PISTORIUS TRIAL 5 August 2016

States indictment:
i) Premeditated murder
ii) In the alternative, murder with direct intent in the heat of the moment
iii) In the alternative, error as to identity of victim does not provide defence to
murder charge (response to Pistorius’ claim of mistaken identity of victim)

Significance of the Case:

- First case in South African legal history that has revolved around the principle of
error in objecto (all previous cases have mentioned it by way of obiter or in
comparison to other principles)
- Error in objecto had previously never been argued simultaneously to a putative
defence (jurisprudence of putative defences has never had to be reconciled with error
in objecto therefore the relationship between the two unclear)

State’s arguments of error in objecto: in relation to both dolus directus and dolus
eventualis arguments

ERROR IN OBJECTO

HISTORICAL CONTEXT:
Shifts in South African Criminal Law
i. Centrality and subjectivity of the enquiry into dolus
i.e. subjective approach to intention
ii. Recognition of a purely subjective approach to knowledge of unlawfulness as
a component of dolus (1977: De Blom case)

i) Shift towards a subjective approach to assessing dolus

Two systems for assessment of intention

i) Psychological approach – SUBJECTIVE (South Africa)
ii) Normative approach – OBJECTIVE

Propositions that have been accepted as trite in South African criminal law:
(a) Intention is subjectively assessed
(b) Dolus Eventualis is most commonly used form of intention
(c) Centraility of mens rea has been given constitutional recognition
(But this has not always been the approach, actually relatively recent occurrence –
only in existence for approximately 60 years)

Traditionally, criminal law generally not concerned with culpability, far more focused
on ‘consummated deed’ i.e. where an offence had occurred, liability would follow.
Basis for liability was the harm caused and not the concept of blameworthiness.
Unduly harsh approach – little space for concepts of fairness and humanity.
Over centuries, idea of mens rea as an element of liability as opposed to a factor for
mitigating sentencing become more common. Accompanied by a recognition of the
need to expand the scope of mens rea and the concept of intention. If intention
understood in its literal form – unduly narrow. Different devices constructed to
expand the reach of criminal law.

Main devices adopted into South African law to expand scope of dolus:

1. Presumption of Intent
(prior to 1950s, imported from English law)
People assumed to have intended the natural and probably consequences of their
actions. Operated irrespective of fact i.e. even where accused had not actually
subjectively foreseen the consequence, intention presumed

Unfair – attaches blameworthiness in a fictional manner where not actually

subjectively present, undermines concept of individual autonomy and fair labeling
Unprincipled – blurs boundary between subjective and objective enquiries in criminal
law, collapses boundaires between intention and negligence (murder and culpable
homicide)

2. Versari
A person who commits an unlawful act is criminally liable for all the consequences
that follow, whether foreseen, foreseeable or intended = blanket rule

2. Transferred Malice
Employed where actual victim is not the intended victim, mens rea transferred by
fiction to provide for completed crime (eg. aberration ictus – the blow goes astray)

For last 60 years, South African law moved away from fictional and constructive
approach to intention, adopted a more subjective approach to dolus. Development of
dolus eventualis a direct result on focus on shifting away from a fictional and
constructive normative approach to ascribing liability towards a purely subjective
approach underpinned by fair labeling and individual autonomy.

Test for dolus eventualis: strikes balance between fairness of ascribing

blameworthiness only where it exists as a matter of fact but also aensuring that
corerect scope of the law is achieved i.e. that it is not unduly narrow by having only a
direct object and aim test

Impact of shift towards subjective approach on concept of error in objecto:

Snyman:
Error in objecto not a RULE of law, merely a descriptor for a particular set of facts –
therefore no legal consequences attached to it and will never determine the guilt or
lack thereof of an accused (explains why no cases that have been decided on error in
objecto)

Consistent with the judgment of Masipha J in the High Court case of Pistorius –
acknowledges that it is a case of error in objecto but proceeds to consider dolus
eventualis even though there is a mistake in identity i.e. does not relieve the court of
applying the test of dolus eventualis and assessing whether dolus eventualis existed
subjectively
But in direct contrast to the approach employed by the SCA in Pistorius – engaged
with error in objecto as a rule of law that had particular consequences that flowed
from a finding of error in objecto

Phelps: approach of High Court more in keeping with the purely subjective approach
in South African criminal law, error in objecto should only apply where there is in
fact subjective intention.

Even if accord legal binding status to concept of error in objecto, still have to
reconcile with existence of putative defences

De Blom: recognition that knowledge of unlawfulness required for criminal liability

Existence of putative defences flow from this recognition i.e. genuine but mistaken
thought that acting in defence of oneself therefore lacked knowledge of unlawfulness
of conduct

PUTATIVE DEFENCES VS ERROR IN OBJECTO

(See diagram in Phelps article)

Impact of De Blom – added second component to enquiry into dolus i.e. knowledge
of unlawfulness, no longer sufficient to only meet one of the definitions of intention
(first component of enquiry)

Error in objecto – relates to the first component i.e. enquiry into existence of the
definition of one of the forms of intention (existed before knowledge of unlawfulness
introduced as a requirement into law by De Blom)

Putative defences – relate to the second component i.e. knowledge of unlawfulness

Cannot argue that do not meet first component of enquiry i.e. one of the definitions of
intention due to a mistake as to victim (error in objecto)
BUT If have a putative defence, can be acquitted irrespective of whether there is an
error in objecto or not – putative defence will trump in the end

CASES
Co-existence of error in objecto and putative defences where accused acquitted on
basis of putative defence

Glen Boshoff (2012)

FACTS: Accused shot 8 year old daughter through closed bedroom door.
Woken by barking dogs at 3am then saw two shadory figures entering the house with
one armed. He locked himself in his room and armed himself, fired through the door
when the knob was turned.

Error in objecto: mistake as to identity of victim, thought was shooting at intruders in

house and not at his daughter
Putative private defence: genuinely but mistakenly believed acting in self-defence
therefore lacked knowledge of unlawfulness

Outcome: no prosecution, too little evidence to secure conviction

Vleis Visagie (2004)

Facts: Shot 19 year old daughter in driveway, mistook her for a car thief
Woken early morning when he heard her car being driven off
Charged with culpable homicide

Outcome: charges dropped, no trial, community petitioned NPA to drop charges on

humanitarian grounds
NPA: Declined to prosecute, but issued statement that Visagie’s culpability can be
argued successfully in court (culpable homicide not murder due to possible putative
defence)

Siyabonga Mdunge (2011)

Facts: Shot wife thinking she was a burglar
Woken by a strange noise like a window opening, armed himself and towards the
noise in the bathroom. Fired when the door opening and killed his wife.
Charged with murder

Outcome: Plea bargain accepted for culpable homicide

8 years wholly suspended sentence on condition that he is not again convicted of
murder or assault during the five year period of suspension

Error in objecto will not impact acquittal where there is a putative defence, focus on
the effect of the mistake as to the identity of the victim that leads to a mistake in the
lawfulness of the conduct i.e. self-defence