Abstract:
The relationship between intention and negligence (dolus and culpa), in the context of the crimes of murder and culpable homicide, has become somewhat clouded since the decision of S v Ngubane 1985 (3) SA 677 (A) at 687E-I. This is due to the fact that the Appellate Division (as it was then), ruled that it is incorrect to assume, on the same facts, that proof of intention excludes the possibility that the accused was negligent - thus resulting in the inevitable inference that intention and negligence could overlap or co-exist on the same facts: for example, where an accused is charged with the crime of culpable homicide, but the state proves that the accused, in fact, caused the victim's death intentionally, the accused can nevertheless still be convicted of culpable homicide (see CR Snyman Criminal Law 5ed (2008) 218: 'From a theoretical point of view the decision in Ngubane is clearly wrong. The argument of the court is contradictory and a study in illogicality'; see also S v Ramagaga 1992 (1) SACR 455 (B) 465-466; S v Seymour 1998 (1) SACR 66 (N); S v Jara 2003 (2) SACR 216 (Tk); also compare JM Burchell Principles of Criminal Law 3ed (2005) 541; PF Louw 'S v Ngubane 1985 (3) SA 677 (A): Strafreg - die oorvleueling van opset en nalatigheid' (1987) 20 De Jure 173).
