“IT IS thanks to Oscar Pistorius that Jub Jub is now free.”

Statements like this erupted across social media last week after the murder convictions of hip-hop artist Molemo “Jub Jub” Maarohanye and Themba Tshabalala were overturned.

In 2012, the two were convicted of murder for the deaths of four schoolboys they had crashed into when they were racing in Soweto.

On appeal, three judges of the South Gauteng High Court in Johannesburg replaced the murder convictions with culpable homicide and reduced their sentences drastically.

Similarly, Pistorius was last month cleared of murder for shooting and killing his girlfriend Reeva Steenkamp through a toilet door in his home. He was found guilty of culpable homicide.

The legal term dolus eventualis, which was discussed in both judgments, was quickly latched onto as the scapegoat for the public to express their anger at what they see as celebrities “getting away with murder”.

Though the concept has been described as controversial even by law academics – mainly because the courts have in many cases been unclear about what it means – it does not deserve this reputation as an “easy way out”.

Many people first heard the term when Judge Thokozile Masipa discussed it in her judgment in the Pistorius trial, but the concept of dolus eventualis is not new.

According to professors Jonathan Burchell and John Milton, in their book Principles of Criminal Law, the concept came into South African law from Roman-Dutch law, which forms the basis of our law due to Dutch colonisation, via German law.

Its origins can be traced back to the 13 thirteenth century.

University of KwaZulu-Natal law professor Shannon Hoctor, in a 2008 paper, calls it “the most important form of intention in practice in South African criminal law” and “a cornerstone of criminal liability”.

In truth, Masipa’s judgment played no role in the Maarohanye and Tshabalala appeal judgment.

The only similarities are that, in both cases, someone died, it was clear who caused the deaths and those responsible have now been convicted of the same crime.

There is hardly any similarity between a man shooting his girlfriend to death through a door, thinking she was an intruder, and two men ploughing into children on the road while high on drugs and racing.

The only similarities are that, in both cases, someone died, it was clear who caused the deaths and those responsible have now been convicted of the same crime.

In the two cases, the questions the judges had to ask were the same for the simple reason that someone had been killed, a crime considered in hundreds of courtrooms daily.

In every case which someone is killed by another, the question must be asked whether the killing was intentional or accidental. The test for intention to kill is the subjective state of mind of the accused – did he or she intend to kill?

Dolus eventualis, one of three forms of intent in our law, comes into play when someone did not aim a weapon at another person intending to kill them.

For intent in the form of dolus eventualis to be present, the court must find that firstly the person responsible for the death had foreseen the possibility that his actions may cause the death and, secondly, must also have reconciled himself with that possibility.

In the case of Maarohanye and Tshabalala, the court said the drugs they took made them feel euphoric and invincible. They therefore did not believe that an accident, let alone death, was possible.

The fact that they raced down a public road in a drug-induced euphoria was reckless, the judges said, and therefore they were guilty of culpable homicide.

The test for culpable homicide is whether a reasonable person in the same position would have foreseen the possibility that his actions could result in death and would have taken steps to avoid it.

In Pistorius’s case, Masipa believed that Pistorius truly thought there was an intruder in the toilet, fired on impulse when he heard a sound he thought was the door opening and did not, in that moment, foresee that he could kill someone nor reconciled himself with that possibility.

She found that he acted negligently in approaching the perceived danger with a loaded firearm, and hence she convicted him of culpable homicide.

When one looks at the time frame, it also contradicts the claims that the Pistorius judgment paved the way for the overturning of Maarohanye’s and Tshabalala’s murder convictions.

The appeal in Maarohanye and Tshabalala’s case was heard in June, and their lawyers’ argument that intent in the form of dolus eventualis was not present was formulated before that.

This was long before Masipa discussed dolus eventualis in the Pistorius case on September 11.

In delivering judgment on the pair’s appeal, the judges did not even refer to the Pistorius judgment but rather to cases of deaths through motor vehicle accidents that are much more relevant.

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