Yusuf Omar – Analysis | 12 October 2017

The North Gauteng High Court found that the death of anti-apartheid activist Ahmed Timol amounted to murder.

The case was reopened after the family found new evidence that proved that Timol did not commit suicide, but instead died in police custody in 1971.

The judge found that the now deceased security policemen, Captains Hans Gloy and Faan van Niekerk, had not only brutally tortured him, but also murdered him with intent in the form of dolus eventualis.

South Africans are quite familiar with the term dolus eventualis as it was a point of focus in the Oscar Pistorius case.

Despite the term playing an important role in the judgements of these two major South African cases, many still find it difficult to understand its meaning in the legal context. Keeping this in mind, I will try to simplify its meaning for all to benefit and better understand the Timol case.

As far as murder is concerned, dolus eventualis is a form of intention.

Legally, it is defined as..

A person acts with dolus eventualis

if the causing of the forbidden result is not his main aim, but

(1)  he subjectively foresees the possibility that in striving towards his main aim, his conduct may cause the forbidden result and

(2) he reconciles himself to this possibility.[1]

In simple words, if a person commits an act without a direct intention to murder, but sees the possibility of death, and reconciles himself (comes to grips) with this possibility, then it will be regarded as intent in the form of dolus eventualis.

Let’s take a simple example…

In order to prove how well he can shoot his new firearm, Peter places an apple on the head of his son, Frank, and shoots at the apple. He does not wish to kill Frank, whom he loves dearly. He wants the bullet to hit the apple on Frank’s head. However, assume that the following happens:

Peter foresees the possibility that, in attempting to shoot the apple, the bullet might strike Frank instead of the apple, thus killing Frank. He aims at the apple, but the bullet hits Frank, killing him. If Peter is charged with having murdered Frank, can he succeed with a defence that he never intended to kill Frank, since he wanted the bullet to hit the apple?

Assuming that it is proven that he, in fact, foresaw the possibility of the bullet hitting Frank instead of the apple, and that he had nevertheless reconciled himself to this possibility, his defence will not succeed. In the eyes of the law, Peter had the intention to kill Frank. This form of intention is known as dolus eventualis.

In the Timol case, the court held that when the accused pushed Ahmed Timol off the building, they foresaw the possibility of his death and reconciled themselves to this possibility. The same was decided in the Oscar case regarding Reeva Steenkamp’s shooting.

[1] Snyman C R Criminal Law 6^th ed (LexisNexis 2014)

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Yusuf Omar resides in South Africa and holds a BA in Islamic sciences. He is currently a writer/presenter at Radio Islam. He loves playing with words and has an interest in fine arts. He also believes in mermaids. Check out some of his other articles here. Interact with him on Twitter and Instagram.