deceased to get down on the floor and to phone the police. He saw that the door to the toilet was closed, andhearing a noise coming from inside the toilet, promptly fired four shots at the door. It was only then that heretreated into the bedroom and realised that the deceased was not there, and it dawned on him that it could beher in the toilet. However, the respondent's explanation for having fired at the toilet door did vary during histestimony.The Court explained the ambit of the appeal. As a general rule, an appeal is a complete rehearing, without theleading of evidence, in which a trial court's conclusions of both fact and law may be challenged by having regard tothe evidence on record. The considerations differ somewhat in a case such as this, where the state seeks to appealagainst the acquittal of an accused and the appeal is brought under the provisions of section 319 of the CriminalProcedure Act 51 of 1977. As opposed to an accused who has the benefit of appealing against a conviction basedon alleged incorrect factual findings, the state may not appeal against an acquittal based solely on findings of fact.The state has no right to appeal except where there is a statutory right bestowed on it to do so. In this instance itsright was limited to the three questions of law reserved. Thus, the main issue before the present Court waswhether the trial court had erred in regard to the issue ofdolus eventualis.In order to prove murder, the state had to establish that the perpetrator committed the act that led to the death ofthe deceased with the necessary intention to kill, known asdolus.Mere negligence would be insufficient. The twoforms of intention which apply to murder aredolus directusanddolus eventualis. Dolus directusis present where aperson committed the offence with the object and purpose of killing the deceased.Dolus eventualisarises if theperpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death mightwell occur. Significantly, the wrongdoer does not have to foresee death as a probable consequence of his actions. Itis sufficient that the possibility of death is foreseen, and is coupled with a disregard of that consequence.On the first question of law, it had to be determined whether the trial court properly applied the above principles tothe facts that it had found had been proved. The trial court questioned how the respondent could reasonably haveforeseen that the shots he fired would kill the deceased or whoever was behind the door. The present Court heldthat the trial court's question wrongly applied an objective rather than a subjective approach to the question ofdolus. The issue was not what was reasonably foreseeable when the respondent fired at the toilet door, butwhether he actually foresaw that death might occur when he did so. Thus, the critical distinction was betweensubject foresight (what actually went on in the mind of the accused) and objective foreseeability (what would have
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- Fall '18
- Trial court, SCA