'Soweto drag race was murder'

Soweto is still reeling from the news that four high school pupils were killed when an alleged race between two Mini Coopers went horrifically wrong. The incident occurred in Mdlalose Street, Protea North at around 4.00pm yesterday.

Allegedly the two vehicles were racing along the two-way street which runs between Protea Glen and Protea North — with one in each lane but parallel to each other — when a car approached from the opposite direction leaving the Mini on the wrong side of the road in trouble. As a result the driver tried to swerve back into the left hand lane but only managed to crash into the other Mini.

Both vehicles then ramped onto the pavement and mowed down four young boys who were walking home from school with two other friends. The youngsters aged between 17 and 19 were still in their school uniforms at the time.

Police confirmed that four of the boys were killed while the other two are in a critical condition having sustained multiple fractures and head injuries. Three of the boys killed were from Jules High School in the Johannesburg CBD and one from Altmont High School in Protea North.

The two drivers of the Mini Coopers were arrested following the incident and will appear in the Protea Magistrate’s Court on Tuesday facing charges of culpable homicide and negligent and reckless driving.

Very little or no comfort whatsoever to the families and friends of the children who died or are lying critical in hospital.

South Africa has one of the worst records on the planet when it comes to fatalities arising from road accidents.

Regardless of efforts by authorities to try and rein in those offenders who simply couldn’t care less about the warnings regarding the dangers of drinking, drugs or reckless driving, the statistics continue to demonstrate the general disregard for human life.

Culpable homicide is the unlawful and negligent killing of another human being.

It is distinguished from murder only in terms of the intention of the accused. Murder is the unlawful and intentional killing of another human being.

The key is therefore what was the intention of the accused at the time that they drove those vehicles.

If, as alleged, they had been racing down Mdlalose Street then it is with the utmost respect not a case of culpable homicide but rather murder. Moreover the sooner we start to recognize this fact the sooner that people will start taking the laws of the road seriously — for their own sake.

It is a firmly established principle of criminal justice that there can be no liability without fault. The element of fault as a requirement for liability rests upon the moral and ethical view that only persons who are deserving of blame ought to be punished.

Fault consists in either intention (dolus) or negligence (culpa). Intention consists in deliberate criminal conduct while negligence consists in accidental criminal conduct. There are three forms of intention and two forms of negligence.

Dolus Directus (direct intent), where the consequences of an action were both foreseen and desired by the perpetrator. You want to kill someone, so you shoot him. Not the case here. Dolus Indirectus (indirect intent), where secondary consequences in addition to those desired by a perpetrator of an act were foreseen by the perpetrator as a certain result. You want to kill someone and blow up his car while he and his family are in it, knowing that you will kill them as well by doing so. Also not applicable.

In terms of Dolus Eventualis however, where a perpetrator foresees consequences other than those directly desired as a possibility of his actions and reconciles himself to the possible result, we are in business. That is to simply accept the possible result and to live with it if it happens.

How does Dolus Eventualis differ from Negligence?

In dolus eventualis, the result is voluntary and in conscious negligence, the result is involuntary.

In this case if the suspects were racing, then unless they are not from this planet they would know that by committing those crimes (speeding, reckless driving) the very real danger exists that they could land up killing others if not themselves and yet reconcile themselves to that risk.

They voluntarily assume a risk which could result from their conduct as opposed to persons whose actions do not lend themselves to foreseeing the tragic consequences that unfortunately do arise.

If that is the case the charge should be murder and not culpable homicide.