Johannesburg - Two court cases - both arising from death caused by a fired gun, leaning on the test to prove an intention to kill and foresight for consequences, have delivered contrasting verdicts in a space of little more than a year.
In March last year, the Supreme Court of Appeal upheld the judgment of a Limpopo regional magistrate’s court where Nelson Makgatho was convicted of murder dolus eventualis - meaning he was responsible for the foreseeable consequences of his actions - and sentenced to 15 years in prison.
Makgatho, according to court papers, went to a tavern in Senobarana in Limpopo looking for his “girlfriend”, Daphne Madibane, but when she refused to go with him, he attempted to force her and the people she was seated with objected.
Makgatho apparently slapped Madibane and Nicholas Maloba before firing a shot up in the air.
At the heart of his appeal was the contention of whether he had acted with dolus eventualis when he caused the death of another person.
This week, Judge Thokozile Masipa held that the State failed to prove beyond a reasonable doubt that Oscar Pistorius had the requisite intention to commit murder when he shot and killed his girlfriend, Reeva Steenkamp, in February last year.
She said Pistorius had acted negligently when he fired shots into the toilet door that ultimately killed Steenkamp.
She found him guilty of culpable homicide.
The verdict has been met with mixed reactions, with some legal experts criticising the judgment while others supported it.
In the Makgatho case, the SCA said Makgatho foresaw the possibility that his firing a shot, whether into the ground or in the air, in the presence of many people, would result in harm.
“The fundamental question is not whether he should have accepted that the result would follow, but whether in actual fact he accepted that it would follow,” the SCA ruled.
“The test in respect of intention is subjective and not objective.”
Saturday Star