Criminal Law

LWCRA2-22

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Criminal law
fault
Case Study A

The Professor and Student (scenario-based discussion)

Michael, a car mechanic, is repairing a customer's vehicle. While working
on the engine, he accidentally leaves a wrench inside the engine
compartment. He realizes his mistake but decides to ignore it, assuming
it won't cause any harm. The customer takes the car for a test drive and,
due to the wrench interfering with the engine, gets into an accident and
suffers injuries. The incident raises questions about Michael's intention,
including direct intention, indirect intention (dolus eventualis), and
negligence,
Source: Mafuso, 2023
 Week 5: Fault as a general requirement for criminal liability.
Begin the session by introducing the topic of fault as a general requirement for criminal liability. Explain
that fault refers to the mental state or level of culpability of an individual when they commit a criminal
offence. Emphasise that in most legal systems, including South African law, criminal liability requires
proof of fault.
Intention
Focus areas for the lecturers ( Assessments short and long questions)
1. Introduce the two main types of fault: intention and negligence.
2. Discuss the different 3 forms of intention: give examples of those forms in scenarios
3. Explain the test for intention is subjective.
4. Discuss the importance of establishing fault in determining criminal liability.
5. Highlight that the presence or absence of fault may affect the defences available to the accused.
6. Provide case studies or scenarios that illustrate different levels of fault and ask students to analyse
them.
fault

•Fault:
•1) intention
(DOLUS)
•2) negligence
(CUPLA )
THE TWO ELEMENTS OF
INTENTION

• Intention, in whatever form, consists of two elements,

namely a cognitive and a conative element.
• The cognitive element consists in X’s knowledge or awareness
of
• • the act (or the nature of the act)
• • the existence of the defi nitional elements
• • the unlawfulness of the act
Cognitive element

The conative element consists in X’s directing his will

towards a certain act or result:

X decides to accomplish in practice what he has previously

only pictured in his imagination.

This decision to act transforms what had, until then, merely

been daydreaming, wishing or hoping into intention.
Forms of intention
1. Direct intention (dolus directus)

person acts with direct intention if the causing of the forbidden result is his aim or
goal.

2. Indirect intention (dolus indirectus) (Kewelram 1923)

person acts with indirect intention if the causing of the forbidden result is not his
main aim or goal, but he realises that, in achieving his main aim, his conduct will
necessarily cause the result in question.
types
3. Dolus eventualis (Jolly 1923; Nsele 1955)

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

he subjectively foresees the possibility that, in striving towards his main

aim,

his conduct may cause the forbidden result and

he reconciles himself with this possibility.

Dolus eventualis
• NB REQUIREMENT:
• Dolus eventualis NEEDS actual contemplation by of the
possible consequence in question.
• Intention is not present because X “ought to have
foreseen”.
• X must have foresaw the possibility of a result ensuing.
Direct and indirect intention
•Example of direct intention
•X wants to kill Y. X takes his revolver, presses it against
Y’s head and pulls the trigger. The shot goes off and strikes
Y in the head. Y dies instantly.

•Remark
•Note that the reason the person performs the act or causes
the result is irrelevant. In the example above, it therefore
makes no difference whether X kills Y because he hates
him, or because Y is dying of a terminal illness and X
wishes to relieve him of the pain he is experiencing.
example
Example

(1) X shoots at a target through a closed glass window. His main purpose is to hit the target, but he realises that by
doing this, he must necessarily also shatter the window. If he decides, nevertheless, to act to attain his main
purpose, he naturally also wills those consequences that he realises must inevitably accompany his main purpose.
If he shoots at the target and shatters the window, he cannot claim that he never intended to shatter the window.

(2) X’s merchandise is insured and is stored in Y’s building. To obtain the insurance money, X sets the merchandise
on fi re, fully realising that the building itself must necessarily catch alight. When this happens, the building
burns down. X may be charged with arson because he had the intention to set the building on fi re – Kewelram
1922 AD 213.

• Remark

• This form of intention is present when a person visualises what he wants to achieve, realises that in order to
achieve it, something else will necessarily be caused, but nevertheless proceeds with his conduct.
Introduction to dolus eventualis
• Dolus eventualis. A variation on 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 loves dearly. 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 Y instead of the apple,
thus 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 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 nevertheless 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.
Example dolus eventualis
•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 towards 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).

(1) X wants to burn down a building. He foresees the possibility that Y may be inside the building, but nevertheless
proceeds with his plan and sets fi re to the building. Y is indeed inside at the time and dies in the fl ames. In the
eyes of the law, X intentionally caused Y’s death.

(2) 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 Z, causing Z to shoot and kill 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)).
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 – the accused (X) – 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 actually foresaw it.
• 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.
• ?
PROOF OF
INTENTION
• Direct evidence, i.e. confession made in court,
presents no problems.
• Court may find that X acted intentionally on
indirect proof of intent: thus infer from evidence
and circumstances surrounding the events that X
had intent.
• Court must always be subjective when trying to
determine intent.
• Court must consider all circumstances of the court
and try and place itself in X’s position at the time
of the act and
• try determine whether X appreciated or foresaw
the result of his actions
Intention v Motive
• In determining whether X acted with intention,
• the motive behind the act is immaterial
• Motive may at most have an influence on the degree of punishment.
• Laudable motives, sympathy, etc. does not exclude intention
• If X did not want to commit the act, the result in no way affects the
existence of his intention
Mistake

• Mistake nullifies intention.

• If X was not aware of all the factors of intention (act; existence of all the
circumstances set out in the definitional elements; unlawfulness), X could not
have committed a crime.
• The test to determine whether mistake excludes intention is subjective.
• Mistake need not be reasonable: The question is not whether a reasonable
person in X's position would have made a mistake.
• The test in respect of intention is subjective.
• No room for objective criterion such as reasonableness
• . Thus X’s characteristics, superstitions, etc need to be taken into account to
determine whether intention is excluded due to mistake.