This is the text of the law in issue:
The High Court Order:
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Ntlameza NG HC LTA & – Law & the ORDER GRANTED
Posted: 24th April 2017 by James Grant in UncategorizedComments Off on Ntlameza NG HC LTA & – Law & the ORDER GRANTED
Police’s limited licence to kill
Posted: 7th April 2017 by James Grant in Criminal Law, Education, ZumaComments Off on Police’s limited licence to kill
The extent of force permitted in effecting and arrest is different to the extent of force permitted in private defence.
An arrest serves one legitimate purpose only: to secure attendance of a suspect at court to answer to a charge. The purpose of the right to use force in private defence is to protect person or property from an imminent attack or to end an attack that has commenced.
The law on the force permitted in effecting an arrest is set out in section 49 of the criminal procedure act:
“(1) For the purposes of this section-
(a) ‘arrestor’ means any person authorised under this Act to arrest or to assist in arresting a suspect;
(b) ‘suspect’ means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and
(c) ‘deadly force’ means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if-
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.”
Thus, notice, lethal force may not be used to effect an arrest for a suspected property crime – contrary to what some politicians who ought to know better have been saying.
On the other hand, the use of lethal force in defence of property is controversial. The leading case, S v Van Wyk 1967 AD, approved the use of lethal force in defence of property but only when the property is of significant value and there is no other means to protect it. This judgment was restrictive in itself. However, it is pre-constitutional, and one may expect that the Constitutional Court may well restrict it further. I am expecting that there will be a change in the meaning of significant value, which, under Van Wyk may be interpreted to be a reference to the property’s monetary value. I am expecting that, when our Constitutional Court considers this question – which it has surprisingly not had an opportunity to do – it will probably endorse the right to use lethal force in defence of property and, again, as did the Court in Van Wyk, limit it to circumstances in which there is no alternative. However, I am expecting that the Constitutional Court will restrict the use of lethal force to property of significant value where value is judged by – its real value – how necessary it is for the enjoyment of other rights: ones right to life, to employment, to shelter, to food. I expect that even under Van Wyk, and certainly under what I am expecting from the Constitutional Court, one will not be permitted to use lethal force in defence of property of trivial value or value which is unnecessary for the enjoyment of other rights. So, while you may use lethal force against someone, under Van Wyk and under what I expect from the Constitutional Court, to stop someone from burning down your home, you may not shoot someone for stealing a loaf of bread or stealing your big screen TV. Yes, someone’s life is worth more than a big screen TV.
The SAPS are bound to these same laws when acting in defence of property. So, for instance, while the police may not use lethal force to arrest you on suspicion of a property crime, they may use lethal force against you in defence of property – of significant (real) value.
Thus, either way, and unless the SAPS is acting in defence of property of significant real value in the sense described above, they may not use lethal force, and if their purpose is to arrest for a suspected property crime, rather than defend property, they may never use lethal force to effect that arrest.
When can one resort to lethal force? What if I or someone else is attacked? Can I use lethal force then?
The answer to this – is an unequivocal yes. Our law may be ass-like on many fronts, but on this question, it is not. If you or a loved one, or a stranger in your presence, is attacked and his/her life or bodily integrity is threatened, you may use such force as is necessary to end the attack. If there is no alternative and the life or bodily integrity (beyond the trivial – such as by a slap) is threatened, you may use lethal force and kill the attacker. This is incontrovertible.
Returning to what the police may do – they enjoy the same rights as all of us to act in private defence and the right to use circumscribed force in effecting an arrest. So, they may use lethal force in defence of property of significant (real) value – for instance, they would be permitted, as would you, to shoot someone who is about to set fire to someone’s home. They may not ever use lethal force in order to arrest someone for property crime.
However, in protecting a themselves or another person from serious violence, they may use lethal force, as you may, to protect that person, and, also, after the fact, to effect an arrest for a violent attack.
Comments Off on SARS Wars and Kidnapping
From the footage I have seen it seems as if someone blocks Vlok Symington’s attempts to leave the room at least twice. That would satisfy the conduct requirement for kidnapping. The next question is whether they had any lawful grounds? This is a value judgement. Unlikely a court will accept that the interests in retrieving an email, if mistaken sent, can justify detaining a person. Did those responsible have the required intention? Did they foresee that they were restricting his freedom of movement – very likely, yes. Did they foresee that they may not have valid authority to detain him and did they foresee that they may be committing a crime? In light of the audio, from the video and the emergency call, which those present must have heard – that he was complaining he was being held hostage – it is entirely possible that some of those responsible had the necessary intention and that kidnapping was indeed committed.
If someone was on the phone issuing orders to detain him, then whatever those acting on those orders did, the person issuing the orders did. If it was Tom Moyane on the phone issuing instructions to detain Symington then Moyane did, in law, whatever those acting on those orders did, as if Moyane did it himself. Questions of intention remain to be answered independently (subjectively) for anyone issuing orders – its the question of what s/he foresaw as possible. Arguably, s/he would (presumably) have had similar foresights to those in the room.
Imagine the accused was not Pravin Gordhan
Posted: 13th October 2016 by James Grant in UncategorizedComments Off on Imagine the accused was not Pravin Gordhan
Imagine the accused was not Pravin Gordhan, but, one Des who was CEO of a large multinational company. Imagine he was friends with a certain Tom, in upper middle management, who also worked for the company and that the two liked to go fishing at the sea. Imagine they dreamt of owning a small cottage at the sea from where they could spend long days fishing. Imagine that they had found the perfect cottage for sale – an urgent sale – for the sort of money that only Tom could obtain if he could get access to his retirement fund. Imagine that Tom was due to retire in two years and stood to suffer a significant penalty if he retired early and also that Tom couldn’t really afford to retire early. Imagine Des makes some enquiries and discovers that he has the discretion to authorise an early retirement and a re-employment – all if justified for operational purposes. He discovers that if he authorises the early retirement, he can also authorise that the company must pay the penalty. Imagine Des thinks: ‘no one can know what I was actually thinking – everyone trusts me implicitly – no one will question me’ – remember – imagine. Now, what if Des and Tom conspire and Des goes ahead? Des misrepresents that he is authorising the early retirement and then the subsequent re-employment for operational purposes. Tom’s pension is paid out, the company pays the penalty, and soon thereafter, Tom is re-employed. Now, imagine Des had confided in his wife, who objects to his now frequent fishing trips. He institutes for divorce and she goes to speak to one Shaun.
In this scenario, assuming it could all be proved, in my view, there could well be a conviction for fraud or theft. It all depends as the brilliant Prof Andrew Paizes (coauthor of the SA Law of Evidence) always wisely reminded me. It all depends on what the evidence is and on what the evidence can show Des was thinking.
Do I believe this applies to Pravin Gordhan? No, but then, I have to admit, I am biased. Nevertheless, I think it’s important that we realise that there is a possible scenario in which even someone of the moral authority of Pravin Gordhan could conceivable have committed the offences charged.
If we recognise this, then we are able to focus on and demand the sort of evidence that is, at least, relevant – both evidence which may incriminate and that which may exculpate.
Crimen injuria of groups
Posted: 7th January 2016 by James Grant in EducationTags: #PennySparrow, #Racismmustfall, #Racismwillfall, crimen injuria, criminal law.
Comments Off on Crimen injuria of groups
There is some suggestion that charges of crimen injuria for the racist insults of Penny Sparrow (and others) cannot attract liability in criminal law in SA because crimen injuria requires the relevant insult to be directed at an individual rather than a group.
Crimen injuria is defined as the intentional unlawful impairment of the dignity or privacy of another (Burchell, 2013, 4ed, 632).
The essential requirements of the offence are as follows:
1. Intention;
2. Unlawfulness;
3. Impairment of the dignity of another.
Some definitions include a qualification that the impairment must be serious (Milton, 1996, 492). However, it is clear that this qualification is accounted for under the requirement of unlawfulness – since the law does not concern itself with trivialities (de minimis non curat lex).
The suggestion under discussion here – that the the relevant insult must be directed at an individual rather than a group – would seem to be addressed to the intention requirement. That is, one may expect that this is a suggestion that the accused must intend to infringe the dignity of a particular specified victim. However, there appears no suggestion that the general principles relating to intention, according to which the identity of the actual victim is irrelevant, S v Pistorius 2015 SCA) do not apply to crimen injuria.
Our law recognises that one intends to kill whoever is killed if one throws a bomb into a crowd – even though one does not know who is in the crowd. This is known as dolus indeterminatus – general intention – in our law. In the same way, there seems not basis to suspect that this “bomb” could not take the form of an offensive social media post.
The application of general principles of intention to crimen injuria is supported in the leading text on common law offences in SA, South Africa, JRL Milton, South African Criminal Law and Procedure (vol II, 1996, p 516 n274) – although Milton was endorsing the view that general principles make dolus eventualis a valid form of intention for crimen injuria.
The authority for the proposition that the relevant insult must be directed at an individual rather than a group appears to arise out of Snyman (6th ed, p463). Snyman states:
“An attack, not against Y himself, but against some group to which he is affiliated (eg his language group, his religion, race or nationality) will normally not constitute a violation of his dignitas, unless there are special circumstances from which an attack on his self-respect can be deduced.”
Snyman cites the case of S v Tanteli 1975 2 SA 772 (T) as authority for this proposition.
It is a tragic irony, that this cases appears to be a possible obstacle – albeit a small one – to successful prosecution of statements such as “all black people are monkeys”. The alleged insult in Tanteli was that the language, Afrikaans, was only suitable to be spoken to or with black people [described, in that case, by the accused using the pejorative k* word].
The insult or sting arising out of the Penny Sparrow social media post – in case this has escaped some – that “black people are monkeys” is that it suggests that black people are, in themselves, inferior as of a lesser species.
There are several points to be observed here.
The first is that this case is a Transvaal Provincial Division case – now the Gauteng Provincial Division (situated in Pretoria). If it contains any precedent (and I will below argue it does not), that is, anything binding on cases that follow, it would in any event be restricted to Gauteng. Even in Gauteng, since the Tanteli case was a single Judge judgement, it does not bind courts sitting with more than one Judge (“higher” courts). It may, on the rules of precedent, be persuasive in “higher” courts in Gauteng or in other jurisdictions (provinces), but it is certainly not binding in “higher” courts or other jurisdictions.
Also, while the judgement is mentioned and relied upon in Snyman’s text on criminal law in South Africa, it is not mentioned in the other leading general text on criminal law – written by Burchell. Perhaps more importantly, it is mentioned in what is arguably the leading text on common law offences in SA (Milton, South African Criminal Law and Procedure (vol II, 1996) only as a case to be distinguished from the general principle. This may itself be read as an indictment on the case.
The second is that Snyman’s rendition of the case authority is in one respect not a true reflection of what the court held. The third is that, in another respect, Snyman’s rendition is true, which requires in turn some analysis of the judgement in the Tanteli case.
To begin, Snyman’s rendition is not correct in that Nicholas J in Tanteli did not say that only in exceptional circumstances can an insult against a group with which one associates provide a basis for a conviction of crimen injuria. He found that, on the facts in that case, the dignity of the victim was, in fact, not injured. He said as follows: “There may, of course, be cases in which an insult to a person’s language, or race, or religious persuasion or national group may, in the circumstances, constitute also an impairment of his dignitas, but this is not such a case.” (p. 775). There is not mention of a requirement of special circumstances.
Snyman’s rendition is correct however insofar as he reflects that the judgement did seem to distinguish between an attack on a person as opposed to an attack on an attribute of a group, with which s/he associates him/herself. It is worth considering if this is a valid distinction, or, at least, one that could possibly prevent a conviction of crimen injuria in scenarios where a group, as a whole, is insulted, where the victim is part of that group.
Already a difficulty becomes apparent in trying to distinguish between an insult against:
1. an attribute of a group with which the victim associates; and
2. a group to which one belongs.
The vague distinction between these two seems to turn on the distinction between associating with an attribute of a group as opposed to being part of a group.
The question being begged here is what it means to be part of a group. It is at least possible to regard belonging to a group as associating with the attributes of that group. Arguably, under this description, to “belong to a group” may require that it’s members associate with more than one attribute of a group – but this does not seem to be necessarily true. A group may, conceivably, be defined by a single attribute which it’s members have in common. That being so, the distinction drawn in Tanteli is unsound.
Apparently the crux of the judgement is not in its attempt to distinguish between individual and group insults, but rather between insults that can be considered to strike at a superficial level as opposed to an insult which strikes at one’s core. As dear as our languages may be to us, it must in a different league to suggest that my language is inferior, as opposed to that I am inferior.
This is revealed or reinforced if one imagines what the outcome would have been if, instead of an insult to the language of the complainant to the effect that his language was inferior, the insult was to the effect that he was inferior. There can be little question that a conviction for crimen injuria would have, and probably should have, followed.
The example above also illustrates the point made above – that there can be no valid distinction based on an insult to a group attribute versus the individual. It would scarcely have helped the accused to have argued that she had only said that say, Afrikaners are inferior, as opposed to that Afrikaans is inferior. The proposed distinction between an insult directed at a group as opposed to the individual breaks down because it is clear that the true distinction is between an insult that may be hurtful, but superficial, compared with one that goes to the core of the person.
In conclusion, the only authority for the proposition that an insult must be directed at a specified person as opposed to a group appears to come from the case of Tanteli. This case is limited in its binding effect – to single Judge courts in Gauteng. It is apparently identified by the leading text on common law crimes in South Africa as an anomaly. Finally, the distinction described in the case between an insult to group to which the complainant associates him/herself as opposed to one directed at the individual appears to break down on analysis. The true distinction appears to be whether insult is superficial as opposed to one that goes to the core of a person’s sense of self worth. The Tanteli case, and the suggestion that an insult must be directed at a specified person, cannot possibly stand in the way of a conviction for crimen injuria in cases where an insult was directed against a group, where the insult offends the very core of the members of the group. In such a case, far from providing a defence that no individual was insulted, the insult is aggravated in that it offends an entire group of individuals.
What’s at stake in the Supreme Court of Appeal judgement in the Pistorius appeal.
Posted: 2nd December 2015 by James Grant in UncategorizedComments Off on What’s at stake in the Supreme Court of Appeal judgement in the Pistorius appeal.
Tomorrow’s Supreme Court of Appeal judgement in the Pistorius appeal is crucially important for South African law of evidence and criminal law.
It will decide whether the State can appeal on a question of law even if the trial court convicted the accused on a competent verdict (such as culpable homicide when the main charge was/is murder). The decision in the 1982 case of S v Seekoei (AD) precludes such an appeal and before the SCA addresses any issue of any substance, it will have to decide whether Seekoei was wrong. Only if it decides that Seekoei was indeed wrong, can it engage with any of the substantive questions before it.
Assuming it decides Seekoei was wrong, we should expect clarification on the following issues:
It will decide whether the State can appeal on a question of law even if the trial court convicted the accused on a competent verdict (such as culpable homicide when the main charge was/is murder). The decision in the 1982 case of S v Seekoei (AD) precludes such an appeal and before the SCA addresses any issue of any substance, it will have to decide whether Seekoei was wrong. Only if it decides that Seekoei was indeed wrong, can it engage with any of the substantive questions before it.
Assuming it decides Seekoei was wrong, we should expect clarification on the following issues:
- How circumstantial evidence must be dealt with – whether a piece of circumstantial evidence can ever be ignored and, if so, when.
- The distinction between questions of fact as opposed to questions of law. This distinction is not easy particularly when it relates to rules that govern what a court may do – that is, in respect of rules evidence and procedure. It may be helpful (following decisions such as Basson CC) to regard questions of fact as an attempt to identify a state of reality – for instance, whether someone did, or thought something. Questions of law pertain to the standard of conduct that one must observe – what it is that a person must not do or must do. This seems to apply equally to procedural issues, such as what a court must and must not permit in proceedings before it.
- It can also be expected that the court will define and explain the difference between a defence of involuntariness as opposed to one of putative (mistaken) private/self defence. If the court follows the decision in De Oliviera, it is likely to distinguish the two on the basis of whether, for putative private defence, the accused was thinking, but mistaken in his thinking; whereas, for involuntariness, the accused was not thinking at all, or, at least, his thoughts did not direct his conduct.
- It will also clarify the concept of dolus eventualis, in particular, as applied to scenarios of error in objecto and scenarios of putative private/self defence. In other words, the SCA will clarify the requirements for an accused to escape a conviction of murder (or any crime requiring intention), in a scenario in which s/he was mistaken both as to the identity of the actual victim and as to whether s/he was actually entitled to kill that person.
- We will hear whether the court confirms that, a defence of putative private defence must fail, when dolus eventualis is sufficient for a finding of intention (as it is for murder), if the accused had foresight of the possibility, at the critical time, that any of the requirements of private/self defence may not be have been satisfied. The significance is that the true defence (that is, not the “putative” mistaken defence), requires, for the defence to succeed, that:
- The accused was under an unlawful attack;
- That the attack had commenced or was imminent;
- That the attack was directed at an interest of the accused which he was entitled to defend;
- That force was necessary to repel the attack;
- That no more force than was necessary to avert the attack was used, and that in any event, such force was reasonable given the circumstances; and
- The force used was directed at the attacker.
A defence of putative private defence is that, while there was, in reality, no valid claim of private defence, the accused was mistaken so that s/he believed that all requirements were satisfied.
We should expect the SCA to confirm that the defence of putative private defence must fail if there is dolus eventualis (forsight of the possibility and reckless persistence) relating to any of these requirements. In other words, that the defence must fail if the accused foresaw the possibility (and persisted nevertheless), that any of the requirements may not have been met. Thus, the defence must fail if the accused foresaw the possibility of all or of any of the following:
- That s/he was not under attack;
- That no attack had commenced or was imminent;
- That there was no attack on a legally protected interest that s/he was entitled to defend;
- That no force was necessary;
- That the force used was excessive in the circumstances; or
- The force used was not directed at the attacker.
If the court confirms this, the claim of putative private defence must fail.
There is alot at stake in the Pistorius appeal decision. Anyone interested in criminal law and procedure and the law of evidence will do well to pay close attention to this judgement.
There is alot at stake in the Pistorius appeal decision. Anyone interested in criminal law and procedure and the law of evidence will do well to pay close attention to this judgement.
Marikana: the missing links
Posted: 4th July 2015 by James Grant in EducationTags: common purpose, Farlam, marikana, murder
Comments Off on Marikana: the missing links
The recommendation of the Farlam commission that some police members can only be charged with attempted murder because it could not be proved which officers had shot which miner is, on the law as it stands, wrong.
It is important to extract the facts that this recommendation appears to concede: that these officers unlawfully fired at the miners with the intention to unlawfully kill them. This places in issue only the link between the conduct of each officer and the death of any miner.
In circumstances such as these, our law resorts to the doctrine of common purpose. It is a controversial doctrine and was certainly abused under apartheid. For what it’s worth, I am opposed to its use and believe that there are adequate alternatives in our law (see James Grant Common Purpose: Thebus, Marikana and Unnecessary Evil 2014 1 SAJHR 1). Nevertheless, common purpose is relied upon in our criminal courts on a daily basis and it has been sanctioned by the Constitutional Court (in the case of Thebus v S 2003 (6) SA 505 (CC)). To my knowledge, the doctrine has never been invoked against the police, but there is nothing in principle why it cannot be used.
The doctrine is designed for exactly the scenario that Farlam says prevents a murder conviction – when one cannot be certain, which one, of a group of attackers, actually killed a victim.
The doctrine holds that each person acting together with others in an unlawful attack, is to be regarded as having done whatever everyone did. So, if A, B and C, agree to attack and kill Y, and that A will stand as lookout, while B will strike Y with a stick, and C will shoot Y, it does not matter that C, in shooting Y, causes his immediate death, all will be liable to a murder conviction for the death of Y. It is irrelevant that B’s conduct (with his stick) only inflicted minor and insignificant wounds, nor even that A is causally irrelevant to the death of Y. Indeed, both A and B are causally irrelevant to the death of Y. Nevertheless, on our law, as it stands, all three may be convicted of murder under the doctrine of common purpose. It is equally irrelevant that it cannot be established which police officer caused the death of which miner.
It is helpful to understand the work that common purpose actually does. It allows our courts to pretend that whatever anyone in a common purpose does, is what everyone does. Thus, on the example above, A does, on our law, what he does, but also whatever B and C does. And so with B and C. B does what he does, but also what A and C does. And so on.
If a police officer can be convicted of attempted murder for his/her part of the attack on the miners, they are almost invariably liable to a conviction of murder – on an application of common purpose. Every police officer who triggers the operation of common purpose, did whatever every other police officer did in that common purpose. Thus, an officer who fired but perhaps missed, also did what his fellow officers in the common purpose did – some of whom fired, struck, and killed the miners – but it doesn’t matter who.
It is true that common purpose has its own requirements and that there are two forms of it. In this case, recognition of these different forms and the requirements of each reveal that it is not only those officers present on the scene who may be convicted of murder, but that liability for murder may stretch up, to anyone who was a party to the plan to resort to the ‘tactical option’, and who foresaw that anyone may be unlawfully killed in the execution of that plan.
The two forms of common purpose are known as prior agreement and active association. Common purpose by prior agreement for murder requires that the parties must, at some prior meeting, foresee the possibility that people may be unlawfully killed upon the execution of their plan (S v Madlala 1969 (2) SA 637 (A); S v Nzo 1990 (3) SA 1 (A)). It is certainly possible that at all and any meetings that discussed the ‘tactical’ option, the unlawful death of miners was foreseen by some. Whoever in those meetings had this foresight – on this form of common purpose – are regarded as having done what they foresaw may happen – even if they were nowhere near the scene at the time of the killing. This has serious consequences, because it allows liability for murder to creep up the chain of command, restrained only by what was foreseen as possible.
The second form of common purpose, active association, is resorted to when the first, prior agreement, doesn’t apply. It is possible that many of the officers who fired their weapons on the day, were at a previous meeting at which they foresaw the possibility of unlawful killing, and thus already satisfied the requirements for common purpose to operate. However, if not, they may have formed a common purpose (by which they can be held liable for an unlawful killing by another officer), by active association, if (Mgedezi 1989 (1) SA 687 (A); Thebus above): 1) the officer was present on the scene; 2) s/he were aware of the attack; 3) s/he intended to be part of the attack; and 4) s/he did something to manifest his/her sharing of the common purpose.
Before we consider how this may apply to the scenario at the scene we must remember what Farlam concedes: that some officers unlawfully fired at the miners and intended to unlawfully kill them. Assuming this, the requirements of common purpose by active association may well be satisfied, as follows: 1) The officers who fired at the miners were present on the scene; 2) They must have known of the unlawful attack on the miners; 3) they must have intended to be part of the unlawful attack on the miners; 4) they did manifest their sharing by virtue of firing their weapons. Thus, even if they are not liable by prior agreement, they may well be liable to a conviction of murder by operation of common purpose by active association.
This is not a suggestion that all officers on the scene are guilty of murder, nor even that those who discharged their weapons are necessarily guilty of murder. It is the argument that if, as the Farlam recommendation appears to concede, some officers unlawfully fired at the miners with the intention to unlawfully kill them, the absence of a link between the conduct of each officer and the death of any miner can be cured by an application of common purpose. It means that if any officer could be convicted of attempted murder, s/he could be convicted of murder. Of course, the opposite is true, but is worth noting: if an officer cannot be convicted of, at least, attempted murder, there will be no basis on which to convict him/her of murder, by an application of common purpose.
Thus, by an application of the doctrine of common purpose, any officer who could be convicted of attempted murder, may be liable to a conviction of murder. Furthermore, liability based on common purpose for any murder may easily creep up the chain of command to anyone in any planning meeting who foresaw that their plan may result in unlawful killings.
– James Grant
Comments Off on Is Euthanasia now legal in South Africa?
Euthanasia or assisted suicide is arguably, now, both legal and illegal in South Africa. Here’s an attempt to explain. Three preliminary points are required.
Firstly, it’s important to understand that what is at issue is whether killing in euthanasia is unlawful (just like for self/private defence). It is a question of unlawfulness because the issue is whether the consent given to be killed is valid and recognised in our law.
Secondly, only decisions of our courts that are consistent with the Constitution actually reflect what the law is. Any decision inconsistent with the Constitution is invalid and not law. The importance of the Constitutional Court is that it has the last say on what it is that the Constitution permits or requires. This has implication for what the law is, even before the Constitutional Court decides what it is. The law is whatever the Constitution permits or requires ever since the coming into effect of the Constitution. This is crucial and bears repeating. Since the coming into effect of the Constitution, our law has been whatever the Constitution permits or requires, no matter what any legislation or any Court (other than the Constitutional Court) says it is.
Thirdly, the question raised in cases of euthanasia or assisted suicide is judged by the “legal convictions of the community”, now, as informed by the values in the Constitution (Carmichele [2001] ZACC 22).
Currently our law is in a state of conflict. There are several old Appellate Division (AD), now known as the Supreme Court of Appeal (SCA), decisions that euthanasia is unlawful (Robinson 1968; Grotjohn 1970).
There is also the case – progressive for its time – of Clarke v Hurst (1992 D) and now, that of Stransham-Ford in the Gauteng North High Court (of 29 April 2015), holding that euthanasia is lawful. Both are Provincial Division decisions.
To complete the picture, it must be mentioned that the Law Commission has recommended (in 1999) that passive euthanasia/assisted suicide be legalised – in terms of which it will be lawful to withhold care or medication. However, the Law Commission took no position on the issue of active euthanasia/assisted suicide – where one actively does something, such as administer a lethal dose of a drug, to hasten death. The status of this commission report is that it has gone nowhere and certainly doesn’t have the status of law. It does however give us a glimpse that the law commission is leaning in favour of the recognition of euthanasia/assisted suicide.
Returning to the court decisions we have the Provincial Division decisions which are in conflict with the AD/SCA decisions. Although AD/SCA decisions ordinarily override Provincial decisions, as indicated above, only decisions that are consistent with the Constitution actually reflect the law.
This leads to the obvious question here: which decisions reflect the Constitution? For this reason we need, at the very least, an appeal to the SCA to resolve the conflict between its own old decisions and the Provincial division decisions, but ultimately we need the Constitutional Court to tell us what the Constitution says. An appeal against the decision in Stransham-Ford’s case is therefore to be welcomed. It will drive the issue towards the Constitutional Court.
Until then, and despite the recent decision in the case of Stransham-Ford, no one can claim to know whether euthanasia or assisted suicide is lawful or not. It leaves those who are terminally ill, who are suffering and who want to die, their families and the doctors who want to help, in a state of uncertainty that can only cause more suffering.
In the meantime the inevitable question persists – what is the position in our law? I can’t answer that. This is for the Constitutional Court to say. I can only guess that it will give prominence to an individual’s right to dignity and to die with dignity.
What I can say in the meantime is what this state of uncertainty does for criminal liability. It is worth considering the possibilities given the importance of this question. There are, of course, two possible outcomes: that euthanasia or assisted suicide is either: 1) lawful; or 2) unlawful.
If the Constitutional Court finds that euthanasia/assisted suicide is lawful, it will mean that it was always lawful, since the inception of the Constitution. In this scenario, there can be no liability – no murder or culpable homicide conviction, even if the conduct is/was committed prior to the Constitutional Court decision saying so. There is an interesting scenario, still within the parameters of it being lawful, in which a person proceeds on the mistaken though firmly held belief that it is unlawful, although it is not. This is what is known as an attempt at the legally impossible, and also attracts no liability.
The second alternative, in which the Constitutional Court declares that euthanasia/assisted suicide is unlawful, will mean that it remained unlawful despite the inception of the Constitution.
I expect some may regard this as a silly proposition given that “ignorance of the law is no excuse”. However, in South Africa, since 1977 this is not our law (S v De Blom AD). A mistake of law is indeed a defence. It would undermine the requirement of intention for murder, and, probably, also the requirement of negligence for culpable homicide. To be clear, the effect of a mistake is to undermine the fault requirement of murder or culpable homicide.
If someone proceeded to kill another in circumstances that one can describe as euthanasia/assisted suicide, but knew/believed that it was unlawful, s/he could be convicted of murder.
However, if someone were to believe – mistakenly on this scenario – that euthanasia/assisted suicide was/is lawful, and was to proceed on this basis, s/he cannot be convicted of murder. This follows from simple and unquestioned principles of mistake in our law. The more difficult question arises though whether this person could be convicted of culpable homicide. This is the question whether making such a mistake is reasonable – could the reasonable person make this mistake? Remember, unlike intention, which is a subjective enquiry (what was the accused actually thinking), negligence is an objective enquiry. Negligence is concerned, not with what the accused did think, but with what s/he should have thought and done. The bottom line is that an accused is regarded as knowing only as much as would be reasonable for him/her to know.
In cases where the issue has been an error of law our Courts have distinguished between complete lay people and those who engage in a particular sphere of activity. Those who engage in a sphere of activity are expected to know the law pertaining to that sphere of activity (De Blom 1977 AD; Du Toit 1981 C). Thus, a builder is expected to know the law and regulations relating to building, a motorist is expected to know the law and regulations relating to his or her mode of transport). This follows from the notion that the reasonable person would know the law pertaining to the sphere of activity in which s/he is engaged. It would probably be considered reasonable for a lay person to think that, given the right to dignity in the Constitution, or following the decision in Stransham-Ford, euthanasia/assisted suicide is now legal in South Africa.
The standard required of Doctors is going to be higher. They will be expected to know the law pertaining to their “sphere of activity”. In the circumstances what can the reasonable Doctor be expected to know? The law on the issue is unclear and we are waiting for the SCA and ultimately the Constitutional Court to interpret the Constitution and declare the law (and what it has been since the inception of the Constitution). We may guess that the Constitutional Court will probably recognise the right to die with dignity, but we have no certainty until they decide. What should a Doctor do? Ultimately the question is going to be this: would a reasonable Doctor foresee the significant possibility that the Constitutional Court may find that euthanasia/assisted suicide is unlawful? Is there a significant possibility that the Constitutional Court may find that it is unlawful? Regrettably, as much as I think the Constitutional Court should and will find that euthanasia/assisted suicide is lawful, there remains a chance that it will not – that it may find that it is unlawful. I say regrettably because I have to acknowledge a degree of uncertainty here that is unacceptable. If this is so, that there is a possibility that the Constitutional Court would find that euthanasia /assisted suicide is unlawful, it will not be a stretch for a Court to find that a reasonable doctor would have foreseen this prospect and would not have assisted. Regrettably again, given the uncertainty, I expect this is a basis upon which Doctors may pause in anticipation of the desperately needed clarity on this issue. However, much as I must acknowledge the possibility that the Constitutional Court may find euthanasia/assisted suicide to be unlawful, I doubt it could amount to a significant risk. The only case (that of Stransham-Ford) that has considered this question in light of the Constitution has concluded that the Constitution permits euthanasia/assisted suicide as lawful. Indeed, even pre-constitutionally, but as we approached our new Constitutional dispensation in 1992, the court in Clarke v Hurst found that the “legal convictions of the community”, the all-important test for unlawfulness, require that euthanasia/assisted suicide is lawful. Given these two judgements, that the AD/SCA decisions are old (1968 & 1970) and certainly pre-constitutional, and that the only other indication we have is from the law commission apparently in favour of euthanasia, it would seem entirely reasonable for a Doctor to believe that when this does finally reach the Constitutional Court, that Court will find that it is lawful. What would a reasonable Doctor make of the uncertainty? I expect a reasonable Doctor would acknowledge the uncertainty, would decry the uncertainty, but would, in my view, regard the risk that the Constitutional Court could find that euthanasia is unlawful as too remote and ultimately insignificant. Unfortunately, this is only, and can only be, a best guess.
In summary then, despite the conflicting court decisions in our law, whether euthanasia/assited suicide is unlawful or not is to be determined by reference to the Constitution. If anyone (lay person or Doctor) were to assist another (who is terminally ill and suffering) to die, no liability can attach to that conduct were the Constitutional Court to declare that such conduct is lawful, and always was (since the inception of the Constitution). If the Constitutional Court were to find however that such conduct remained unlawful despite the inception of the constitution, the fault requirement of the crimes of murder and culpable homicide may offer a defence to both lay persons and Doctors. As indicated, Doctors bear a higher burden than lay people in respect of the law and regulations applicable to the practice of medicine. But ultimately it must be recognised that right now, no one can claim to know what the law is and all we have to go on are the indications in the law commission proposal and the two provincial division decisions in favour of euthanasia being lawful.
Ultimately, and assuming whoever assists another to commit suicide genuinely believes that it is the right thing to do and that this belief will be vindicated by the Constitutional Court, s/he cannot incur liability for murder, no matter what the Constitutional Court decides. Assuming it is reasonable to hold this view, as I suspect it is, no one can be convicted of culpable homicide for doing so, again, no matter what the Constitutional Court decides.
These conclusions are by no means an attempt to reduce the importance of a decision on this from the Constitutional Court. It recognises that that decision is desperately needed and ultimately all important. In the meantime though, for those who are suffering, with no prospect of recovery, for their families and loved ones, and for the Doctors who want to help, I hope this answers some questions.
– By James Grant (@JamesGrantZA)
___________________________
* In honour of Robin Stransham-Ford and my mother. I am grateful to Professor Marius Pieterse of Wits University for his guidance on the constitutional law discussed here. All errors remain, naturally, all mine.
** This discussion is an attempt to answer some abstract questions that arise given the apparent state of legal conflict. It’s purpose is to provide a framework within which questions relating to the specific circumstances of any particular person may be considered. It is not encouragement or a licence to kill anyone. It cannot be regarded as legal advice which must be sought in every individual scenario in order for the specific circumstances to be considered and advised upon.
Translated from the Beeld (29 Oct 2014), available at: Seekoei.Beeld
Story by Marida Fitzpatrick, translated (in a flash) by Darron West.
Unsuccessful Attempts to Justify Judge Masipa’s Errors (Revised & Expanded)
Posted: 28th September 2014 by James Grant in EducationTags: dolus eventualis, error in objecto, Masipa, Pistorius, Reeva Steenkamp
*** This is a revised and substantially expanded version of the post “Unsuccessful attempts to Justify Judge Masipa’s Errors”. It is organised around themes rather than individual commentators. ***
Introduction
There is something deeply disturbing about many of the attempts that have been made to justify Judge Masipa’s judgment in the Pistorius case. They seem to take the line that her conclusion of culpable homicide was conceivable on the law as it stands, and therefore, although her reasons were questionable, her conclusion was correct. It’s the argument that the end justifies the means. This type of justification is as problematic in law as it is in most other areas of life.
In law it is a licence to introduce uncertainty in our law, or worse, distort or destroy the proper functioning of the principles. Perhaps even worse than that, it seems to reconcile with the notion that the principles don’t matter, as long as the right conclusion was reached. This is the worst possible implication because it reconciles with a lawless society. We must not accept this. It is not even the thin edge of the wedge – it is the wedge, the whole of the wedge.
Another common theme can be observed – related to the point made above. It’s the notion that there was nothing wrong with Masipa’s reasons because they are in line with a defence raised even if she did not actually apply the defence or principles underlying the defence. This is all very well, except that if the Judge did not actually rely on that defence or the principles underlying the defence, we cannot pretend that she did. This is law by wishful thinking. I’m not sure it’s as bad as lawlessness. But if lawlessness was bad, this is madness.
At this point it doesn’t serve any purpose to attempt to respond to the arguments raised in justification of Masipa’s judgment on an individual basis – that is, organised by individual attempt. It seems more sensible to extract the common themes from comments made (to date) and respond to those.
It is necessary to explain what dolus eventualis, dolus indeterminatus, error and objecto and putative private defence are, before I move on to explain what they are not. All of this is easier to understand when illustrated by the crime of murder – which is the intentional unlawful killing of another human being.
To confirm – we only have one single crime of murder in our law. Premeditation relates to bail or sentence. Also, no matter what form of intention you have, if you have any form, and if you unlawfully kill another human being, you are guilty of murder.
For authority, other than case law, I will refer to and quote from the textbooks of, arguably, the two leading authors on South African criminal law: Burchell (Principles of Criminal Law, 2013, 4th ed) and Snyman (Criminal Law, 2008, 5th ed). Both have also commented on the judgment in the Pistorius case, which I will discuss below.
Dolus Eventualis
Dolus eventualis is the widest form of intention known in our law. It exists (on the law as it stands: Ngubane 1985 AD; Humphreys 2013 SCA) where the accused, at the time of the killing: 1) foresaw the possibility of killing a human being; 2) accepted this risk; and 3) proceeded nevertheless.
Quite correctly it has been observed that, originally, Molemo Maarohanye (known as Jub Jub) was convicted of murder because he was found to have foreseen the risk of killing his victims, and to have accepted/reconciled to that risk. This conviction has now, on appeal, been reduced to one of culpable homicide and a sentence of 8 years imprisonment imposed. Humphreys (2013 SCA) was convicted only of culpable homicide. The facts of Humphreys are, briefly, that Humphreys drove a taxi and was transporting children. He approached a railway crossing where the boom had come down to stop traffic – in anticipation of a train that was about to pass. Humphreys switched to the right hand lane, overtook the waiting cars, and the boom, and begun to cross the railway line – directly in front of the oncoming train. The train struck the taxi killing 11 of the children being transported. Humphreys was charged with the murder of the 11 killed, but convicted of culpable homicide because the court found that, although he foresaw the risk that the children in his taxi could be killed, he did not accept the risk. This is an exceedingly controversial decision. The court’s reasoning seemed to be that he could not have accepted the risk, because, since he was driving the taxi, he too would be killed, and there was no evidence that he was suicidal. The apparently strange reasoning arose out of an application of the law of dolus eventualis.
The definition of dolus eventualis has been controversial for years – since the decision of Jansen JA in S v Ngubane (1985 AD). The definition of dolus eventualis adopted in Humphreys was set out in Ngubane. The definition was subject to devastating academic criticism. Nevertheless, this criticism was not even mentioned in Humphreys, when the court uncritically adopted the Ngubane definition of dolus eventualis.
However woeful our law is in respect of the requirements of dolus eventualis, Masipa’s judgement did not turn on a finding – that was crucial in the Humphrey’s case – that, although the accused did foresee the possibility of killing whoever was behind the door, he did not accept that risk.[1] Again, that would have been a valid basis (on our law as it stands) to acquit the accused of murder. However, from the wording of her judgement, this was not the reasons she gave for acquitting the accused of murder.
It is also notable that the defence never argued (as some commentators are now suggesting) that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This would have been a valid defence against murder, but it was not a defence claimed, and certainly not one – from the wording of her judgement – relied on by Masipa as a basis on which to acquit the accused of murder. I don’t see how it could possibly make Masipa’s judgement right to refer to a basis on which she could have relied, but did not.
Identity: Dolus Indeterminatus and Error in Objecto
Our law distinguishes one’s identity in the sense of one’s body as opposed to someone else’s body (which I will refer to as object/body identity) from one’s identity in the sense of your name and other characteristics, such as your personality (which I will refer to as nominal/name identity). Nominal/name identity is irrelevant in our law – just as the colour of a victim’s clothing is irrelevant on a charge of murder. You cannot raise the defence that you thought the victim was wearing a yellow shirt whereas it turns out to be blue. In the same way, you cannot raise the defence that your victim’s name happens to be Peter, and not John. If you have intention to unlawfully kill a human body, and you succeed in unlawfully killing that human body, you have committed murder in SA law.
This distinction and the irrelevance of nominal/name identity is borne out by our law in recognising that intention may be general (dolus indeterminatus), and in the attitude our law has taken to scenarios of error as to object (error in objecto).
Dolus Indeterminatus
Dolus indeterminatus is at play in scenarios where the accused throws a bomb into a crowded room. The accused may have no idea who is in the room (at the very least in the sense of nominal/name identity),[2] but intends to kill whoever is in the room. The accused cannot raise the defence that s/he did not intend to kill because he had no specific (nominal/named) victim in mind. (Burchell (4th ed, 2013) explains dolus indeterminatus as follows:
“Where a person throws a bomb into a crowd or derails a train, the fact that he or she has no particular intention to kill a particular individual in the crowd or upon the train does not mean that the person lacks intention. Since he or she knows or foresees that someone will die, this person has what is called ‘general’ intention or dolus indeterminatus. Dolus directus, indirectus or eventualis may be general or indeterminate intention.”[3]
The point here is that it is no defence to say you had no particular victim in mind. On this form of intention, the accused need not have known who was in the room at all, but will be held to have intention to kill nevertheless.
This principle extends liability. It excludes and denies a defence of mistake as to identity, at least in the sense of nominal/name identity. There is no basis for any suggestion that it somehow permits for exceptions. The rule is that you will not be able to validly argue, when you killed B, C and D, that you did not know that B, C, and D were in the room. There appears to be no basis on which it may be argued that somehow this rule would or should yield if one had some reason for thinking that, say, D was not in the room.[4] It will not be a defence for an accused to argue that s/he only thought that B and C were in the room, or that B, C and E were in the room. The point is that it doesn’t matter who was in the room. It certainly cannot matter that an accused thought that B, C and E were in the room, because the accused thought that D was not in the room.[5]
It follows necessarily that no matter what reason Pistorius might have had for thinking – if indeed he did – that it was someone else behind the door, and not the deceased, this cannot be a defence and it is no ground upon which to find that he lacked intention to kill.
This is confirmed by our law’s approach to problems that are far more like that of the facts of the Pistorius case. In our law, if one aims a shot at a particular human body (identified by a particular object/body), fire at and kill that particular human body, it is no defence if it transpires that that human body has a different name to what one expected. This is the essence of the law on error in objecto (error as to object).
Error in Objecto
Burchell (4th ed, 2013) distinguishes aberatio ictus (going astray of the blow – missing one’s target) scenarios, from error in objecto scenarios as follows:
“Aberratio ictus must be distinguished from error in objecto, since difficulty arises if the two are confused. Error in objecto occurs where A, intending to kill B, shoots and kills C whom he mistakenly believes to be B. In these circumstances A is clearly guilty of the murder of C. A’s intention is directed at a specific predetermined individual, although he is in error as to the exact identity of that individual. In other words, he intends to kill the individual regardless of whether the name of the individual is B or C. There is thus in the case of error in objecto, so to speak, an undeflected mens rea which falls upon the person it was intended to affect. The error as to identity is thus … irrelevant to the question of mens rea. On the other hand, in the aberratio ictus situation A intends to kill B, but misses him and kills C. A’s intention is ‘directed at one whom he knows and recognises to be [B]. It is through unforeseen and unintended factors that the blow falls upon [C]’. It follows that A has intention in respect of C only if he foresaw the possibility of C’s death or, for culpable homicide, if C’s death was reasonably foreseeable.”[6]
Snyman (5th ed 2008) gives a similar explanation:
“What is the position if X intended to shoot Z but it subsequently transpires that he mistook his victim’s identity and in fact shot Y? Here his mistake did not relate to whether it was a human being he was killing, but to the identity of the human being. Murder is committed any time a person unlawfully and intentionally kills a human being, and not merely if a person kills that particular human being who, according to his conception of the facts, corresponds to the person he wanted to be the victim. For this reason X in this case is guilty of murder.”[7]
There can be no question that the facts of the Pistorius case disclose an error in objecto scenario – assuming that Pistorius did not know it was Steenkamp behind the door. He aimed at whoever (whatever object/body) was behind the door, fired, and struck and killed that object/body. He did not miss – which would have brought into play the rules relating to aberratio ictus.
It is worth noting that neither author (Burchell or Snyman) make any mention of the reason why A thinks that C is B. This is in line with our settled law, that takes no account of the reason why A makes his/her mistake. If (nominal/name) identity is irrelevant, the reason for any error as to identity cannot be relevant. The identity of the actual victim is irrelevant as is, necessarily, any reason for a mistake as to identity.
Both Masipa and Burchell[8] correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the nominal/name identity of the victim is irrelevant.[9]
After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, Masipa asks what she says is required by the test of dolus eventualis (legal intention): Did the accused foresee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed below, the accused’s defence was that he did not intend to unlawfully kill anyone. This focus – the very basis of the defence of putative private defence – is lost. But, putting that aside, secondly, it is wrong because it deviates from, even contradicts, the recognition that the facts disclose an error in objecto scenario and that the identity of the victim is irrelevant. The question then, correcting also for the defence of putative private defence, should have been: did the accused foresee the possibility of unlawfully killing whoever was behind the door.
Again, it does not help to say this cannot be true because he thought the deceased was in the bedroom. This is the argument that Masipa seems to have finally settled on – and it is fatally flawed in logic. She says: the accused could not have foreseen the possibility of killing the deceased, or anyone else for that matter, because he thought the deceased was in the bedroom. The fact that the accused thought that the deceased was in the bedroom says nothing about what he thought about the presence of someone else in the toilet. Indeed, it is his defence that he believed someone else was in the toilet.
Burchell perpetuates this error in logic. Referring to his scenario in which he notes that it is irrelevant that A intends to kill B, but kills C, he argues that there can be no intention to kill C if A had excluded in his mind the possibility that the person he thinks is B, could be C. But this is the definition of an error in objecto scenario – let’s take this slowly: A intends to kill B. He does not intend to kill C, but B. He thinks that B (the human body) is, well, B. In thinking that B is B, he does not think that B is actually C. So thinking that B is B and not C, he has excluded in his mind, the possibility that B is C. This is the definition of an error in objecto scenario and there is no dispute that the identity of the actual victim is irrelevant. That is, it cannot help the accused that he thought that B (the human body) was B – where he did not think that B was C. Therefore, it cannot assist an accused who has excluded from his mind the possibility that B is C.
Importantly, the reason for any error as to identity is also irrelevant. It cannot help an accused who thinks that B is B because B is not C. Our law is clear, in error in objecto scenarios, (nominal/name) identity is irrelevant, and it remains irrelevant no matter what an accused’s reasons are for making a mistake as to the identity of his victim.
Masipa’s error was similar. In her view the accused could not be convicted of murder because the accused did not foresee that he could kill C (or B), because he thought C was in the bedroom. In that case, it leaves him thinking that B was in the toilet. As we know from the rules of error in objecto, it is no defence to say that he thought that B was B, and not C.
Some have argued that the charge of murder was somehow defective and restricted the prosecution to prove that Pistorius knew (or foresaw) that it was specifically Steenkamp behind the door. Phelps has argued that: “ … the problem started off with the way that the indictment was drafted. It focused closely on him shooting at Reeva Steenkamp and not on whoever was behind the door”.[10] Yet the indictment read as follows, and could not conceivably have said anything else:
COUNT 1 – MURDER …IN THAT … the accused did unlawfully and intentionally kill a person, to wit, REEVA STEENKAMP, a 29 year old female.
Given that the crime of murder is the unlawful intentional killing of another human being, it is difficult to understand how this restricted the prosecution to having to prove that the accused knew it was Steenkamp behind the door. They name the human being that he did unlawfully kill. On the settled law of error in objecto – where nominal/name identity is irrelevant and only object/body identity matters – all they had to argue was that Pistorius unlawfully and intentionally killed the body of Reeva Steenkamp. Reading in the technicalities, the indictment reads as follows: the accused unlawfully and intentionally killed the human body of Reeva Steenkamp, a 29 year old female. It is not necessary however to state the charge in this peculiar fashion, because the settled law of error in objecto requires that it be understood that way.
Putative Private Defence
It is true that the accused’s (original) defence was/is putative private defence.
Private defence excludes the unlawfulness of one’s conduct – only when one is objectively actually (in reality) under and unlawful attack that has commenced or is imminent. If so, one is entitled to use necessary and reasonable force against the attacker.
If, in hindsight, one was not actually under attack, one may not rely on private defence to render your conduct lawful – however, our law recognises that if one was mistaken in thinking one was under attack and entitled to use the extent of force one does resort to, one may raise the defence of putative private defence. If the accused makes this mistake, whether he is mistaken about the facts, or (as Burchell[11] correctly adds) the law (De Blom 1977 AD), the accused cannot be convicted of murder. This is because an accused who is mistaken in this way has no intention to act unlawfully. Putting it positively, the accused believes s/he is acting lawfully. The enquiry is entirely subjective – what did the accused actually think or foresee? It is, as indicated, a complete defence to murder.
Pistorius was not actually under attack, and therefore he could not rely on the defence of private defence. He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.
The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.
It does not make her decision right to say, as many commentators have,[12] that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked a different question.
It also does not follow that – as Snyman is reported to argue[13] – a defence of putative private defence somehow excludes a scenario from also being an error in objecto. Putative private defence describes the accused mental state – that s/he was mistaken in believing that whoever X (a human body) happens to be, X is about to attack. An error in objecto is an error as to who X actually is – B or C. These mistakes may obviously be related: an accused may have mistakenly believed s/he was under attack because s/he believed that X was B (who posed a threat), whereas it transpires, X was actually C (who posed no threat). This is indeed what Pistorius is claiming – and it invokes the principles relating to putative private defence and error in objecto.
Conclusion
In conclusion, we have seen several attempts to justify Masipa’s judgment, all of which seem to fail. It does not make Masipa’s judgment right to pretend that her reasons were reasons that would make her judgement right: that she decided that the accused had not accepted the risk of killing the deceased, that she recognised putative private defence, or that she found that the accused only intended to injure the intended target. These were not her reasons and, however valid they may be, it doesn’t help to pretend that they were her reasons. It also doesn’t help to attempt to justify the distortion of our law on dolus indeterminatus and dolus eventualis applied to error in objecto and the logical error made by Masipa. The law on dolus indeterminatus and error in objecto is clear. Nominal/name identity is irrelevant – for that very reason it cannot help the accused if he thought that it was B behind the door; nor can it help an accused who argues that he thought that it was not C. The identity of whoever was behind the door remains irrelevant – and the indictment did not need to remind the judge that it is not relevant. Finally, there is no reason to ignore this clear law (that nominal/name identity is irrelevant) just because the scenario triggers the rules relating to both error in objecto and putative private defence. There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic.
***
[1] See B Cubane, “JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill” http://shar.es/1aWktC via @thelawthinker.
[2] Possibly even in the sense of object/body identity – although this may be controversial and is unnecessary for present purposes.
[3] Footnotes omitted; p 348.
[4] As Kelly Phelps is reported to argue (Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014).
[5] This is very similar to the argument made by Burchell discussed below (under the heading “Error in Objecto”) – that someone (C) may be excluded from an error in objecto if A thinks that B is not C.
[6] Footnotes omitted; p 396.
[7] p 193.
[8] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).
[9] Snyman disagrees on the basis that the defence was one of putative private defence. As discussed below (under the heading “Putative Private Defence”), this does not exclude the scenario from being one of error in objecto.
[10] http://citizen.co.za/241517/legal-experts-mixed-reaction-pistorius-judgment.
[11] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).
[12] Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191); N Taitz (“Judge Masipa was right on Dolus and murder” http://bit.ly/1wGgNdm”); Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014); http://m.bdlive.co.za/opinion/?articleId=339191; Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34.
[13] Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34: “Die situasie staan in die reg bekend as error in objecto . But it is not in Oscar’s case happened. Maar dit is nie wat in Oscar se saak gebeur het nie. It was not error in objecto not. Dit was nie error in objecto nie. Jack in the case I would have realized I act unlawfully on. In die Koos-geval sou ek besef het ek tree wederregtelik op. “Pistorius did not realize he was acting unlawfully stops.“Pistorius het nie besef hy tree wederregtelik op nie. He thought he was acting in self-defense. Hy het gedink hy tree op in noodweer. The storms were not objectively present. Die noodweer was nie objektief aanwesig nie. This just in his mind, his subjective representation exists, “says Snyman. Dit het net in sy gedagtes, in sy subjektiewe voorstelling bestaan,” verduidelik Snyman.”