I think it is only appropriate if I comment on the Oscar verdict seeing that I did cover certain aspects of the trial on National television. Without offending my colleagues I have to agree with the judgment of the Honourable Masipa. With my knowledge of criminal law and having taught it over the years at UKZN, the dolus eventualis enquiry has been misunderstood by the public at large. Dolus simply means intention, which is one of the elements of murder. The state in a criminal matter for murder would have to prove this intention aspect, that is, the accused intended to kill the victim. There are different forms of dolus, one which is important here is that of dolus eventualis which merely illustrates that although the accused didnt have the intention to kill the victim, he foresaw the possibility that if he persists in his actions it may lead to the victims death. Yes I know you all are thinking at this point even though it might be argued that Oscar didnt intend killing Reeva he did forsee the possibility that shooting behind the closed door would cause death to her BUT the dolus enquiry refers to the accused foreseeing killing that particular person, herein lies the 1st problem, Oscar was under the impression that it was an intruder behind the bathroom door so even though he shot and foresaw the possibility of death occuring, it was the intruders death and not that of Reeva. 2nd problem is that with dolus it is strictly a subjective enquiry where you have to place yourself in the position of the accused and determine what he foresaw. We cannot judge the accused conduct against that of another person if we do that then it changes the enquiry to an objective one were the accused conduct must be judged in accordance with what another reasonable person would have done in a similiar situation. Hence it becomes a culpa enquiry. Cases have said and I quote S v Maritz were the court held that one must be wary of making the leap of what the accused foresaw to what he must have foreseen.. In addition my friends one has to accept that the only version before the court was that of Oscar, the versions of the witnesses are circumstantial and they cannot be said to be eye witnesses to the crime in question. The law is clear in this respect that if a court is presented with one version ie that of the accused then this version has to be accepted to be the reasonably possibly true version. Unfortunately I accept that an innocent life has been lost but our law is clear and all doubt needs to be dispelled with in a criminal matter if an accused is to be found guilty. By F. Khan (Lecturer at UKZN)
Posted on: Wed, 17 Sep 2014 22:57:05 +0000
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