In South African law there are no degrees of murder. There is only a distinction between murder, which is the intentional killing of a human, and culpable homicide (manslaughter), which is the negligent killing of a human. Simply, murder requires intention, whereas culpable homicide requires negligence.
Prominent criminal law author CR Snyman argues that South African law would be better employed using a system where the killing of a person is graded, or judged in degrees, such as the position in American law. The reason behind this argument is that killing can happen in a variety of ways and the moral reprehensibility underlying the conduct that leads to the death of another can vary dramatically from case to case. That being said, the judicial system takes these factors into account in the sentencing of an accused, so the argument is probably legal semantics but I do agree with the proposition on the basis that it would create more certainty and consistency.
Be that as it may, and broadly speaking, the fact that a person has committed an act, which may be a crime, is not enough for conviction and criminal liability – the conduct of the person must be committed with a guilty mind. This requirement, otherwise expressed with the Latin term mens rea, or culpability, must be present before criminal liability is found. Essentially, the law seeks to determine whether an accused should be blamed for her conduct. Would it be fair to punish the accused? Could the accused have avoided the wrongdoing?
So, how does one determine if conduct that leads to the death of another amounts to negligent killing or intentional killing?
For intention to be present for a murder charge, the accused must kill another human while knowing and foreseeing that her conduct constitutes murder (dolus directus or direct intention), or, must kill another whilst subjectively appreciating that a reasonable possibility of death exists (dolus eventualis or legal intention based on accused’s conduct and surrounding circumstances).
The legal theory used to determine intention in South African law is subjective in nature. In other words, the accused must be aware that she is committing the crime of murder while performing the act. However, this purely subjective intention, or dolus, can be proved by the State using objective evidence and drawing reasonable inferences from credible and objective evidence.
Conversely, culpable homicide is the negligent killing of a human. Sometimes it is necessary for the law to punish persons for acts they did not intend or did not subjectively foresee. If an accused person acts in a manner that is objectively unreasonable, even though she believed otherwise, and this conduct leads to death of another person, she is negligent and guilty of culpable homicide.
In the matter of S v Ngema, a man thought he was being attacked by a Tikoloshe (a dwarf like evil spirit) and hit out with a cane knife approximately nine times. It turned out to be a two year old toddler and she died as a result of the incident. The accused was charged with murder and the court held that although he did not have the subjective intention to kill a human, the conduct in warding off the perceived attack was unreasonable. He could therefore not be charged with murder, he lacked intention. He was charged with culpable homicide as his conduct was objectively unreasonable and he was negligent.
In the Appellate Division (as it was then, called the Supreme Court of Appeals now) matter of S v De Oliveira a man fired six shots in rapid succession into a confined area (a driveway leading to a house and adjoining cottage) while aware of the presence of people there. This conduct caused death and injury to others. He did not testify at his trial and claimed self or private defence. Private defence, which results in the death of another person, may only be successfully relied upon where an imminent danger to life or property exists – the immanency of danger is tested by looking at the objective facts of the situation. That being said, in this matter, the highest appeal court upheld a murder conviction on the basis that the accused could not have entertained an honest belief that he was entitled to act in private defence in those particular circumstances.
This erroneous or mistaken private defence is known as putative private defence – the only matter in issue here is the culpability of the accused, i.e.: whether he can be found to have legal blameworthiness in the form of intention (dolus eventualis), or whether he acted negligently and can be found to have legal blameworthiness in the form of negligence. In either event, in the De Oliveira matter he was going to be charged with an offence, the question was simply whether the accused acted intentionally or negligently. In this case, the accused’s silence weighed heavily against him and the court found he that he must have foreseen the possibility of death ensuing to the persons outside, but reconciled himself to that event occurring and proceeded in any event. His appeal against convictions of murder and attempted murder were dismissed.
Lastly, if the accused makes a material mistake concerning the act this so-called error in objecto may exclude intention – each case will turn on its own facts. The mistake or error must be material and the subjective intention will be tested normally. For example, if I am out duck hunting, and I think I am shooting a duck, but the duck turns out to be my attorney friend, I have made a mistake as to the object and I will probably not be charged with murder. I may, however, be charged with culpable homicide if my conduct was objectively unreasonable. See former United States vice-president Dick Cheney hunting incident…