Hokus Dolus

04 August 2020 3393

The legal profession is infamous for using long windy sentences and mammoth words to describe principles. This has, for a long time, made the legal profession an alien to anyone who does not have a PHD in deciphering legal jargon. With all the legal drama TV series like Suits and How to get away with murder, legal terms have never before been so popular. These series have made the once locked and loaded profession a more accessible fraternity to other sectors and the public at large. This applies especially to niches like criminal law and defense of accused persons. However, these shows do very little to actually explain the lavish Latin terms they so frequently confetti around. So, I am here to help you understand some of the principles that are so frequently used by Professor Keating in her Hollywood courtroom. (How to get away with murder reference).

There are three elements that determine criminal liability. Unlawful conduct (an action that is defined as a crime), criminal capacity (determined by age and mental capacity) and fault. If one of these elements is lacking, then the accused cannot be held criminally liable.

It is a firmly established principle in our law that you cannot be guilty of a crime without fault. However, the catch comes in with what fault means.  Fault can be in the form of intention (dolus) or negligence (culpa).

In order to satisfy the requirement of intention (Dolus), it must be shown that the accused had the intention to perform such conduct and that he/she was aware that such conduct is or may be a crime. In the South African legal system, three types of dolus are recognized.

  1. Dolus directus: means actual intent. For example, A shoots B to kill him and then B dies. A’s action (shooting B) coincides with her intention (to kill B).
  2. Dolus indirectus: means indirect intention. The accused’s intention was not the commission of a crime, however, she foresaw the inevitable consequence and nevertheless reconciled herself with it. For example, A wants to steal B’s car. She knows full well that B’s car is safely guarded in a garage. A knows that to steal B’s car, she will have to break down the garage door thereby committing property damage. However, A’s main aim is not to break the garage door but to steal the car but realizes that breaking down the door is certain and/or necessary. A has fault in the form of dolus indirectus regarding the property damage to the garage door.
  3. Dolus eventualis: refers to the situation where committing a crime was not the accused actual aim, however she nevertheless foresaw it as a consequence of achieving her objective and persisted anyway. For example, X steals the hospital’s generator in load-shedding season. X does not know for a fact that this will result in the deaths of patients admitted to the hospital, but he foresees the risk, and nevertheless steals the generator. X will have fault for the death of any patients in the form of dolus eventualis.

 

So next time Annalise Keating mentions one of these “I sound smart” phrases, you will know what it is all about.

If you have any questions; do not hesitate to ask.

 

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