The curious case of the Coligny trial

I have very little doubt that the judgement will be overturned on appeal.

What I would like to see is that it becomes possible to act against judges culpable of gross incompetence. This is not the first time that Judge Ronald Hendricks is guilty of drawing astonishingly bad conclusions - and surely, he should be disciplined and withdrawn from duty.

Clarification is needed to this  post above: privilege is indeed available to judicial officers in the case of criminal defamation  - I maintain that it is not available in other criminal offences.

Fraud and dolus eventualis (legal intent)

Many crimes require deliberate intent for a conviction - negligence is not sufficient. Deliberate intent can be described as the intentional causing of a criminal deed. Indeed, for most crimes negligence is not sufficient. In what follows, negligence is disregarded as a state of mind.

Intent can take a number of forms, from a deliberate conscious mindset pursuing a criminal goal, to a more abstract mindset which the law regards as blameworthy as *normal* intent. The latter is known as dolus eventualis or legal intent – explained more fully below.

Intent  is difficult to prove because it involves determining the actual state of mind of a person, utilising a so-called subjective approach. In most (if indeed not all) cases one has to look at objective facts to guess with the required degree of certainty the subjective intent accompanying the crime. It has to be stressed though that the objective facts are mere aids in determining the real intent. They are not supposed to be used to manufacture an intent the accused never actually had.

Before the Oscar trial, dolus eventualis was defined as follows:

“Iemand handel ook opsetlik ten aansien van ‘n gebeure selfs al is dit nie sy oogmerk om dit te bewerkstellig nie of deur hom as noodwendige produk van sy optrede voorgestel nie, en wel indien hy hom die gebeure as moontlik voorstel en in weer wil daarvan handel. Hy versoen hom met die risiko dat dit sal plaasvind en neem dit as’t ware op die koop toe...Let daarop dat die vraag nie is of hy hom ‘n voorstelling van die gebeure behoort te gemaak het nie, maar of hy dit inderdaad as moontlik voorsien het. Het hy hom hoegenaamd geen voorstelling van die moontlikheid gemaak nie, het hy die gebeure nie opsetlik bewerkstellig nie” [my belemtoning].

De Wet en Swanepoel: Strafreg , Butterworths, 4de uitgawe, pp139-140

To put it briefly (and consequently,  imprecisely), the mindset of a person who actually foresees a criminally significant result, but decides to take his chances whether it occurs or not, can be termed dolus eventualis. In a sense it is all about risk taking.

Although the initial Court of Appeal hearing of the Oscar saga professes at times to establish his actual mental intent, the following quote from the judgement casts serious doubt on whether the court is merely establishing what his subjective intent was:


“53 . The immediate difficulty that I [ie the judge] have with the accused’s reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon. His counsel argued that it had to be inferred that he must have viewed whoever was in the toilet as a danger. But as was pointed out in De Oliviera, 30 the defence of putative private defence implies rational but mistaken thought. Even if the accused believed that there was someone else in the toilet, his expressed fear that such a person was a danger to his life was not the product of any rational thought. The person concerned was behind a door and although the accused stated that he had heard a noise which he thought might be caused by the door being opened, it did not open.Thus not only did he not know who was behind the door, he did not know whether that person in fact constituted any threat to him. In these circumstances, although he may have been anxious, it is inconceivable that a rational person could have believed he was entitled to fire at this person with a heavy calibre firearm,without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him). This constituted prima facie proof that the accused did not entertain an honest and genuine belief that he was acting lawfully, which was in no way disturbed by his vacillating and untruthful evidence in regard to his state of mind when he fired his weapon.31

[54] In order to disturb the natural inference that a person intends the probable consequences of his actions, the accused was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. This the accused did not do. Consequently, although frightened, the accused armed himself to shoot if there was someone in the bathroom and when there was, he did. In doing so he must have foreseen, and therefore did foresee that the person he was firing at behind the door might be fatally injured, yet he fired without having a rational or genuine fear that his life was in danger. The defence of putative private or self-defence cannot be sustained and is no bar to a finding that he acted with dolus eventualis in causing the death of the deceased.[55]In the result, on count 1 in the indictment the accused ought to have been found guilty of murder on the basis that he had fired the fatal shots with criminal intent in the form of dolus eventualis. As a result of the errors of law referred to, and on a proper appraisal of the facts, he ought to have been convicted not of culpable homicide on that count but of murder. In the interests of justice the conviction and the sentence imposed in respect thereof must be set aside and the conviction substituted with a conviction of the correct offence.”

The judgement bristles with difficulties, but taking it at face value, one can say that behaviour which a court considers irrational will go a long way to sinking an accused as far as his mental state is concerned. So, back to our main enquiry, if a judge should deliver a judgement which turns out to be both wrong and irrational, one inches closer to a conviction for fraud.

At times I ask myself, in the context of the Oscar trial, whether one is actually dealing with dolus eventualis there? I seriously doubt whether in his mind Oscar was engaged in any risk evaluation when he blasted the door. In fact, I wonder whether he had any thought at all except self preservation, a desire to protect the lady in his bed, and fear. This just by the way.

For the purposes of fraud the concept of dolus eventualis would seem to make it easier to prove “intent” in a judgement as one can rely to a great extent on the very words and reasoning of the judgement. One also does not have to assert that the judge knowingly pulled a fast one – only that he had foreseen as an irresponsible possibility that he was pulling a fast one.

"A mere lie foolishly acted upon", is not fraud. The fraudster must intend his lie to be acted on (see generally, Milton pp765-768). A shorthand way of stating the requirements (the lie coupled with the intent to influence the behaviour of the target) is that there has to be an intention to defraud. It seems to me that in the case of judicial fraud, the intent to defraud can hardly be absent when the judge (with dolus eventualis) intends the machinery of the law to crush the victim. After all, one is not dealing with idle fibbing, but a determined attempt to hit the target, utilising a judicial concoction of spells. Once it is determined that a bad judgement was delivered accompanied by dolus eventualis, it can hardly be said that there was no intent to defraud.