal Aid Office? A student who has passed Criminal Law, let alone the Law of Evidence, will understand what is meant by legal intention (dolus eventualis). Chickens are coming home to roost for televising the trial, having the mostly passive Bench when it came to admissibility issues and not distinguishing itself in displaying the legal science skill of evaluating evidence. With all the furore and hype around the question is whether are donning mediocrity with adulation and praises just for political correctness and expediency? Which version of the Accused was reasonably possibly true as being borne by proved facts? Evidence is accepted because of cogency and reliability, not because it is partisanly convenient for the decision the Court wants to make. The Court does not make up a case or defence for either side, if indeed it is an impartial umpire! You can never assess and evaluate testimony properly if you do not use common sense and logic in applying the Basic Principles of Law of Evidence to the facts. Get the facts right first then identify the applicable principle of Criminal Law before evaluating the quality of evidence adduced to test the sufficiency, cogency and reliability of testimonies from witnesses. To put in a potjiekos of defences that exclude intention by a little bit putative private defence, aberratio ictus, error in objecto, albeit inessential, does lead to incoherence of proportions because a subjective test has been confused with an objective test. The concept of legal intention (dolus eventualis) was well settled in S v Beukes 1988 (1)SA 511(A) where the then AD said it is where the Accused actually and subjectively foresees the real possibility of his unlawful act causing the death of the deceased, and yet proceeds with his act recklessly as to whether death occurs or not. Although the test for dolus eventualis is subjective there is still utility in looking at objective circumstances to draw inferences. Sensible caution in deducing inferences of dolus eventualis from objective probabilities is well set out in S v Maritz 1996 (1)SACR 405 (A). Juxtapose these two cases and you will see why the Pistorius Bench is wrong in not finding him guilty of murder. Adv. Nkutha Former Criminal Law lecturer-U.J. This is also a short course in criminal law lecture for those who are virgins in this law game. Do u agree with the honourable Advocate Nkutha? Vuka Mnyamane!
Posted on: Fri, 12 Sep 2014 09:23:23 +0000
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