Intention II
Mistake

MISTAKE NULLIFIES INTENTION

In the previous sections explained explained that intention must relate to

(1) the act

(2) all the circumstances set out in the definitional elements, and

(3) the unlawfulness of the conduct

X must be aware of all these factors. If she is unaware of any of them, it cannot be said that she intended to commit the crime. If such knowledge or awareness is absent, it is said that there is a ``mistake'' or ``error'' on X's part: she imagined the facts to be different from what they in fact were; in other words, mistake excludes or nullifies the existence of

 

The following are two examples of mistake relating to the act (or – what amounts to the same - the nature of the act):

(1) Within the context of the crime of malicious injury to property, X is under the impression that she is fixing the engine of somebody else's motorcar that has developed problems, whereas what she is in fact doing to the engine amounts to causing ``injury'' to it.

(2) Within the context of the crime of bigamy, X thinks that she is partaking in a communion service in a church, whereas the service in which she is partaking is in fact a marriage ceremony!

The following are two examples of mistake relating to circumstances set out in the definitional elements:

(1) X is hunting game at dusk. She sees a figure which she takes to be a buck, and shoots at it. It turns out that she has killed a human being. She will then not be guilty of murder, since she did not intend to kill a human being.

(2) (Within the context of the statutory crime of unlawfully possessing drugs) X thinks that the container containing powder which she received from a friend is snuff to be used by her as a cure for a certain ailment, whereas it in fact contains matter listed in the statute as a drug which may not be possessed.

The following are two examples of mistake relating to unlawfulness:

(1) X thinks that she finds herself in a situation of private defence because Y is threatening her with a revolver, whereas Y is merely joking and the ``revolver'' is in fact a toy.

(2) X believes that there is no legislation or legal rule which prohibits her from possessing a rhinoceros horn, whereas there is in fact such legislation. We shall discuss mistake relating to the unlawfulness of the conduct in some more detail below.

 

MISTAKE NEED NOT BE REASONABLE

Whether there really was a mistake which excludes intention is a question of fact. What must be determined is X's true state of mind and conception of the relevant events and circumstances. The question is not whether a reasonable person in X's position would have made a mistake.

MISTAKE MUST BE MATERIAL

Not every wrong impression of facts qualifies as a mistake, thus affording X a defence. Sometimes X may be mistaken about a fact or circumstance, and yet not

be allowed to rely on his mistake as a defence.

What would the position be if X intended to shoot Z, but it subsequently transpired that she mistook her victim's identity and in fact shot Y? Here her mistake did not relate to whether she was killing a human being but to the identity of the human being. Murder is committed whenever a person unlawfully and intentionally kills a human being, and not merely when a person kills the particular human being she intended killing. For this reason X in this case is guilty of murder. Her mistake about the object of her act (error in objecto) will not exclude her intention. Her mistake was not material here.

 

MISTAKE RELATING TO THE CHAIN OF CAUSATION

This form of mistake can occur only in the context of materially defined crimes, such as murder. X believes that the result will be brought about in a certain manner; the result does ensue, but in a manner which differs from that foreseen by X.

The following are examples of this type of mistake:

•X sets about killing Y by pushing her off a bridge into a river, expecting that she will drown; in fact, Y is killed because in her fall she hits one of the pillars of the bridge.

• X shoots at Y, but misses; Y, who suffers from a weak heart and nerves, in fact dies of shock.

Goosen 1989 (4) SA 1013 (A).

THE GOING ASTRAY OF THE BLOW (ABERRATIO

ICTUS) DOES NOT CONSTITUTE A MISTAKE

Description of concept

Aberratio ictus means the going astray or missing of the blow. It is not a form of mistake. X has pictured what she is aiming at correctly, but through lack of skill, clumsiness or other factors she misses her aim, and the blow or shot strikes somebody or something else.

Examples of aberratio ictus are the following:

(1) Intending to shoot and kill her enemy Y, X fires a shot at Y. The bullet strikes

a round iron pole, ricochets and strikes Z, who is a few paces away, killing her.

(2) X wishes to kill her enemy Y by throwing a javelin at her. She throws a javelin at Y, but just after the javelin has left her hand, Z unexpectedly runs out from behind a bush and in front of Y and the javelin strikes Z, killing her.

(3) Intending to kill her enemy Y, X places a poisoned apple at a spot where she expects Y to pass, expecting Y to pick up the apple and eat it. However, Z, and not Y, passes the spot, picks up the apple, eats it, and dies.

What all these examples have in common is that the blow aimed at Y went awry

and struck somebody else, namely Z. In order to decide whether in these types of

situations X has committed murder, it is necessary to ascertain whether X can be

said to have had intention in respect of Z's death.

Judging aberratio ictus situations

The most important judgment relating to aberratio ictus is that of Holmes JA in Mtshiza 1970 (3) SA 747

 (A). This judgment accords with the concrete-figure approach set out above. The judgment confirms that factual situations in which there is an aberratio ictus should be judged as follows:

(1) X will normally always be guilty of attempted murder in respect of Y - that is, the person she wished to, but did not, kill.

(2) As far as X's liability in respect of the person actually struck by her blow (Z), is concerned, there are three possibilities:

(a) If she had foreseen that Z would be struck and killed by the blow, and had reconciled herself to this possibility, she had dolus eventualis in respect of Z's death and is guilty of murder in respect of Z.

(b) If X had not foreseen the possibility that her blow might strike and kill someone other than Y, or, if she had foreseen such a possibility but had not reconciled herself to this possibility, she lacked dolus eventualis and therefore

cannot be guilty of murder. However, this does not necessarily

mean that X is not guilty of any crime. Murder is not the only crime of

which a person can be convicted if she causes another's death. There is

also the possibility of culpable homicide, which consists in the unlawful

negligent causing of the death of another. As we point out below in our

discussion of negligence, X will be negligent in respect of Z's death if the

intention to kill is absent, but if, as a reasonable person, she nonetheless

ought to have foreseen that she could cause the death of the victim (Z).

In that event, X will be guilty of culpable homicide.

(c) Only if it is established that both intention (in these instances mostly in

the form of dolus eventualis) and negligence in respect of Z's death are

absent on the part of X, will X be discharged on both a count of murder

and one of culpable homicide.

SUMMARY

(1) The intention must relate to the act, the circumstances contained in the

definitional elements and the unlawfulness of the conduct. X must be aware

(have knowledge) of all these factors. If she is unaware of any of these factors, it cannot be said that she intended to commit the crime. X is then mistaken as to the existence of these factors.

(2) Mistake need not be reasonable to exclude intention. The test to determine whether mistake has excluded intention is subjective.

(3) In order to exclude intention, the mistake must be material. Mistake is

material if it relates to the act, the circumstances set out in the definitional

elements or the unlawfulness of the conduct.

(4) In Goosen the Appellate Division held that a mistake with regard to the chain

of causation may indeed exclude intention provided the actual chain of events

differed materially from that envisaged by the perpetrator.

(5) (a) Aberratio ictus or the going astray or missing of the blow refers to a set of

facts in which X aims a blow at Z, the blow misses Z and strikes Y. This

is not a form of mistake

(b) In order to determine whether, in such a set of facts, X is guilty of an

offence, one should merely apply the normal principles with regard to

intention and negligence.

(c) It is wrong to apply the transferred culpability approach in an aberratio

ictus factual situation, that is to argue that because X had intended to kill

a human being and did just that, she necessarily had the intention to kill the actual victim.

 

(6) Absence of awareness of unlawfulness excludes intention.

(7) Awareness of unlawfulness implies that X is aware -

(a) that her conduct is not covered by a ground of justification

(b) that the type of conduct she engages in is actually regarded by the law as constituting an offence

(8) The effect of the decision in De Blom is that ignorance of or a mistake about the law excludes intention.