An accused cannot be held criminally liable by a court until he is considered to be
culpable, a process which entails establishing criminal capacity and intention (dolus)
or negligence (culpa). Determining a perpetrator’s necessary intent in the form of
dolus eventualis has proved to be a predicament in South African jurisprudence. This
type of intent occurs when a person does not aim to cause the unlawful act, however,
he subjectively foresees the likelihood that in pursuing with his conduct, the unlawful
result will possibly happen, and he reconciles himself to this possibility. The problem
with this form of intention, especially where the death of another is caused recklessly,
is, amongst others, reservations as to whether the perpetrator’s foresight was of a
real, reasonable or a remote possibility.
This research examines the imperatives and rationale for preceding and current
interpretations and applications of dolus eventualis and associate concepts in South
African as well as in selected foreign legal frameworks in order to provide a
comprehensive perspective on the subject. In this regard, the study challenges
conflicting judgments on the application of dolus eventualis in domestic courts,
especially as regards homicide- and putative private defence cases, amongst others.
It is evidenced that in case law concerning dolus eventualis, legal rules were not
properly articulated when determining this type of criminal intent. In this investigation,
the legislative framework applicable to dolus eventualis under international law is also
critically evaluated with the aim of facilitating the comprehension of this element in
South African law.
As the concept of dolus eventualis is an indispensable concept in South African
criminal law, recommendations are proposed on the application and interpretation of
dolus eventualis suitable to the South African landscape, which includes possible law
reform. / Criminal and Procedural Law / LL. D. (Criminal and Procedural Law)
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/26460 |
| Date | 11 1900 |
| Creators | Awa, Linus Tambu |
| Contributors | Mollema, Nina, 1965- |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (xii, 270 leaves), application/pdf |
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