As the defence in the Jub Jub murder trial continues in Soweto it is becoming apparent that the form of intention required for a conviction is not completely understood by the hip-hop star.
Murder is the unlawful and intentional killing of another human being.
Intention is divided into three types of dolus as opposed to negligence which is culpa.
The three forms of dolus are directus, indirectus (not applicable) and eventualis which is where the focus lies.
When four high school pupils were killed, allegedly after a race between two Mini Coopers went horrifically wrong in Mdlalose Street, Protea North, nobody ever suggested that the two accused had purposely set out to kill these children.
Dolus Directus (direct intent), is 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.
Accordingly I have no doubt that neither accused purposely set out to kill anyone and when Jub Jub says it was not his intention I believe him.
However 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, as we have seen, consists in either intention or negligence. Intention consists in deliberate criminal conduct while negligence consists in accidental criminal conduct.
In terms of Dolus Eventualis, 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 while in conscious negligence, the result is involuntary.
In this case if the suspects were racing or drunk and driving recklessly then, unless they are not from this planet, they would know that by committing those crimes (speeding, drunk and reckless driving) the very real danger exists that they could land up killing others if not themselves and yet reconcile themselves to that risk by taking to the street.
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.
Accordingly the issue of whether the accused are guilty will be decided by proof — or lack thereof — of the form of intention described above rather than whether there was any desire on the part of the accused to commit murder.
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