Dolus eventualis

Definition

A person acts with dolus eventualis if the causing of the forbidden result is not his main aim, but

(1) he subjectively foresees the possibility that, in striving towards his main aim, his conduct may cause the forbidden result and

(2) he reconciles himself with this possibility.

Examples of dolus eventualis:

(1) X disconnects sections of a railway track in order to derail a train. He does

not desire to kill other people, because his immediate goal is to commit sabotage and in this way to express the resentment he feels against the state.

He is nevertheless aware of the possibility that people may die if the train is

derailed, and he reconciles himself to this possibility. If he succeeds in

derailing the train, and people die, it is futile for him to allege that he did not

intend to kill people (facts analogous to those in Jolly 1923 AD 176).

(2) X wants to burn down a building. He foresees the possibility that Y may be

inside it, but nevertheless proceeds with his plan, and sets fire to the building. Y is indeed inside, and dies in the flames. In the eyes of the law X intentionally caused Y's death.

 

(3) X and Z undertake a joint robbery. X knows that Z is armed with a loaded revolver. He also knows that Z may use this weapon if the people whom they want to rob, offer resistance. They go to a shop, which Z enters while X stands watch outside. The proprietor of the shop (Y) resists and Z shoots and kills him. In the eyes of the law not only Z, but also X had the intention to kill and is guilty of murder (Nsele 1955 (2) SA 145 (A)).

Dolus eventualis.

 A variation of the well-known story of the legendary Swiss patriot Wilhelm Tell. In order to prove how well he can shoot with his bow and arrow, X (Wilhelm Tell) places an apple on the head of his son, Y, and shoots an arrow at the apple. He does not wish to kill Y, whom he dearly loves. He wants the arrow to pierce the apple on Y's head. However, assume that the following happens: X foresees the possibility that, in attempting to shoot the apple, the arrow might strike, not the apple, but Y instead, killing Y.

He aims at the apple, but the arrow strikes Y, killing him. If X is charged with having murdered Y, can he succeed with a defence that he never intended to kill Y, since he merely wanted the arrow to strike the apple? Assuming that it is proven that he in fact foresaw the possibility of the arrow striking Y instead of the apple, and that he had reconciled himself to this possibility, his defence will not succeed. In the eyes of the law X had the intention to kill Y. This form of intention is known as dolus eventualis.

 

THE TEST FOR INTENTION IS SUBJECTIVE

The test in respect of intention is purely subjective. The court must determine

what the state of mind of that particular person Ð the accused (X) Ð was when

he committed the act. When determining whether X had intention, the question is

never whether he should have forseen the result, but whether he foresaw it as an

actual fact. To say that X ``should have foreseen'' says nothing about what X

actually thought or foresaw; it is simply comparing his state of mind or conduct

with another's, namely the fictitious reasonable person. To do this is to apply the

test in respect of negligence, which is objective. In deciding whether X had intent

the question is always: How did X perceive the situation, what knowledge did he

have, and did he will the consequence or foresee it as a possibility?

THE DISTINCTION BETWEEN MOTIVE AND INTENTION

Intention must not be confused with the motive for committing the crime. In

determining whether X acted with intention, the motive behind the act is

immaterial (Peverett 1940 AD 213). For this reason X is guilty of theft even though

he steals from the rich in order to give to the poor. A good motive may at most

have an influence on the degree of punishment.

GLOSSARY

dolus    intention

dolus directus   direct intention

dolus indirectus     indirect intention

dolus eventualis   a form of intention in which X foresees a possibility   and reconciles himself to such possibility