S v HUMPHREYS 2015 (1) SA 491 (SCA) 


Criminal law — Murder — Mens rea — Dolus eventualis — Foresight and reconciliation — Whether driver reconciled himself with foreseen possibility of death of his passengers — Not where there was no indication that he had taken his own death into bargain.


Humphreys was convicted on ten counts of murder and four counts of attempted murder arising from the death and injury to his passengers when the minibus he was driving collided with a train. The high court found that he had both foreseen and reconciled himself with the possibility of fatal injury to his passengers when he entered a boom-controlled level crossing with booms down and warning signals flashing. On appeal the Supreme Court of Appeal (the SCA) agreed with the high court’s finding that Humphreys had subjectively foreseen the possibility of fatal injuries but disagreed with the high court that the second part of the dolus eventualis test had been met — that he had reconciled himself with the possibility that his passengers could get killed.

Held: The true enquiry was whether Humphreys took the consequences that he foresaw into the bargain. Dolus eventualis would be established if it could reasonably be inferred that it was immaterial to him whether these consequences would flow from his actions. Conversely, it would not be established if he may have thought that the possible collision he subjectively foresaw would not actually occur.

On the facts of the case the latter inference was not only reasonable, but also the most probable one. Firstly, if Humphreys foresaw the possibility of fatal injury to one or more of his passengers — as he did — he must by the same token have foreseen fatal injury to himself. An inference that he took their death into the bargain when he proceeded with his action would unavoidably require the further necessary inference that he also took his own death into the bargain. There was, however, no indication on the evidence that Humphreys 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 it could not be said that he had reconciled himself with the possibility of his own death, and it followed that he had not reconciled himself with the occurrence of the collision or the death of his passengers either.

This conclusion also followed from the evidence that it was practically possible to avoid a collision by clearing the level crossing within the one- minute gap between the boom coming down and the train arriving, and that he had done so on previous occasions. Humphreys probably thought that he could do so again. Self-evidently, the fact that his confidence was misplaced did not detract from the absence of reconciliation with the consequences he subjectively foresaw. While he foresaw the possibility of the collision, he thought it would not happen; he took a risk which he thought would not materialise. It followed that the court a quo’s finding of dolus eventualis was not justified.