Legal Notes

Theoretical question
What are the elements of the test for dolus eventualis in the case of somebody who is charged with murder – i.e., what must the state show to prove this form of mens rea beyond reasonable doubt? (5)

Practical problem question
Jake is the owner of a factory which is losing so much money that it is about to go out of business. Jake is in despair. He is a single parent who urgently needs to obtain funds for the medical treatment needed by his daughter Priya, who suffers from leukaemia. He decides that the only solution is to burn down the factory so as to obtain the insurance money and use it to pay for medical expenses. One Tuesday morning at 06h30, Jake enters the factory. The factory employees are only due at work by 07h30, but Jake knows that workers occasionally sleep in the factory building overnight if they have been working late the night before. Without checking whether anyone is in the building, Jake pours petrol all over the factory floor. He ignites the petrol, and makes a quick get-away.

The factory burns to the ground. In addition, all the employees’ possessions stored in their lockers in the factory, including clothes and money, are also destroyed. A factory employee, Klaas, who was sleeping in the canteen, died in the fire. Filled with remorse, Jake turns himself into the police and tells them about his insurance scam plan. He is charged with arson and attempted fraud (for burning down the factory to obtain the insurance money); malicious damage to property (due to

the destruction of the factory employees’ property that was in the building); and murder (in respect of Klaas’ death). You are the judge in this case. Evaluate if any of the following is a valid legal defence and, if not, explain briefly what category (type) of mens rea is present in each instance. 1. In respect of the charges of arson and fraud, Jake’s legal representative argues that the reason for his actions was laudable: he wanted to obtain money for his ill daughter’s medical expenses. Briefly refer to case law to support your answer. (6)

2. In respect of the charge of malicious damage to property, Jake’s legal representative argues that it was not Jake’s aim to destroy his employee’s possessions in the fire. (4)3. In respect of the charge of murder, Jake’s legal representative argues that Jake did not desire Klaas’ death.