_______________________________________________________________

THE CONCEPT OF DOLUS EVENTUALIS IN SOUTH AFRICAN

LAW AN HISTORICAL PERSPECTIVE
Shannon Hoctor*

Introduction

Dolus eventualis is manifestly the most important form of intention in practice in

South African criminal law.1 It has received by far the most attention of all the
forms of intention2 and is well-established, commonly invoked and much
analysed.3 Since the South African courts embrace the psychological concept
of culpability, in terms of which the question whether an accused has acted
intentionally depends solely on his or her subjective state of mind,4 dolus
eventualis forms a cornerstone of criminal liability.
Despite the centrality of the concept of dolus eventualis, it has been described
as controversial5 and a concept which can with justification be described as
an enigma.6 This is principally due to the inability of our courts to form a clear
picture of what the concept of dolus eventualis means. Paizes points out that
judicial pronouncements on this subject have been characterised by vacillation
and a surprising lack of clarity.7 He notes that this uncertainty is unacceptable
as it is inimical to the principle of legality, which underlies criminal law.8
Furthermore it constitutes a serious obstacle to any coherent and consistent
system of criminal law. As Austin observes, words are our tools, and, as a
minimum, we should use clean tools.9
Whilst this paper cannot possibly answer all the questions associated with
dolus eventualis, it is useful to advert to the development of this notion, in order
to draw some conclusions about its present form and function, and this paper
seeks to achieve this modest goal.

*
1
2
3
4
5
6
7
8
9

Professor of Law, Faculty of Law, University of KwaZulu-Natal Pietermaritzburg (BA LLB LLM
(UCT) DJuris (Leiden)).
Rabie A Bibliography of South African Criminal Law (General Principles) (1987) 68. Paizes
Dolus eventualis reconsidered 1988 SALJ 636, observes that there is no more fundamental
concept in our criminal law than dolus eventualis.
Rabie Criminal law General principles LAWSA Vol 6 (1981) par 88.
Focus Dolus eventualis 1988 SACJ at 414.
Visser & Mar Visser & Vorsters General Principles of Criminal Law through the Cases (1990)
450.
Whiting Thoughts on dolus eventualis 1988 SACJ 440.
Focus (n 3) 414.
Paizes (n 1) 636.
Ibid.
Austin A plea for excuses 1956-1957 (57) Proceedings of the Aristotelean Society 7.

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Before proceeding any further, it is necessary to note for the purposes of this
discussion that South African law recognises three forms of intention:10 dolus
directus or direct intention, which refers to the accused directing his or her will
towards achieving the prohibited act or consequence;11 dolus indirectus or
indirect intention, which refers to the accuseds state of mind in relation to a
prohibited act or consequence which is not his or her main goal, but is
recognised by the accused as a necessary consequence of the attainment of
his or her main goal or object; and dolus eventualis. The definition of dolus
eventualis is contested, at least amongst the writers, but the courts tend to
work with a definition similar to that expressed in one of the leading cases, S v
Malinga,12 in the context of the locus classicus for dolus eventualis, murder:
In considering the issue of intention to kill, the test is whether the
[accused] foresaw the possibility that the act in question ... would have
fatal consequences, and was reckless whether death resulted or not.
Thus, the courts work with two components for dolus eventualis: a cognitive
component, foresight of the possibility of harm, and a conative (or volitional)
component, most often expressed as recklessness whether the harm will
result.

Historical development

Burchell and Hunt succinctly describe the historical development of dolus

eventualis as follows:
Although the seeds are to be seen in the views of the Commentators, it
was largely through Carpzovius that the doctrine of dolus eventualis
found its way into the Roman-Dutch law via German law.13
It is instructive to examine in a little more detail the developmental path of the
notion of dolus eventualis.
In the thirteenth century, St Thomas Aquinas, the scholastic theologian and
metaphysician, analysed the issue of the crime that is not part of the goal of the
actor, but occurs as a consequence or result of the intended act.14 As this
consequence does not form part of the goal of the actor, it may be argued that

10
11
12
13

Whilst intention may relate to bo h consequences and circumstances, the discussion that
follows will proceed in terms of the former.
Snyman Criminal Law (2002) 180.
1963 (1) SA 692 (A) at 694G-H.
Burchell, Milton & Burchell South African Criminal Law and Procedure Vol I: General Principles
(1983) 137 n 110.

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it is not intended and thus the actor cannot be held liable for the crime. Aquinas
speculated on the nature of cause and effect and concluded that an effect is
caused by an act if the effect ordinarily, necessarily or naturally flowed from the
act.15 Consequently, an effect that occurred only seldom or accidentally was
not caused by the act. It was therefore Aquinas conclusion that a person who
intended a cause or act intended also the natural or inevitable effect or
consequence of such a cause or act.16
This influential analysis would certainly have factored into the thinking of the
commentators who were directly responsible for the origin and development of
the notion of indirect will. Botha describes the theoretical concerns of the
commentators:17
Hulle wou die versari-leer met die Romeinsregtelike beginsels omtrent
aanspreeklikheid versoen en het geleer dat n dader ook gestraf kan
word vir gevolge wat hy casu veroorsaak het op dieselfde wyse asof hy
hulle dolo veroorsaak het, indien daar culpa praecedens aan sy kant
was. Di basis van aanspreeklikheid is egter getemper deur die dader
nie verantwoordelik te hou vir al die gevolge wat uit sy optrede
voortspruit nie, maar slegs vir daardie gevolge wat neig om daaruit voort
te spruit (tendit verisimiliter ad eventum secutum). n Buitengewone straf
is opgel as die dader die gevolg kon en behoort te voorsien het.
The sixteenth-century Spanish lawyer Covarruvias adopted the theory of
Aquinas that an actor also intends the foreseen consequences of his act which
naturally and probably flow from his actions.18 In contrast to Aquinas, however,
Covarruvias apparently does not require that the consequence be foreseen,
simply inferring that the natural and probable consequences of any deliberate
act are intended.19 Covarruvias named this condition of the will voluntas
indirecta.20 Through Carpzovius, the doctrine of voluntas indirecta was received
into the German law under the title of dolus indirectus.21

14
15
16
17
18
19
20
21

Focus (n 3) 413.
Bodenstein Phases in the development of criminal mens rea 1919 SALJ at 347-348. (The
article concludes at 1920 SALJ 18.)
Ibid.
Botha Die rol van dolus en opset in die strafreg 1980 SALJ 282.
Opera Omnia 1 2 Initium de Delictis et Conatibus.
Ibid.
See further discussion in Botha (n 17) 282.
Practicae Novae Imperialis Saxonica Rerum Criminalium 1 1 13.

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Carpzovius, who was extremely influential in respect of the Roman-Dutch
writers, ultimately construed a concept of intention which is necessarily implied
from the conduct of the offender, in which the question whether the effect had
actually been intended did not play any part at all.22 Nevertheless Bodenstein is
of the opinion that the eighteenth-century German writer Boehmer was the first
to correctly solve the problem of dolus indirectus, if all superfluous matter in his
argument is ignored.23 He was also far in advance of his times since his
fundamental ideas were identical with those of the present-day Dutch and
German schools.24
Prior to the South African courts giving serious consideration to this issue, the
academic writers made mention of this kind of liability, drawing in particular on
the writings of Continental authors.
As early as 1920, Bodenstein identified three shades of dolus,25 which
correspond with the present trichotomy, mentioned earlier. The shade of dolus
corresponding with dolus eventualis is expressed by Bodenstein as follows:
[T]he effect caused by wilful act or inaction is foreseen as a possible
consequence, the agent, however, neither wishes it nor aims at it.26
Bodenstein then proceeds to analyse the wilstheorie (will theory) and the
voorstellingstheorie (preconception theory),27 before citing a number of
formulations of dolus eventualis from Dutch and German authors, all of which,
in Bodensteins opinion, properly describe the mental state of the person who is
guilty of dolus eventualis.28 Thus it would be dolus eventualis, whenever the
agent had beforehand consented to or approved of the effect;29 or when the
agent is so keen on the effect that he is prepared to take into the bargain, if
need be, the undesired effects, or when the fact that he foresaw the effect as
something certain to ensue would not have caused him to abstain from
action;30 or when the agent comes to the conclusion: Well, if the undesired
effect ensues I am also game with it; or the agent, imagining the actual
ensuing of the effect foreseen as possible, nevertheless proceeds to act at the

22
23
24
25
26
27
28
29
30

Bodenstein (n 15) 21.

Idem 22.
Ibid. Bodenstein discusses Boehmers views at 21-26 of the article. It seems that both
Carpzovius and Boehmer were strongly influenced by the Constitutio Criminalis Carolina
(1530-1532).
Bodenstein (n 18) 26.
Ibid.
Idem 26-31.
Idem 31.
Citing Van Hamel Inleiding tot de Studie van het Nederlandsche Strafrecht (1913) s 34 no 5.
Citing Simons Leerboek van het Nederlandse Strafrecht (1910) no 161.

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risk of its ensuing, as if the agent says to himself: Whether it ensues or not, I
will do it in any case.31
Coertze, writing in 1937,32 associates himself with Bodensteins views. He
appears to be the first South African jurist to adopt the Afrikaans description of
dolus eventualis, opset by moontlikheidsbewussyn, which he described as
existing if the actor
een gevolg (nie die verbode gevolg nie) tot doel gestel het terwyl hy die
moontlikheid voorsien het dat n verdere gevolg (die verbode gevolg)
daaruit voort kan vloei, maar hy geen sekerheid het, dat die verbode
gevolg nie in sal tree nie ... .33
Unfortunately the superior theoretical formulations of Bodenstein and Coertze
were not incorporated into the standard practitioners handbook, Gardiner and
Lansdown.34 Thus it may be seen in the fourth edition of this work, published in
1939, that the term dolus eventualis does not occur in the discussion of mens
rea.35 Mens rea itself is divided into three categories; the category loosely
approximating dolus eventualis being circumscribed as follows:
Mens rea in a less and mediate degree is found in those cases in which
an offender, without specific malice or intention directed to the crime
charged, consciously sets forth upon a wrongful or unlawful design, and
in the execution of it reaches a criminal result greater than, short of, or
otherwise different from that proposed, but which he should reasonably
have contemplated as a possible consequence of his conduct.36
Gardiner and Lansdown do not classify this form of mens rea as intention.

37

Such a formulation may of course be criticised for its acceptance of the versari
notion, although it should be borne in mind that this formulation was no doubt
influenced by the presumption that a person intends the natural and probable
consequences of his acts.38

31
32
33
34
35
36
37
38

This is a view Bodenstein attributes to German jurists.

Coertze Wat beteken culpa in die Suid-Afrikaanse strafreg? 1937 THRHR 85.
Ibid.
Gardiner & Lansdown South African Criminal Law and Procedure, which shall be referred to as
Gardiner and Lansdown (first edition in 1917).
Idem 30ff.
Idem 36.
See their description of intention at 38.
It is significant that this terminological confusion is carried over into Lansdowns Outlines of
South African Criminal Law and Procedure (1960) at 11-14, where the authorities favouring
dolus eventualis are dealt with as equivalent to dolus directus (acting deliberately and with
contemplation of the consequences of his conduct) and as something less than dolus directus
(without specific malice or intention directed to the crime charged, consciously sets forth upon
an unlawful purpose and reaches a criminal result different from that which he originally

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Gie (who cites the German author Mezger) clearly includes dolus eventualis in
the theory of intention39 in the following formulation:
... dus word n gevolg ook as gewil beskou as die dader op die oomblik
van sy handeling die moontlikheid voorsien het dat die verbode gevolg
deur sy handeling veroorsaak kan word.40
However, Gie notes that at the time of writing 1941 examples of dolus
eventualis in the case law are practically non-existent, since the courts do not
require the actual foresight of the consequence occurring in order for intention
to be established.41 It is submitted that the reason for the paucity of judicial
reference to dolus eventualis at this stage was the considerable influence
exercised on the law by the presumption that the accused must have intended
the natural and probable consequences of his act.
Although it is now established that the test for intention is invariably subjective
in nature, thus requiring the court to find, in relation to dolus eventualis, actual
subjective foresight of the possibility of the harm coming about, it was not
always so. The Appellate Division in fact referred to the objective test for
intention with apparent approval on several occasions in the first half of the
twentieth century.42 The objective test neglects the accuseds actual state of
mind in enquiring whether a reasonable person in the position of the accused
would have foreseen the harm arising. The crucial question is thus not whether
the accused actually foresaw the harm (as per the subjective test), but whether
the accused ought to have done so. It appears that the primary reason for the
acceptance of the objective test for intention was the adoption from English law
of the presumption that a person intends the natural and probable
consequences of his or her acts.43
This presumption has been relied on in a number of cases in South Africa.44
The apparent justification for its use, which introduces an objective test for

39
40
41
42
43
44

proposed but yet one which must reasonably have been contemplated as a possible
consequence).
Gie n Kritiek op die Grondslae van die Strafreg in Suid-Afrika 99 (PhD thesis, University of
Pretoria, 1941). Gie, however, limits his consideration to materially defined crimes.
Ibid. It is instruc ive to note that this definition makes no reference whatsoever to the voli ional
component in the form of recklessness or otherwise.
At 126: [V]oorbeelde van die laaste opsetsvariasie die opset by moontlikheidsbewussyn
is geheel en al nie te vind nie, omdat die werklike voorsien van die moontlikheid van die
intrede van die gevolg deur die dader nie as n eis van opsetlikheid gestel word nie ... .
Burchell, Milton & Burchell (n 13) 141. See R v Jolly 1923 AD 176 at 186; R v Jongani 1937 AD
400 at 406; R v Longone 1938 AD 532 at 539, 541-542; R v Duma 1945 AD 410 at 417; R v
Shezi 1948 (2) SA 119 (A) at 128-130; R v Koza 1949 (4) SA 555 at 560.
Burchell, Milton & Burchell (n 13) 141. It appears that in Roman and Roman-Dutch law
intention was regarded as a subjective concept.
See Burchell, Milton & Burchell (n 13) 189 n 543 for a list of the cases in which the presumption
was applied.

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intention, is that it is impossible to explore the recesses of a criminals mind,
and consequently the law says that a person must be presumed to intend the
reasonable consequences of his acts.45 In using the presumption, the courts
have stressed that the basis of the presumption was fact rather than law and it
could therefore be drawn or not depending on the evidence,46 and that it was
rebuttable.47
The principal objection to the so-called presumption of intention is precisely
that it results in an objective test of intention and consequently an overlapping
between intention and negligence.48 Bodensteins warning, published in 1920,
prior to the Appellate Divisions wholesale adoption of this presumption, against
this pernicious maxim of the English law which has had such fatal results in
the past and caused the untimely death of thousands of human beings was
not heeded.49 He pleads for the courts to
once and for all drop the aberrations of past ages and do away with the
[notion] that it is possible to say that a person intentionally caused effects
which he actually did not foresee, though he ought to have foreseen
them.50
It is clear that the use of this notion involved a simple adoption of the objective
approach to intention. As Stuart points out, "the presumption, whether or not it
is regarded as rebuttable, is simply the test of negligence that of reasonable
foresight masquerading in a different form".51
Glanville Williams further illuminates this statement when he says that the
application of the presumption
is tantamount to saying that a consequence is intended provided that
it was probable in fact ie a reasonable man would have foreseen it as
probable ... . Consequently, if it were admitted that a man is to be taken

45

46

47
48
49
50
51

Pain Some reflections on our criminal law 1960 Acta Juridica at 297 n 68, citing Gardiner &
Lansdown (n 34). This statement echoes the well-known aphorism of Chief Justice Brian (YB
17 Edw IV, F 2, Pl 2) that [t]he thought of man shall not be tried, for the devil himself knoweth
not the thought of man.
Stuart Presumed intention in criminal law 1967 SALJ 259 points out that there really is no
such thing as a presumption of fact, quoting Wigmore on Evidence (1940) X, 2491, 288-289,
which describes it as an improper term for the rational potency, or probative value, of he
evidential fact, and suggests that it be discarded as useless and confusing. Ogilvie
Thompson JA apparently approved these remarks in Arthur v Bezuidenhout and Mieny 1962
(2) SA 566 (A) at 574. See also Burchell, Milton & Burchell (n 13) 189 n 544.
R v Kewelram 1922 AD 213 at 217; R v Jolly 1923 AD 176 at 181, 189; R v Taylor 1949 (4) SA
702 (A) at 713; R v Nkatlo 1950 (1) SA 26 (C) at 31; R v Nsele 1955 (2) SA 145 (A) at 151; R v
Nkosi 1960 (4) SA 179 (N) at 180-181.
Burchell, Milton & Burchell (n 13) 189.
Bodenstein (n 15) 34.
Ibid.
Stuart (n 46) 259.

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to intend the natural and probable consequences of his acts, the result
would be to destroy the subjective definition of intention and to efface the
line between intention and negligence. Such a mangling of the concept
of intention cannot be admitted.52
Bearing in mind the blurring of intention and negligence occasioned by the use
of the presumption, it follows that even an accused who completely lacks any
foresight of the consequences of his act may be held responsible. This
endorses the view of Swanepoel53 that the presumption was associated with
the old doctrine of versari in re illicita. The versari doctrine provides that a
person who commits an unlawful act is criminally liable for all the
consequences that follow, irrespective of whether they are foreseen,
foreseeable or intended. It is therefore simply a form of strict liability, ignoring
the mental state of the accused. Morkel points out that upon the application of
the presumption it would frequently merely be necessary for the state to prove
the act, as the necessary intention would follow as an inevitable inference.54
Clearly this disregard of intention smacks of versari-type reasoning. The versari
doctrine was rendered obsolete by the Appellate Division decisions in Van der
Mescht55 and Bernardus.56
It is evident that the application of the presumption, let alone the versari
doctrine, would retard the development of the concept of dolus eventualis. As
Holmes JA cogently remarked in S v De Bruyn,57 the South African courts for
many years drew scant distinction, if any, between dolus directus and dolus
eventualis in murder cases, simply applying the presumption in deciding the
issue of intention to kill. It appears that the significant period of evolution of the
concept of dolus eventualis for the purposes of this enquiry began after 1945,
when South African courts were compelled to address the question of the
nature of liability for the undesired consequences of an intended act, in
response to the prevalence of housebreakings during the Second World War
that involved the unplanned killing of householders who offered resistance to
the housebreakers.58 A concomitant causal factor in the curial consideration of
dolus eventualis was the incipient shift to a subjective approach to the
assessment of mens rea. A landmark decision in this regard was the Appellate

52
53
54
55
56
57
58

Williams Criminal Law: The General Part (1961) 90.

In Die Leer van Versari in Re Illicita in die Strafreg (1944) 57f, cited in S v Mokonto 1971 (2) SA
319 (A) at 325H; S v Sikweza 1974 (4) SA 732 (A) at 736.
Morkel Die bewys van opset 1982 TRW at 70: sou dit dikwels vir die staat bloot nodig
wees om die handeling te bewys die nodige opset sou dan as noodwendige afleiding volg.
1962 (1) SA 521 (A).
1965 (3) SA 287 (A).
1968 (4) SA 498 (A) at 509F-G.
Focus (n 3) 413. See also the remarks of Holmes JA in S v De Bruyn 1968 (4) SA 498 (A) at
509G-H.

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Divisions ruling in R v Ndhlovu59 that the onus of proof in criminal cases rests
on the State in respect of all the elements of liability. Although the demise of
the presumption and the versari doctrine were still some way off, the gradual
yet inexorable shift to a subjective test for intention had begun.
An examination of the case law reveals that the test for dolus eventualis was
variously and sometimes imperfectly formulated60 by the courts in the late
1940s and early 1950s61 before being authoritatively articulated by the
Appellate Division.62 It is notable that in one of the clearest formulations of the
test, in R v Horn, the writings of Bodenstein are extensively cited. Furthermore,
by this time the landscape of the South African criminal law had been
irrevocably altered by the publication of Strafreg (first edition in 1949) by
Professors de Wet and Swanepoel. This publication, in introducing into South
African criminal law for the first time a closely argued theoretical framework for
criminal liability, relied extensively on the writings of contemporary Dutch and
German writers. As we have seen, writers such as Bodenstein, Coertze and
Gie had similarly cited these sources.

Conclusion

There are a number of matters regarding the content of dolus eventualis which
are still disputed.63 Two of the most significant disputes fall to be mentioned.
Should the cognitive component be limited to foresight of a real or reasonable
possibility of harm, or does foresight of a remote possibility suffice for
intention? Can the conative component, which requires recklessness on the
part of the actor, be adequately delineated? If not, ought there to be a conative
component of the test for dolus eventualis?
It is submitted that in answering these questions, the South African courts have
clear guidance from the historical development of dolus eventualis in this
country. First, the notion which the courts apply is indisputably South African in
character, having been shaped by domestic jurisprudence, in the same way as
the Namibian and Zimbabwean courts, for example, have developed their own
answers to the questions posed. Despite a common foundation, each

59
60
61
62

63

1945 AD 369 at 386.

In the words of Holmes JA in S v De Bruyn 1968 (4) SA 498 (A) at 509H.
See De Wet & Swanepoel Strafreg (1960) 126-128.
In the leading case of S v De Bruyn (n 58) 509H-510A supra, Holmes JA opines that it was
only in 1962, in S v Malinga 1963 (1) SA 692 (A) at 694G-H, that the test for dolus eventualis
was finally formulated in the pure form in which it is now applied. See also the earlier cases of
R v Huebsch 1953 (2) SA 561 (A) at 567 and R v Horn 1958 (3) SA 457 (A) for superior
formula ions of the dolus eventualis rule.
For a general discussion of the notion of dolus eventualis, see Snyman (n 11) 181ff; Burchell
Principles of Criminal Law (2005) 466ff.

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jurisdiction has formulated its own response.64 Given the rather exceptional
way in which the notion of dolus eventualis has been accepted into South
African criminal law not founded on the common-law sources, nor statute, but
on contemporary Continental criminalists (or strafregwetenskaplikes) it is
clear that a perusal of modern Dutch and German writers may provide useful
persuasive authority which could help fashion an authoritative solution to the
existing theoretical conundrums.
It is submitted that finding a solution to these issues is not merely of theoretical
significance, but goes to the heart of some of the most fundamental challenges
facing South African criminal law today. The constitutional guarantees relating
to individual autonomy65 and dignity66 have underlined the need only to punish
those who can be held to be blameworthy for their actions by reason of mens
rea. On the other hand, there have been attempts to limit the defence of the
intoxicated67 or provoked68 accused, and to find liability based on unreasonable
conduct, in so doing bringing objective factors into the inquiry into state of
mind. The notion of dolus eventualis provides a very significant counterweight
to defences excluding liability based on mental state, and consequently the
way in which this notion developed, and the nature of its antecedents are
worthy of scrutiny.

64

65
66
67
68

See, eg, the Namibian decision of S v Van Wyk 1992 (1) SACR 147 (Nm), which expresses
strong support for the requirement that there should be foresight of the reasonable possibility of
the harm occurring; and the Zimbabwean decision of S v Ushewokunze 1971 (2) SA 360 (RA),
which favours foresight of the real possibility of harm as the requisite cognitive component.
S 12 of the Constitution of the Republic of South Africa, 1996.
Idem s 10.
See s 1 of the Criminal Law Amendment Act 1 of 1988.
See S v Eadie 2002 (1) SACR 663 (SCA).