Chapter 15: Intention

Introduction

Intention in law has a technical meaning.  It includes more than what may ordinarily be understood by the term.  It extends beyond what a person may have as his/her purpose (dolus directus), and beyond even what is not one’s purpose but which is foreseen as inevitable (dolus indirectus). It extends to what is neither one’s purpose nor foreseen as inevitable, but to what is nevertheless foreseen as a (real) possibility - dolus eventualis.

Subjective inquiry

At least two different perspectives are distinguished in criminal law: the subjective and the objective. The objective perspective refers to the world outside as it exists in reality. The subjective perspective is concerned with a person’s actual thoughts and internal perspective on the world. It is well accepted that people see things differently and that people sometimes make mistakes – where their internal perspective places them at odds with the world outside.[1]

Intention is an inquiry into the subjective state of mind of an accused at the time of the offence. As mentioned, since intention is concerned, ultimately with what an accused foresaw, it is not with the accused ought to or should have foreseen.

It is not concerned with what is foreseeable or reasonably foreseeable. It is also nonsense to speak of an accused having reasonably foreseen - because this conflates the objective test perspective of what is reasonable with the purely subjective concern of the test for intention. An accused either foresaw something or did not – it is irrelevant whether the accused ought to have foreseen and whether this foresight was reasonable or not.

Because intention is concerned with the internal subjective state of mind of an accused, proof of intention is not straightforward. There can be no “direct” evidence of intention except perhaps if an accused person is prepared to admit to having held the required intention. Otherwise intention is inferred from the circumstances and all other available evidence to determine what it is that the accused “must have” been thinking. In this way, the law relies on the “must have” inference in determining intention. A court in finding that an accused had the required intention, must conclude that the accused “must have” been thinking, say P (I intend to unlawfully kill) rather than, say Q (I do not intent to kill) or R (I intend to lawfully kill).

In this way, our courts convert objective considerations, which may include what a reasonable person would have thought, or what the accused ought to have thought. However, there is no automatic connection between these objective considerations and the conclusion as to the subjective state of mind of an accused. It is entirely possible for a court to be persuaded that a reasonable rational person would have realised something, but for that court to nevertheless conclude that the particular accused failed to realise this. This is possible of course because the court may be persuaded that the accused person at the relevant time was not, for instance, paying proper attention or, that the particular accused is, put plainly, stupid.[2]

Intention and motive

Intention and motive are to some extent distinct concepts. Motive – in the sense of what motivates an individual – is distinct from intention in the forms of dolus indirectus and dolus eventualis which are concerned instead with what an individual foresees or expects.

Some authorities on criminal law insist that motive is completely irrelevant to criminal liability – but this is not strictly true. Motive may well coincide with intention in the form of dolus directus because this form of intention concerns what the accused desired which may coincide with what motivated the accused.

Also, motive may render an otherwise unlawful act lawful and thus not punishable at criminal law. An example would be a father who exceeds the speed limit when driving his child to a hospital in order to save his child's life (an instance of the defence of necessity).

Beyond this, however, motive is only relevant to sentencing.

Types of intention

Dolus directus

Dolus directus, as mentioned, is present where an accused desires a consequence or circumstance in that it is his or her aim an object to achieve such consequence or circumstance.

The classic example of a person who acts with dolus directus is the assassin. When an assassin points his rifle at a person and pulls the trigger, it is his or her aim and objective to unlawfully kill that person.

Dolus indirectus

Dolus indirectus, as mentioned is present where, though it is not the am an objective of the accused, the circumstance or consequence is foreseen as substantially inevitable.

The case of R v Kewelram 1922 AD 213 illustrates the point. The accused was a businessman who attempted to defraud his insurance. He set fire to his stock inside a building with a view to claiming fraudulently for its replacement value from his insurance company. He foresaw in the process the inevitable destruction of the building in which the stock was stored.  He therefore had dolus directus in respect of his stock and dolus indirectus in respect of the building. He was convicted of arson in the trial court. The Appellate Division rejected his appeal and found that the inference of wrongful intention to burn the building had been correct.

Dolus eventualis

Dolus eventualis (also known as legal intention) has an official ‘legal’ definition,[3] and one proposed by academics[4] critical of the official legal definition.

Legal definition:

1.   Did the accused foresee (any) risk of the prohibited consequence/circumstance;

2.   Did the accused reconcile him/herself to that risk (also referred to as consenting to the risk or taking the risk into the bargain); and

3.   Proceed. 

The academic definition:

1.   Did the accused foresee the real or substantial risk of the prohibited consequence/circumstance; and

2.   Proceed. 

The differences are profound and have arisen out of objections which academics have levelled at the legal definition over time. 

On the legal definition, the foresight of any degree of risk is sufficient. Academics point out that this would put a person on track to be held to have had intention in the form of dolus eventualis if, in the course of some conduct, s/he had foreseen even a slight risk of the prohibited consequence/circumstance. So, for instance, they point out that this would be the case where someone were to recognize that there is a slight risk every time s/he drives his/her car, of having an accident and of someone being killed. They object that, if this were to happen, a court could find against that person on the first requirement.  The academics suggest that this requirement should only be satisfied if the person concerned foresaw a real or substantial risk of the prohibited consequence/circumstance. 

In their view, the requirements for dolus eventualis should be regarded as satisfied if, in the face of the recognition of this real/substantial risk, a person were to proceed. Noticeably, they omit the requirement stipulated in the legal definition that the accused must have reconciled to or accepted the risk. 

This is significant because it is this requirement which the Court in Ngubane believed did the work which the academics are concerned should be done by qualifying the extent of the foresight of risk required.

Jansen JA held in Ngubane that it does not matter whether a remote or substantial risk is foreseen, but whether the person reconciled or consented to the risk.

“In principle it should not matter in respect of dolus eventualis whether the agent foresees (subjectively) the possibility as strong or faint, as probable or improbable  ...  provided his state of mind in regard to that possibility is 'consenting', 'reconciling' or 'taking into the bargain'. ...”

 This, Jansen JA explained is because, it is unlikely that any person would accept a risk which is slight and the converse, that a person is likely to have accepted a real or substantial risk before proceeding.

The academic response is twofold. Jansen JA has logic backward in that it is precisely when someone foresees that a risk is slight or remote that they do accept it and reconcile to it. According to Whiting “if a person sees the risk as only very slight, he is surely more likely to reconcile himself to it or take it into the bargain than if he sees it as substantial”.[5]

Also, Jansen JA makes another logical error in failing to appreciate that the requirement of reconciliation or acceptance of the risk is redundant. If one foresees a risk of a prohibited consequence or circumstance and persist in the face of it, one must have accepted the risk. Again, Whiting states "[i]t is superfluous, because by acting with foresight of the possibility that a result will ensue, one necessarily reconciles oneself to the possibility that it will ensue and takes this possibility into the bargain."[6] These academics argue that it is logically impossible to have foreseen a risk and to proceed in the face of the risk, and not to have accepted the risk. 

On this point the Courts disagree. Jansen JA in Ngubane indicated that, in the courts view, it was possible to foresee a risk, to consider it and to possibly adjust one's conduct so that one no longer believes that the risk would eventuate, and to proceed without having reconciled with or consented to the risk. On Jansen JA's view then, it is possible to foresee something as true, but not to believe it is true. This would seem to propose a very special kind of split mind. One that can both foresee something and yet deny it. The academics[7] point out that Jansen JA has lost track of his own logic. They explain that the reason that there appears to be a lack of reconciliation with the risk is because, in what he proposes as the reconsideration or readjustment component, the person comes to no longer foresee the risk of the prohibited consequence/circumstance. Jansen JA, they say, had unwittingly returned, in his analysis, to the first question, and concluded that there was no longer any foresight of risk. It is for that reason that when the person proceeds, s/he may be said to proceed without having accepted or reconciled to a risk – because s/he does not foresee one.

The logic of the academic formula appears eminently superior and has the attraction that it is simpler and more elegant. 

Nevertheless, the Ngubane formula has prevailed and what is perhaps somewhat disconcerting is that it has prevailed as if it was not in any way controversial or questionable. The most recent judgement to endorse - specifically - the requirement of reconciliation in the legal formula proposed by Jansen JA in Ngubane is the case of Humphreys.[8]

This case is a tragedy for several reasons. The facts of Humphreys are briefly as follows. The accused was a taxi driver. On the day in question, he was driving a group of children to school. At a point, he approached a railway crossing. The crossing had closed - the traffic lights were red and the booms were down - indicating that a train was coming. Traffic had begun to back up in front of the boom. Instead of joining the que of vehicles waiting for the train to pass and the boom to rise, this taxi driver switched to driving on the wrong side of the road and into the level crossing on the wrong side of the road. His plan was to drive diagonally to the left, over the tracks, and to switch back to the left side of the road so that he could pass out the other side of the level crossing. However, as he crossed over the tracks the taxi was hit by a train. Ten children were killed. The driver survived and was charged with the murder of the ten children. He was convicted and appealed. 

The court held, in a unanimous judgement given by Brand JA (Cachalia JA, Leach JA, Erasmus AJA and Van der Merwe AJA concurring), that the accused had foreseen the risk of being struck by a train and of children being killed. Adopting the definition as it was set out in Ngubane, Brand JA went on to consider whether the accused had reconciled to this risk. The court considered whether the accused was suicidal or indifferent to whether he died. It found that he was not, and therefore, it concluded, that the accused had not reconciled to the risk.

“An inference that the appellant took the death of his passengers into the bargain when he proceeded with his action would unavoidably require the further necessary inference that the appellant also took his own death into the bargain. Put differently, the appellant must have been indifferent as to whether he would live or die. But there is no indication on the evidence that the appellant valued his own life any less than the average person or that it was immaterial to him whether or not he would lose his life. In consequence I do not think it can be said that the appellant had reconciled himself with the possibility of his own death. What must follow from this is that he had not reconciled himself with the occurrence of the collision or the death of his passengers either. In short, he foresaw the possibility of the collision, but he thought it would not happen; he took a risk which he thought would not materialise.”[9]

He was acquitted of murder and the convictions substituted with convictions for culpable homicide.[10]

There are two remarkable aspects to this judgment. First, there is no acknowledgment that there was any question that Ngubane was right.[11] This is despite the fact that not only had numerous articles been written on the topic, but every textbook on criminal law reflected that there was controversy on the issue - and not an insignificant controversy.

Secondly, it is difficult to follow the logic by which in order to have reconciled with the risk that the taxi could be struck by a train and children killed, the taxi driver would have to be suicidal or indifferent to death. This logic assumes that only suicidal people or those otherwise indifferent to whether they live or die take risks accepting they may die. It is respectfully submitted that this does not follow and that if one applies the logic suggested by the academics in proposing their formula of dolus eventualis (above), one would have to conclude that the accused, who the court held did foresee the risk of death of the children, must have accepted the risk because he proceeded. He took that risk and so, he must have accepted it. 

Instead, it would seem, the issue ought to have been whether he foresaw a sufficient degree of risk that, having accepted that risk and proceeded, the law ought to treat his mental state as one of intention. If one considers whether he foresaw the real or substantial risk of being hit by a train when driving through the level crossing at exactly the time that traffic was stopped because of the danger posed by an oncoming train, perhaps the question should have been, not whether he was suicidal, but whether he was severely intellectually deficient. There seems on the facts to be no suggestion of this.  

The case of Pistorius[12] followed in 2015 and the Supreme Court of Appeal once again adopted the conventional legal definition of dolus eventualis espoused in Ngubane.

Sufficient

Dolus eventualis is sufficient for any common law offence, even murder. In S v Sigwahla 1967 4 SA 566 A the court said:

"… the following propositions are well settled in this country:

The expression "intention to kill" does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis, as distinct from dolus directus ..."

Dolus eventualis may however not be sufficient for various statutory offences which may require that dolus directus exists. An example of this may be found in sections of the Internal Security Act 74 of 1982[13] concerning sabotage and subversion. These sections required dolus directus in that one only offends the section when it is an offender's aim and object to achieve the prohibited circumstance or consequence.[14]

Dolus indeterminatus?

Dolus indeterminatus is a category of dolus that indicates that the dolus was general, that is, not directed at any particular individual. Dolus determinatus, on the other hand is specific to a particular person. Both of these are categories into which the three forms of dolus fall – so that there are actually 6 different types of dolus, thus:

Dolus

Directus

Indirectus

Eventualis

Determinatus

Assassin – in respect of an identified victim, for example, a prime minister.

Assassin – in respect of the inevitable death of a second identified victim, who will die because h/she is standing in front of the prime minister.

Duck hunter – where he identifies the potential victim, if he misses the duck, he will strike a particular person.

Indeterminatus

A suicide bomber – his/her aim and objective to kill, but the victims are unidentified persons who may happen to be on a bus.

A suicide bomber – whose aim and objective is to blow up a building, but s/he foresees that it is inevitable that unidentified people who may happen to be in the building will die.

Duck hunter - but here his potential victim is unidentified – he recognizes that his bullet may strike ‘someone’ on the opposite bank.


Conclusion

In conclusion, intention is a subjective enquiry. It is widely conceived in our law and includes where an accused foresees the risk of a prohibited consequence or circumstance, reconciles to that risk, and proceeds.




[1] For a detailed discussion of the operation of the different perspectives accepted in criminal law see the note on Criminal law in 4D on this website.

[2] The conclusion that a particular accused is of sub- normal intelligence and on that basis did not realise or foresee something may be found in the famous cases of R v Mbombela 1933 AD 269 and S v Goosen 1989 (4) SA 1013 (A).

[3] R v Horn 1958 (3) SA 457 (AD); S v Mini 1963 (3) SA 188 (AD); S v De Bruyn 1968 (4) SA 498 (A); S v Ngubane 1985 (3) SA 677 (A); S v Humphreys 2013 (2) SACR 1 (SCA); Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SA 431 (SCA).

[4] In particular, Paizes (1988) SALJ 636; Loubser and Rabie (1988) SACJ 425; Smith (1970) 96 SALJ 923; Whiting (1988) 1 SACJ 440.

[5] Whiting (1988) 1 SACJ 440.

[6] Whiting (1988) 1 SACJ 440.

[7] See in particular, Smith (1970) 96 SALJ 923.

[8] S v Humphreys 2013 (2) SACR 1 (SCA).

[9] Paragraph 18.

[10] Paragraph 20.

[11] Paragraph 15.

[12] Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SA 431 (SCA).

[13] Strangely – because it is unquestionably an apartheid piece of legislation - still in force (at the time of writing (April 2017)).

[14] See Minister of Law and Order v Pavlicevic 1989 (3) SA 679 A; S v Nel 1989 (4) SA 845 (A).