- S V Botha 2019 (1) SACR 127 (SCA)
Relevant word definitions and/or explanations
There are three forms of “intention” (dolus) (Afrikaans: “opset”) which are, according to p183 of Snyman’s Criminal Law, fifth edition as published by LexisNexis, the following:
(1) Dolus directus (direct intention) (Afrikaans: “oogmerkopset”)* which comprises a person's directing his/her will towards achieving the prohibited result or towards performing the prohibited act. This result or act is his/her goal. S/he desires the act or result.
(2) Dolus indirectus (indirect intention) (Afrikaans: “opset by noodwendigheidsbewussyn”)* means that the prohibited act or result is not the suspect's goal, but s/he realises that if s/he wants to achieve his/her goal, the prohibited act or result will of necessity materialise.
(3) Dolus eventualis (legal intention) (Afrikaans: “opset by moontlikheidsbewussyn”)* means that a person acts with intention in the form of dolus eventualis if the commission of the unlawful act or the causing of the unlawful result is not his/her main aim, but:
(a) s/he subjectively foresees (Afrikaans: “voorsien”)* the possibility that, in striving towards his/her main aim, the unlawful act may be committed or the unlawful result may be caused, and
(b) s/he reconciles (Afrikaans: “versoen”)* him-/herself with this possibility.
Dolus supra is one form of mens rea (fault) (Afrikaans: “skuld”), while the other form is culpa (negligence) (Afrikaans: “nalatigheid”).
According to Snyman on p209 of his Criminal Law supra, the following test is generally accepted as the complete test to determine “negligence”:
“A person’s conduct is negligent if -
1. the reasonable person in the same circumstances would have foreseen the possibility
(a) that the particular circumstance might exist; or
(b) that his/her conduct might bring about the particular result;
2. the reasonable person would have taken steps to guard against such a possibility; and
3. the conduct of the person whose negligence has to be determined differed from the conduct expected of the reasonable person.
The conclusion that the relevant person was negligent can only be drawn once all three abovementioned requirements have been complied with.”