In S v MAAROHANYE AND ANOTHER 2015 (2) SA 73 (GJ) the High Court considered whether a conviction of murder could stand where drivers caused the death of pedestrians when they were racing each other.

Criminal law — Murder — Mens rea — Dolus eventualis — Effect of intoxication — Subjective foresight — Intoxicated drivers killing pedestrians while racing each other — Appeal against murder conviction based on dolus eventualis — Trial court’s findings as to effect of intoxicating drugs on mental disposition and foresight of accused irreconcilable with dolus eventualis — Appeal upheld.

The appellants caused a motor vehicle accident in which four pedestrians were killed and two maimed. The trial court found that his happened when the appellants lost control of their cars while racing each other on a public road in a built-up area, and while they were under the influence of drugs which ‘induced . . . a euphoric state of mind . . . causing them to take risks that they would otherwise not have taken and [to assume] that other road users would give . . . way or that they would be able to avoid colliding with oncoming traffic and other road users’. Based on these findings the trial court convicted the appellants of murder based on intention in the form dolus eventualis, for ‘(r)ecklessly disregarding the rules of the road, subjectively foreseeing that they might cause the death or injuries to (pedestrians) and still (persisting) in their conduct despite such foresight’. On appeal to a full bench of the high court —

Held: The determination of dolus eventualis was in essence a subjective value judgment that was reliant on inferential reasoning, and based on what the person thought, not on what he should have foreseen. Once the trial court made its finding about the effect of drugs on the faculties of the appellants — ie that the drugs induced a sense of euphoria which led them to believe that they would not cause any collision and that other road users would give way to them — dolus in any form, especially dolus eventualis, was eliminated from the equation. In this context there could be no suggestion that the appellants foresaw that their escapade could result in death and serious injury to pedestrians and had reconciled themselves to that eventuality. Their mental make-up must therefore have been the opposite of causing death or injury. Rather, their disposition was that no collision, let alone a life-threatening one, would take place. There having been no foresight of the possibility of a collision resulting in death or serious injury, coupled with a reconciliation to that eventuality and a persistence in their course despite that reconciliation, there could be no dolus eventualis. Both conditions required for dolus eventualis were clearly absent. This was the conclusion that should have been arrived at by the trial court and the result was that the murder and attempted-murder convictions could not stand.