Durbanite, Ms Kirstin Hagglund, graduated with a Master of Laws degree cum laude at UKZN’s Spring Graduation ceremonies.
Hagglund’s dissertation was a comparative study which looked at the laws of Germany and America. She said that in South African criminal law, intention will extend to those consequences which are foreseen by the accused as a result of engaging in certain conduct, no matter how remote those consequences may be. ‘This form of intention, dolus eventualis, was what the Supreme Court of Appeal found Oscar Pistorius guilty on,’ she said.
‘Dolus eventualis has been subject to much criticism because both dolus eventualis required for murder, and conscious negligence required for culpable homicide, contain an element of subjective foresight of the remote possibility of death occurring by the accused which blurs the distinction between cases of murder and culpable homicide,’ she said.
German and American law as well as academic opinion were consulted to establish how the respective countries have dealt with the conflation of murder and negligent killings. ‘Considering the lack of clarity surrounding the test for dolus eventualis, I was motivated to examine the current test for dolus eventualis in the case of murder and to determine its sufficiency and whether it can be more clearly distinguished from cases of culpable homicide.
From the research, I found that the current test for dolus eventualis in the case of murder cannot be properly distinguished from cases of culpable homicide and should be reformulated to include foresight of a real, reasonable or substantial possibility of death ensuing,’ said Hagglund. ‘This creates a higher standard of proof which is appropriate for the ‘seriousness and stigma attached to the crime of murder and allows for the contentious volitional component of the test to be dispensed with,’ she said.
‘However, if death was not foreseen as probable, it needs to be asked whether the accused’s conduct offends the legal system to cover those situations in which the accused’s conduct has no social utility and displays an extreme indifference to the value of human life,’ she added.
Hagglund, who is pleased to be joining the candidate attorney programme at international law firm Norton Rose Fulbright next year, said, ‘I could not be happier to be graduating cum laude. The hard work and dedication was definitely worth it. Many weekends and social events were sacrificed to write my dissertation or study for exams. Therefore, you need to be committed to and passionate about the topic you are researching and writing on.’
She thanked the UKZN School of Law for granting her a Postgraduate Scholarship that funded most of her LLM studies. ‘I am also eternally grateful to my parents for making the sacrifices that allowed me to pursue and devote myself to my LLM. I could not have completed it without their constant support, motivation and words of encouragement,’ she said.
She also acknowledged her supervisor, Dr Franaaz Khan, for her ‘constant and invaluable support and guidance.’
Words: Raylene Captain-Hasthibeer
Photograph: Rogan Ward