A comparative study pertaining to the laws of Germany and America in respect of the test for dolus eventualis with a specific focus on the crimes of murder and culpable homicide.

Abstract

Dolus eventualis has correctly been described as an ‘enigma’. Not only has it been variously described by the courts, but they have applied the two-stage test, the cognitive and conative component, without providing an in-depth analysis of it means. Both dolus eventualis required for murder and conscious negligence required for culpable homicide contain an element of subjective foresight of the remote possibility of death occurring. As a result, the distinction between murder and culpable has become confused over the years, evident in the courts vacillating between findings of murder and culpable homicide. Regarding the cognitive component, the lack of clarity lies in the degree of foresight which is required, and with regard to the conative component, not only has it been variously described, but it is labelled ‘an unnecessary appendage’. Considering this lack of clarity, there exists a need to examine the test for dolus eventualis in the case of murder and to determine whether it can be distinguished from culpa, in the case of culpable homicide. German law is faced with the same lack of clarity when trying to demarcate bedingter Vorsatz from bewuste Fahrlassigkeit, the equivalent of South African dolus eventualis and conscious negligence respectively. American law is also faced with difficulties when trying to distinguish cases of manslaughter, the South African equivalent of culpable homicide, from ‘extreme indifference’ murder which occurs under substantially the same circumstances as dolus eventualis. Therefore, South African, German and American law and academic opinion is consulted to establish how the respective countries have dealt with the conflation of murder and negligent killings. This has been done by conducting desktop-based (digital and manual) research. From the findings of the research, the current test for dolus eventualis cannot properly be distinguished from cases of culpable homicide and should be reformulated to include foresight of a real, reasonable or substantial possibility of death ensuing. This creates a higher standard of proof which is appropriate for the seriousness of the crime of murder and allows for the contentious conative component to be dispensed with. However, if death was not foreseen as probable, it needs to be asked whether the accused’s conduct offends the legal system to cover those situations in which the accused’s conduct has no social utility and displays an extreme indifference to the value of human life.