Foresight of the causal sequence as a requirement of dolus eventualis in consequence crimes :

Abstract

Dolus eventualis is an important aspect of South African criminal which has undergone certain modifications. One of these modifications was formulated in 1989 in the case of S v Goosen. Before the decision of Goosen, the principle of law was that as long as the accused foresaw the occurrence of the unlawful consequence, the manner in which it occurred was irrelevant. Dolus eventualis was said to be present if death was foreseen as a possibility but occurred in a way which was not exactly the same as the way which was anticipated by the accused. The accused did not have to foresee the precise or general way in which death would be brought about; it was enough that death was desired or foreseen. The Goosen decision formulated the requirement of ‘foresight of the causal sequence’. This requirement is now essential in order to prove the existence of dolus eventualis in consequence crimes. According to the requirement of foresight of the causal sequence, the intention element is not satisfied if the consequence occurs in a way that differs markedly from the way in which the accused foresaw the causal sequence. This requirement differs from the principle followed by the courts in pre-Goosen decisions where foresight of the causal sequence was not necessary and was sometimes considered as irrelevant. All that was required was that the accused foresee the possibility of death occurring as a result of his or her unlawful conduct. The purpose of this dissertation is to critically analyse the requirement of foresight of the causal sequence by analysing the case of S v Goosen, exploring how commentators received the Goosen rule and investigating how the rule has been applied in practice. Although, the rule has attracted conflicting academic criticism, none postulate that the decision of Goosen made bad law. One of the problems of the Goosen rule is that it is not consistently applied in practice. Although this is undesirable, the rule has not been detrimental to the law and certainly does have a valuable place as it limits liability in common purpose cases, where an unlawful consequence occurs in a manner that the immediate party did not subjectively foresee.