User talk:Jamesangussutherland

Oscar Pistorius not convicted of murder
I was a well known attorney in South Africa (google james Sutherland,bafokeng)and I would like to clarify certain issues regarding Oscar Pistorius's conviction.

In South Africa murder is a common law offence. It is the intentional unlawful killing of a person. South African law does not differentiate between murder or premeditated murder. If the murder was premeditated it may result in a harsher sentence but not necessarily.

Culpable Homicide in contrast is the negligent unlawful killing of a person.

In South Africa there is a third conviction that is open to the Courts, namely murder dolus eventualis. This is also a common law crime dating back to Roman times but has been rarely applied in South Africa. It is, essentialy, the "reckless" unlawful killing of a person.

In other words, in South Africa a person accused of killing someone unlawfully can be convicted of the intentional killing (murder), the reckless killing (murder dolus eventualis) or the negligent killing (culpable homicide.

In other words, the word murder in murder dolus eventualis is a misnomer because murder requires the intention to kill whereas murder dolus eventualis does not.

To give a simple example. If a person drives at 150mph in a residential area in South Africa and kills a child crossing the street, that person will be convicted of murder dolus eventualis because that person recklessly disregarded the real possibility of killing someone. However, that person is not a murderer because he did not intend to kill anyone.

It is accordingly wrong to describe Oscar Pistorius as a murderer because he was not convicted of the intentional killing of Reeva Forman, but the reckless killing of her. The reports should merely reflect the fact that he was convicted of murder dolus eventualis, a common law conviction for the unlawful and reckless killing of a person.

When the lawmakers in South Africa determined minimum sentences they did differentiate between premeditated murder and murder but that was purely for the purposes of sentencing. As I have said, South African law only recognizes 3 convictions for the unlawful killing of someone, all of which are common law crimes, namely culpable homicide (negligence), murder dolus eventualis (recklessness) and murder (intentional). When determining these minimum sentences the lawmakers would not have contemplated murder dolus eventualis because this conviction had almost never been requested in South African Courts. Therefore, the State and the Court erred in even referring to a minimum sentence of 15 years.

It would be fair to say that the Romans who created these 3 forms of convictions for the unlawful killing of someone would be turning in their graves that a person convicted of the reckless killing of someone (murder dolus eventualis) would be described as a murderer because murder required intent.

Incidentally, when the Appeal Court convicted Pistorius of murder dolus eventualis it applied an objective test rather than the subjective test that had been applied in the earlier cases involving murder dolus eventualis. The Appeal Court was entitled to do this because it has an inherent right to modify the common law. Jamesangussutherland (talk) 03:05, 22 August 2016 (UTC)