Dolus eventualis: An endangered colonial species
Author: Tshepo Bogosi Mosaka
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 140 Issue 2, p. 239-262
This article focuses on the feasibility of dolus eventualis in addressing the problem of intended endangerments — that is, the question as to how the secondary consequences flowing from an act of endangerment, as distinguishable from an attack, can be said to be ‘intended’ (dolus). This problem manifests typically in the form of the orthodox marketplace bomb-thrower who has one primary aim but whose actions result in several other secondary consequences, some of which may not have been aimed or foreseen in any primary sense. After discussing why the two historical solutions — strict liability and the versari doctrine — are not viable answers to this problem, the remainder of the article examines the feasiblity of dolus eventualis as a third contemporary solution. This examination focuses on both the historical contradictions as well as the prevailing doctrinal controversies that are associated with dolus eventualis. The fourth part of the article reflects on five uncontroverted problems that currently beset dolus eventualis. The article concludes on a sceptical note: that dolus eventualis may not survive the many difficulties discussed in this article, and that exploring the expansion of negligence or the creation of a separate and new third form of fault may not be a bad idea.