By Emma Sadleir
It was initially reported that Molemo Maarohanye, better known as Jub Jub, and his co-accused, Themba Tshabalala, would be charged with culpable homicide, and many were shocked when prosecutor Liezl van Jaarsveld told the magistrate the pair faced four murder charges, two attempted murder charges, one count of reckless and negligent driving and another of driving under the influence of alcohol.
The question that many are asking is: Why were Jub Jub and his co-accused charged with murder and not the lesser crime of culpable homicide?
The difference between the charges is that one requires intent while the other requires negligence.
Fault is an element of every crime. It takes the form of either intention (dolus) or negligence (culpa). Generally speaking, all common law crimes require intention, except culpable homicide.
Murder is the intentional, unlawful killing of another human being. Murder therefore requires that the accused acted with the intention to kill when they, as is alleged, raced their Mini Coopers down the busy, windy road in a residential area on that Monday afternoon.
Assuming that the facts establish that there was unlawful killing of human beings on that Monday afternoon in Protea North in Soweto, the question from a criminal law perspective becomes: Did Jub Jub and his co-accused act with the intention necessary for a murder charge?
The concept of intention in our law has gradually been extended to cover not just deliberate, but also foreseen conduct. Dolus eventualis or "legal intention" exists where the accused does not "mean" for the unlawful act to happen, but foresees the possibility that it could happen, and proceeds with his conduct anyway.
The concept is easily demonstrated: If A sets fire to a building, foreseeing the possibility that someone might be in that building, and someone in the building is burned to death, then the law recognises that A intended the death of that person, by foreseeing the possibility of death (however remote) and acting regardless.
In this case, in order to prove that the accused acted with dolus eventualis, the prosecution will need to prove that the pair had foresight of the possibility that someone might be killed when they decided to race through a busy suburb on a single lane road, allegedly under the influence of both alcohol and drugs, but reconciled themselves to this risk and recklessly proceeded anyway.
In our law, the question of foresight is a purely subjective one and requires that the accused must have foreseen the possibility himself.
The court must therefore place itself in the accused's position when he committed the act, and determine whether he foresaw the possibility of death at that time.
Direct evidence of the accused's state of mind is seldom available and courts can take notice of objective factors, such as the likelihood of oncoming traffic, the presence of pedestrians, the speed at which the accused was travelling, and the probable impact that narcotics and alcohol would have on the reactions of the accused. The more objectively probable the death is, the more probable that the accused subjectively foresaw it.
The courts have, however, warned against drawing an inference of subjective foresight too easily. To prove intention beyond a reasonable doubt by inference of objective factors, it must be shown that the inference is the only one that can be drawn in those circumstances.
Importantly, the accused does not have to foresee the result as a probable outcome of his conduct, but he must at least see the outcome as a possibility.
Criminal law expert Jonathan Burchell describes the concept of dolus eventualis as a form of intention derived from the notion of the inevitability of the occurrence of the consequence of the actions.
It remains to be seen whether the prosecution will meet this threshold test in the Jub Jub case.
If they are not able to, the crime of culpable homicide is a competent verdict for a murder charge because, barring intent, the elements of the crime are the same.
The prosecution's decision to charge the accused with murder sends a clear message to society that conduct of this sort will not be tolerated.
Irrespective of the charges brought by the prosecution, the immediate result is the same, four young boys are dead, two are in hospital with serious injuries, and two men are behind bars, hoping that their lawyers are able to persuade a court that they did not foresee the possibility that their conduct would have the result it so unfortunately did.
- Emma Sadleir is an associate at law firm Webber Wentzel.