Can’t tell your dolus eventualis from your dolus directus? A brief late reflection on the Pistorius verdict
September 17, 2014 Uncategorized

English criminal lawyers were transfixed by the spectacle of Judge Thokozile Masipa delivering her judgement on Oscar Pistorius.

Her calm and authoritative handling of the trial had been exemplary; something that could not be said for the absurdly aggressive prosecutor Gerrie Nel who played to the gallery while, as tends to happen with bullies, losing the sympathy of the court.

Gerrie Nel. Absurdly aggressive

Gerrie Nel. Absurdly aggressive

Not that Judge Masipa was above a little court-room drama herself. Many judges might have announced the verdict and then given the reasons; instead she delivered several hours of legal reasoning, rendered the more gripping by occasional stumbles over her script and the taking of unexpected breaks. Her occasional pauses to sip water seemed invested with significance; and she eventually arrived at a verdict that confounded expectations: not guilty of murder, guilty only of culpable homicide.

Judge Masipa. Calm and Authoritative

Judge Masipa. Calm and Authoritative

It has also divided opinion, with many questioning how she could possibly have failed to convict Pistorius of murder. Here I found her reasoning a little hard to follow. Once she had – rightly in my view – acquitted him of intending to kill Reeva Steenkamp, she confused me, and perhaps to some extent herself, with the alternative of dolus eventualis murder. It an unfamiliar phrase in English courts, equating to knowingly and unlawfully taking the risk of killing someone. In English law that is not murder but manslaughter: in this country murder requires nothing less than an intent.  On the other hand, if discharging a gun in the direction of someone behind a toilet door – even if you believe that person to be an intruder – is not overwhelming evidence of knowingly taking the risk of killing, it is hard to know what would be.

Pistorius was, perhaps, a lucky man.

Judge Masipa’s finding that Pistorius was guilty of culpable homicide was based on her finding that he had acted only “negligently”. Here again the law of South Africa, superficially so similar to English law, differs significantly. In England you can commit manslaughter by negligence, but it has to be gross negligence. If you kill someone through ordinary carelessness that is generally speaking not a crime at all (although there are exceptions, notably causing death by careless driving). The South African law of culpable homicide, on the other hand, seems to be made out even if the negligence in question is less than gross. That does not mean, of course, that Judge Masipa did not in fact think that he was negligent to a very high degree.

Perhaps her thoughts will become more apparent at the sentencing hearing. In the meantime, anyone looking for a lucid explanation of the verdict need look no further than Dan Bunting.

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"5" Comments
  1. Baldrick of Counsel

    At times Gerrie Nel’s cross examination was simply absurd. He was clearly never heard the injunction that cross examination should never be cross. Or indeed that itvshould be intelligent.

  2. I’m not a lawyer and I have my information from the German Wikipedia. I think in Switzerland there is conscious negligence. It means someone knows the risk but believes it won’t go wrong. Then there is dolus eventualis. The person also knows there is a risk but it doesn’t matter to them.

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