The Role of Error in Objecto in South African Criminal Law

Publication Date01 February 2016
AuthorKelly Phelps
The Role of Error in Objecto in
South African Criminal Law:
An Opportunity for Re-evaluation
Presented by State v Pistorius
Kelly Phelps
University of Cape Town, Cape Town, South Africa
State vPistorius provides an opportunity to consider error in objecto in the context of the
broader approach to dolus in South African criminal law. For the last 60 years South Africa has
taken a consistently subjective approach to assessing intention, evidenced through the courts’
rejection of versari, the presumption of intent and transferred malice. This upholds individual
autonomy and assigns blame on a principled basis, thus it has achieved recognition from the
Constitutional Court. By recognising foresight/knowledge of unlawfulness as a component of
dolus,De Blom took subjectivity to its logical conclusion in 1977. Consequently, error in objecto
likely only applies to dolus directus, is heavily influenced by the now defunct doctrine of
transferred malice and has not become an entrenched principle in our law. It must thus yield to
the basic principles of criminal law, including subjectivity and the putative defences flowing from
De Blom. This was the manner in which it was correctly applied in State vPistorius, although the
reasoning was not evident in the judgment. Reviewing error in objecto in the broader scheme of
dolus therefore shows that it is inaccurate to claim that the victim’s identity is always irrelevant
to a charge of murder.
Subjective intention, putative defences, error in objecto, State v Pistorius
Every so often cases come be fore the co urts that gi ve academi cs the opportunity to re-evaluate an
ancient principle of law. State vPistorius
is one such case. In the build-up to the trial most crim-
inal law specialists believed that legally this would be an unremarkable trial. The courts
Corresponding author:
Kelly Phelps, Department of Public Law, University of Cape Town, Cape Town, South Africa.
1. State vPistorius (CC113/2013) [2014] ZAGPPHC 793 (12 September 2014).
The Journal of Criminal Law
2016, Vol. 80(1) 45–63
ªThe Author(s) 2016
Reprints and permissions:
DOI: 10.1177/0022018315623683
unfortunately deal with murder trials all too often and are well-versed at engaging with the appli-
cable laws—most murder trials ultimately turn on an interpretation of the facts rather than
the law.
However, on reading the state’s indictment it soon became clear that this impression was mistaken. In
response to Mr Pistorius’ claim that he was acting under putative private defence
the state sought to rely
on a little-known principle of South African criminal law called error in objecto: a mistake as to the
identity of the victim cannot provide a defence to a murder charge.
Thus paragraph 5 of the state’s
‘Summary of Substantial Facts’ read as follows: ‘The accused said to witnesses on the scene that he
thought she was an intruder. Even then, the accused shot with the direct intention to kill a person. An
error in persona, will not affect, the intention to kill a human being’.
In their Heads of Argument at
the trials closing the state also included an alternative based on dolus eventualis:
Even in the event that the court were to accept the accused’s version, it is submitted with respect that he can-
not escape a finding that he acted with dolus eventualis by arming himself and, whilst approaching the ‘dan-
ger’, foresaw the possibility that he may shoot and kill someone but reconciled himself with this possibility by
walking into the bathroom and then without objective or subjective cause, fired four shots into a small toilet
cubicle whilst anticipating that someone was in the cubicle and likely to be killed.
Whether Judge Masipa’s verdict was based on an interpretation of law or an evaluation of the facts and if
the former, whether her interpretation of the law was faulty, remains to be seen. This will be the subject
of the pending appeal and the Supreme Court of Appeal will decisively settle the matter. Nonetheless,
the time is ripe to evaluate error in objecto in order to understand its place in the broader scheme of
South African criminal law. This article will thus consider error in objecto in light of the two most
critical shifts in our law on mens rea in an attempt to provide a holistic understanding of the principle:
the move towards a subjective test for dolus; and the recognition of knowledge of unlawfulness as a
component of mens rea. It will be shown that any potential role that error in objecto may have in South
African criminal law is contingent on recognising the centrality of mens rea and a subjective enquiry
into intention.
The Move towards a Subjective Test for Dolus
Jurisdictions can broadly be divided into two approach categories with regard to assessing fault: psycho-
logical systems of fault
and normative systems of fault.
Psychological approaches to fault predomi-
nantly entail subjective assessments while normative approaches to fault generally entail objective
South Africa predominantly follows a psychological system of fault. It is now trite that
intention is subjectively assessed in South African criminal law, that dolus eventualis is the most
2. Mistaken belief in self-defence.
3. This principle is variously described as error in objecto or error in persona. For the purposes of this article all references to the
term error in objecto will be synonymous with error in persona.Error in objecto can include mistakes beyond merely mistakes
of identity, but this article is restricted to mistaken identity of the victim.
4. SvOscar Leonard Cark (sic) Pistorius ‘Summary of Substantial Facts in Terms of Section 144(3a) of Act 51 of 1977’.
5. Dolus eventualis is often referred to as legal intention. In the context of murder, it occurs where the perpetrator foresees the
possibility of the death occurring and proceeds with his/her conduct, reconciling him/herself with the death: J.M. Burchell,
South African Criminal Law and Procedure Volume 1 General Principles of Criminal Law, 4th edn (Juta: Claremont, 2011)
6. The State Versus Oscar Leonard Carl Pistorius: State’s Heads of Argument at para. 76.
7. South Africa and other common-law systems: Burchell, above n. 5 at 355.
8. For example Germany. See G.P. Fletcher, The Grammar of Criminal LawAmerican, Comparative, and International Vol
One: Foundations (Oxford University Press: Oxford, 2007) 321; J.M. Burchell, above n. 5 at 355.
9. Burchell, above n. 5 at 355.
46 The Journal of Criminal Law 80(1)

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