*** This is a revised and substantially expanded version of the post “Unsuccessful attempts to Justify Judge Masipa’s Errors”. It is organised around themes rather than individual commentators. ***
There is something deeply disturbing about many of the attempts that have been made to justify Judge Masipa’s judgment in the Pistorius case. They seem to take the line that her conclusion of culpable homicide was conceivable on the law as it stands, and therefore, although her reasons were questionable, her conclusion was correct. It’s the argument that the end justifies the means. This type of justification is as problematic in law as it is in most other areas of life.
In law it is a licence to introduce uncertainty in our law, or worse, distort or destroy the proper functioning of the principles. Perhaps even worse than that, it seems to reconcile with the notion that the principles don’t matter, as long as the right conclusion was reached. This is the worst possible implication because it reconciles with a lawless society. We must not accept this. It is not even the thin edge of the wedge – it is the wedge, the whole of the wedge.
Another common theme can be observed – related to the point made above. It’s the notion that there was nothing wrong with Masipa’s reasons because they are in line with a defence raised even if she did not actually apply the defence or principles underlying the defence. This is all very well, except that if the Judge did not actually rely on that defence or the principles underlying the defence, we cannot pretend that she did. This is law by wishful thinking. I’m not sure it’s as bad as lawlessness. But if lawlessness was bad, this is madness.
At this point it doesn’t serve any purpose to attempt to respond to the arguments raised in justification of Masipa’s judgment on an individual basis – that is, organised by individual attempt. It seems more sensible to extract the common themes from comments made (to date) and respond to those.
It is necessary to explain what dolus eventualis, dolus indeterminatus, error and objecto and putative private defence are, before I move on to explain what they are not. All of this is easier to understand when illustrated by the crime of murder – which is the intentional unlawful killing of another human being.
To confirm – we only have one single crime of murder in our law. Premeditation relates to bail or sentence. Also, no matter what form of intention you have, if you have any form, and if you unlawfully kill another human being, you are guilty of murder.
For authority, other than case law, I will refer to and quote from the textbooks of, arguably, the two leading authors on South African criminal law: Burchell (Principles of Criminal Law, 2013, 4th ed) and Snyman (Criminal Law, 2008, 5th ed). Both have also commented on the judgment in the Pistorius case, which I will discuss below.
Dolus eventualis is the widest form of intention known in our law. It exists (on the law as it stands: Ngubane 1985 AD; Humphreys 2013 SCA) where the accused, at the time of the killing: 1) foresaw the possibility of killing a human being; 2) accepted this risk; and 3) proceeded nevertheless.
Quite correctly it has been observed that, originally, Molemo Maarohanye (known as Jub Jub) was convicted of murder because he was found to have foreseen the risk of killing his victims, and to have accepted/reconciled to that risk. This conviction has now, on appeal, been reduced to one of culpable homicide and a sentence of 8 years imprisonment imposed. Humphreys (2013 SCA) was convicted only of culpable homicide. The facts of Humphreys are, briefly, that Humphreys drove a taxi and was transporting children. He approached a railway crossing where the boom had come down to stop traffic – in anticipation of a train that was about to pass. Humphreys switched to the right hand lane, overtook the waiting cars, and the boom, and begun to cross the railway line – directly in front of the oncoming train. The train struck the taxi killing 11 of the children being transported. Humphreys was charged with the murder of the 11 killed, but convicted of culpable homicide because the court found that, although he foresaw the risk that the children in his taxi could be killed, he did not accept the risk. This is an exceedingly controversial decision. The court’s reasoning seemed to be that he could not have accepted the risk, because, since he was driving the taxi, he too would be killed, and there was no evidence that he was suicidal. The apparently strange reasoning arose out of an application of the law of dolus eventualis.
The definition of dolus eventualis has been controversial for years – since the decision of Jansen JA in S v Ngubane (1985 AD). The definition of dolus eventualis adopted in Humphreys was set out in Ngubane. The definition was subject to devastating academic criticism. Nevertheless, this criticism was not even mentioned in Humphreys, when the court uncritically adopted the Ngubane definition of dolus eventualis.
However woeful our law is in respect of the requirements of dolus eventualis, Masipa’s judgement did not turn on a finding – that was crucial in the Humphrey’s case – that, although the accused did foresee the possibility of killing whoever was behind the door, he did not accept that risk. Again, that would have been a valid basis (on our law as it stands) to acquit the accused of murder. However, from the wording of her judgement, this was not the reasons she gave for acquitting the accused of murder.
It is also notable that the defence never argued (as some commentators are now suggesting) that the accused had not intended to kill – but only, perhaps, at most, intended to injure. This would have been a valid defence against murder, but it was not a defence claimed, and certainly not one – from the wording of her judgement – relied on by Masipa as a basis on which to acquit the accused of murder. I don’t see how it could possibly make Masipa’s judgement right to refer to a basis on which she could have relied, but did not.
Identity: Dolus Indeterminatus and Error in Objecto
Our law distinguishes one’s identity in the sense of one’s body as opposed to someone else’s body (which I will refer to as object/body identity) from one’s identity in the sense of your name and other characteristics, such as your personality (which I will refer to as nominal/name identity). Nominal/name identity is irrelevant in our law – just as the colour of a victim’s clothing is irrelevant on a charge of murder. You cannot raise the defence that you thought the victim was wearing a yellow shirt whereas it turns out to be blue. In the same way, you cannot raise the defence that your victim’s name happens to be Peter, and not John. If you have intention to unlawfully kill a human body, and you succeed in unlawfully killing that human body, you have committed murder in SA law.
This distinction and the irrelevance of nominal/name identity is borne out by our law in recognising that intention may be general (dolus indeterminatus), and in the attitude our law has taken to scenarios of error as to object (error in objecto).
Dolus indeterminatus is at play in scenarios where the accused throws a bomb into a crowded room. The accused may have no idea who is in the room (at the very least in the sense of nominal/name identity), but intends to kill whoever is in the room. The accused cannot raise the defence that s/he did not intend to kill because he had no specific (nominal/named) victim in mind. (Burchell (4th ed, 2013) explains dolus indeterminatus as follows:
“Where a person throws a bomb into a crowd or derails a train, the fact that he or she has no particular intention to kill a particular individual in the crowd or upon the train does not mean that the person lacks intention. Since he or she knows or foresees that someone will die, this person has what is called ‘general’ intention or dolus indeterminatus. Dolus directus, indirectus or eventualis may be general or indeterminate intention.”
The point here is that it is no defence to say you had no particular victim in mind. On this form of intention, the accused need not have known who was in the room at all, but will be held to have intention to kill nevertheless.
This principle extends liability. It excludes and denies a defence of mistake as to identity, at least in the sense of nominal/name identity. There is no basis for any suggestion that it somehow permits for exceptions. The rule is that you will not be able to validly argue, when you killed B, C and D, that you did not know that B, C, and D were in the room. There appears to be no basis on which it may be argued that somehow this rule would or should yield if one had some reason for thinking that, say, D was not in the room. It will not be a defence for an accused to argue that s/he only thought that B and C were in the room, or that B, C and E were in the room. The point is that it doesn’t matter who was in the room. It certainly cannot matter that an accused thought that B, C and E were in the room, because the accused thought that D was not in the room.
It follows necessarily that no matter what reason Pistorius might have had for thinking – if indeed he did – that it was someone else behind the door, and not the deceased, this cannot be a defence and it is no ground upon which to find that he lacked intention to kill.
This is confirmed by our law’s approach to problems that are far more like that of the facts of the Pistorius case. In our law, if one aims a shot at a particular human body (identified by a particular object/body), fire at and kill that particular human body, it is no defence if it transpires that that human body has a different name to what one expected. This is the essence of the law on error in objecto (error as to object).
Error in Objecto
Burchell (4th ed, 2013) distinguishes aberatio ictus (going astray of the blow – missing one’s target) scenarios, from error in objecto scenarios as follows:
“Aberratio ictus must be distinguished from error in objecto, since difficulty arises if the two are confused. Error in objecto occurs where A, intending to kill B, shoots and kills C whom he mistakenly believes to be B. In these circumstances A is clearly guilty of the murder of C. A’s intention is directed at a specific predetermined individual, although he is in error as to the exact identity of that individual. In other words, he intends to kill the individual regardless of whether the name of the individual is B or C. There is thus in the case of error in objecto, so to speak, an undeflected mens rea which falls upon the person it was intended to affect. The error as to identity is thus … irrelevant to the question of mens rea. On the other hand, in the aberratio ictus situation A intends to kill B, but misses him and kills C. A’s intention is ‘directed at one whom he knows and recognises to be [B]. It is through unforeseen and unintended factors that the blow falls upon [C]’. It follows that A has intention in respect of C only if he foresaw the possibility of C’s death or, for culpable homicide, if C’s death was reasonably foreseeable.”
Snyman (5th ed 2008) gives a similar explanation:
“What is the position if X intended to shoot Z but it subsequently transpires that he mistook his victim’s identity and in fact shot Y? Here his mistake did not relate to whether it was a human being he was killing, but to the identity of the human being. Murder is committed any time a person unlawfully and intentionally kills a human being, and not merely if a person kills that particular human being who, according to his conception of the facts, corresponds to the person he wanted to be the victim. For this reason X in this case is guilty of murder.”
There can be no question that the facts of the Pistorius case disclose an error in objecto scenario – assuming that Pistorius did not know it was Steenkamp behind the door. He aimed at whoever (whatever object/body) was behind the door, fired, and struck and killed that object/body. He did not miss – which would have brought into play the rules relating to aberratio ictus.
It is worth noting that neither author (Burchell or Snyman) make any mention of the reason why A thinks that C is B. This is in line with our settled law, that takes no account of the reason why A makes his/her mistake. If (nominal/name) identity is irrelevant, the reason for any error as to identity cannot be relevant. The identity of the actual victim is irrelevant as is, necessarily, any reason for a mistake as to identity.
Both Masipa and Burchell correctly observe that the facts of the Pistorius case disclose a scenario of error in objecto – in which the nominal/name identity of the victim is irrelevant.
After noting that, in error in objecto scenarios, the identity of the actual victim is irrelevant, Masipa asks what she says is required by the test of dolus eventualis (legal intention): Did the accused foresee the possibility of killing the deceased. This is the wrong question for two reasons. As discussed below, the accused’s defence was that he did not intend to unlawfully kill anyone. This focus – the very basis of the defence of putative private defence – is lost. But, putting that aside, secondly, it is wrong because it deviates from, even contradicts, the recognition that the facts disclose an error in objecto scenario and that the identity of the victim is irrelevant. The question then, correcting also for the defence of putative private defence, should have been: did the accused foresee the possibility of unlawfully killing whoever was behind the door.
Again, it does not help to say this cannot be true because he thought the deceased was in the bedroom. This is the argument that Masipa seems to have finally settled on – and it is fatally flawed in logic. She says: the accused could not have foreseen the possibility of killing the deceased, or anyone else for that matter, because he thought the deceased was in the bedroom. The fact that the accused thought that the deceased was in the bedroom says nothing about what he thought about the presence of someone else in the toilet. Indeed, it is his defence that he believed someone else was in the toilet.
Burchell perpetuates this error in logic. Referring to his scenario in which he notes that it is irrelevant that A intends to kill B, but kills C, he argues that there can be no intention to kill C if A had excluded in his mind the possibility that the person he thinks is B, could be C. But this is the definition of an error in objecto scenario – let’s take this slowly: A intends to kill B. He does not intend to kill C, but B. He thinks that B (the human body) is, well, B. In thinking that B is B, he does not think that B is actually C. So thinking that B is B and not C, he has excluded in his mind, the possibility that B is C. This is the definition of an error in objecto scenario and there is no dispute that the identity of the actual victim is irrelevant. That is, it cannot help the accused that he thought that B (the human body) was B – where he did not think that B was C. Therefore, it cannot assist an accused who has excluded from his mind the possibility that B is C.
Importantly, the reason for any error as to identity is also irrelevant. It cannot help an accused who thinks that B is B because B is not C. Our law is clear, in error in objecto scenarios, (nominal/name) identity is irrelevant, and it remains irrelevant no matter what an accused’s reasons are for making a mistake as to the identity of his victim.
Masipa’s error was similar. In her view the accused could not be convicted of murder because the accused did not foresee that he could kill C (or B), because he thought C was in the bedroom. In that case, it leaves him thinking that B was in the toilet. As we know from the rules of error in objecto, it is no defence to say that he thought that B was B, and not C.
Some have argued that the charge of murder was somehow defective and restricted the prosecution to prove that Pistorius knew (or foresaw) that it was specifically Steenkamp behind the door. Phelps has argued that: “ … the problem started off with the way that the indictment was drafted. It focused closely on him shooting at Reeva Steenkamp and not on whoever was behind the door”. Yet the indictment read as follows, and could not conceivably have said anything else:
COUNT 1 – MURDER …IN THAT … the accused did unlawfully and intentionally kill a person, to wit, REEVA STEENKAMP, a 29 year old female.
Given that the crime of murder is the unlawful intentional killing of another human being, it is difficult to understand how this restricted the prosecution to having to prove that the accused knew it was Steenkamp behind the door. They name the human being that he did unlawfully kill. On the settled law of error in objecto – where nominal/name identity is irrelevant and only object/body identity matters – all they had to argue was that Pistorius unlawfully and intentionally killed the body of Reeva Steenkamp. Reading in the technicalities, the indictment reads as follows: the accused unlawfully and intentionally killed the human body of Reeva Steenkamp, a 29 year old female. It is not necessary however to state the charge in this peculiar fashion, because the settled law of error in objecto requires that it be understood that way.
Putative Private Defence
It is true that the accused’s (original) defence was/is putative private defence.
Private defence excludes the unlawfulness of one’s conduct – only when one is objectively actually (in reality) under and unlawful attack that has commenced or is imminent. If so, one is entitled to use necessary and reasonable force against the attacker.
If, in hindsight, one was not actually under attack, one may not rely on private defence to render your conduct lawful – however, our law recognises that if one was mistaken in thinking one was under attack and entitled to use the extent of force one does resort to, one may raise the defence of putative private defence. If the accused makes this mistake, whether he is mistaken about the facts, or (as Burchell correctly adds) the law (De Blom 1977 AD), the accused cannot be convicted of murder. This is because an accused who is mistaken in this way has no intention to act unlawfully. Putting it positively, the accused believes s/he is acting lawfully. The enquiry is entirely subjective – what did the accused actually think or foresee? It is, as indicated, a complete defence to murder.
Pistorius was not actually under attack, and therefore he could not rely on the defence of private defence. He could however, and did, rely on a defence of putative private defence. This defence was the original defence raised by Pistorius and persisted in by his defence team in the alternative. This defence required that Masipa asked whether the accused foresaw the possibility that his conduct could unlawfully kill.
The problem is that, after specifically stating that she was turning her attention to this defence (of putative private defence), Masipa erroneously states that the question is whether the accused foresaw that his conduct could kill [full stop]. As discussed, this is not the right question.
It does not make her decision right to say, as many commentators have, that if Masipa had asked the right question, she would have (possibly) arrived at the same or right conclusion. We cannot know what conclusion she would have come to if she had asked a different question.
It also does not follow that – as Snyman is reported to argue – a defence of putative private defence somehow excludes a scenario from also being an error in objecto. Putative private defence describes the accused mental state – that s/he was mistaken in believing that whoever X (a human body) happens to be, X is about to attack. An error in objecto is an error as to who X actually is – B or C. These mistakes may obviously be related: an accused may have mistakenly believed s/he was under attack because s/he believed that X was B (who posed a threat), whereas it transpires, X was actually C (who posed no threat). This is indeed what Pistorius is claiming – and it invokes the principles relating to putative private defence and error in objecto.
In conclusion, we have seen several attempts to justify Masipa’s judgment, all of which seem to fail. It does not make Masipa’s judgment right to pretend that her reasons were reasons that would make her judgement right: that she decided that the accused had not accepted the risk of killing the deceased, that she recognised putative private defence, or that she found that the accused only intended to injure the intended target. These were not her reasons and, however valid they may be, it doesn’t help to pretend that they were her reasons. It also doesn’t help to attempt to justify the distortion of our law on dolus indeterminatus and dolus eventualis applied to error in objecto and the logical error made by Masipa. The law on dolus indeterminatus and error in objecto is clear. Nominal/name identity is irrelevant – for that very reason it cannot help the accused if he thought that it was B behind the door; nor can it help an accused who argues that he thought that it was not C. The identity of whoever was behind the door remains irrelevant – and the indictment did not need to remind the judge that it is not relevant. Finally, there is no reason to ignore this clear law (that nominal/name identity is irrelevant) just because the scenario triggers the rules relating to both error in objecto and putative private defence. There appears to be nothing to save us from the inevitable conclusion that Masipa made errors of law and errors of logic.
 See B Cubane, “JUDGE MASIPA GOT IT RIGHT: Oscar Pistorius and the intention to kill” http://shar.es/1aWktC via @thelawthinker.
 Possibly even in the sense of object/body identity – although this may be controversial and is unnecessary for present purposes.
 Footnotes omitted; p 348.
 As Kelly Phelps is reported to argue (Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014).
 This is very similar to the argument made by Burchell discussed below (under the heading “Error in Objecto”) – that someone (C) may be excluded from an error in objecto if A thinks that B is not C.
 Footnotes omitted; p 396.
 p 193.
 Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).
 Snyman disagrees on the basis that the defence was one of putative private defence. As discussed below (under the heading “Putative Private Defence”), this does not exclude the scenario from being one of error in objecto.
 Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191).
 Such as J Burchell “Masip’a decision to acquit Oscar of murder justified” (http://m.bdlive.co.za/opinion/?articleId=339191); N Taitz (“Judge Masipa was right on Dolus and murder” http://bit.ly/1wGgNdm”); Martin Williams, quoting K Phelps “Why Oscar Judge was right”, The Citizen, (Tuesday 16 September 2014); http://m.bdlive.co.za/opinion/?articleId=339191; Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34.
 Sonja Carstens, quoting CR Snyman “Legal question that divides” http://www.beeld.com/stemme/2014-09-19-regsvraag-wat-verdeel?vc=e9eccde605d8837f80b9fa6ccc527a34: “Die situasie staan in die reg bekend as error in objecto . But it is not in Oscar’s case happened. Maar dit is nie wat in Oscar se saak gebeur het nie. It was not error in objecto not. Dit was nie error in objecto nie. Jack in the case I would have realized I act unlawfully on. In die Koos-geval sou ek besef het ek tree wederregtelik op. “Pistorius did not realize he was acting unlawfully stops.“Pistorius het nie besef hy tree wederregtelik op nie. He thought he was acting in self-defense. Hy het gedink hy tree op in noodweer. The storms were not objectively present. Die noodweer was nie objektief aanwesig nie. This just in his mind, his subjective representation exists, “says Snyman. Dit het net in sy gedagtes, in sy subjektiewe voorstelling bestaan,” verduidelik Snyman.”