Attempted murder case law in South Africa works by answering two questions through decided appeals: did the accused intend to kill, and had the accused begun carrying out that intention? The appeal courts have held that attempted murder requires intention to kill, including intent in the form of dolus eventualis where the accused foresaw death as possible and reconciled themselves to it, and that the accused must have commenced the execution of the killing. Mere preparation, however frightening, is not attempted murder.
Because attempt liability is common-law, the doctrine is built almost entirely from Appellate Division and Supreme Court of Appeal judgments rather than a statute. Those judgments decide real cases involving shootings, stabbings and poisonings, and they directly affect whether an accused is convicted of attempted murder, a lesser offence, or nothing at all.
The Two Elements the Case Law Tests
Every attempted murder enquiry breaks into the same two parts. First, the mental element: intention to kill, in any of its forms. Second, the conduct element: an act that commences the execution of the murder, going beyond mere preparation. The case law polices both edges.
| Element | What the State must prove | Where it usually fails |
|---|---|---|
| Intent to kill | Purpose to kill, or knowledge that death is virtually certain, or dolus eventualis | Injury aimed at, but no intent that the victim die |
| Commencement of execution | An act directly aimed at the killing, not remote preparation | Planning, threats or acquiring a weapon without an execution act |
The Intent Cases
The leading authority is S v Schoombie, decided by the Appellate Division in 1963. The court held that attempted murder requires intention to kill the complainant. Foresight that death might occur, without the accused reconciling themselves to that outcome, was not enough on the facts. The judgment established that the charge is aimed at the intention to end a life, not at dangerous conduct in the abstract.
Later appeal judgments refined rather than replaced Schoombie. The modern position accepts that intention includes dolus eventualis: where the accused subjectively foresaw the possibility of death and persisted anyway, attempted murder is made out. This is why firing into a vehicle or a crowd, strangling a victim until unconscious, or a sustained stabbing can sustain the charge even without an express death threat.
The flip side protects accused persons. Where the evidence shows intent only to assault, to frighten or to injure, the conviction must be attempted assault or assault GBH, not attempted murder. Case law repeatedly corrects convictions where courts inferred intent to kill purely from the dangerousness of the act, rather than proving the accused’s actual state of mind.
The Execution Cases
S v De Brun, decided in 1991, addresses the conduct element. The court held that for an attempt, the accused must have commenced the execution of the crime. Loading a gun, buying poison, or lying in wait is preparation. Pulling the trigger, administering the poison, or pointing the firearm at the victim and attempting to fire crosses into attempt.
The line matters because preparation without execution attracts no attempt liability at all. Where preparation plus an agreement to kill exists, the State may instead pursue conspiracy charges, which require proof of the agreement rather than an execution act. Defence work in these cases often concentrates precisely on which side of the line the proven conduct falls.
Impossible Attempts and Withdrawal
South African case law also convicts impossible attempts. If the accused pulls the trigger intending to kill, the attempt stands even though the gun was unloaded or the victim was already dead, because the intent and execution act were both present. By contrast, an accused who voluntarily abandons the killing after commencing execution, before the act becomes unstoppable, may escape attempt liability, though the courts examine abandonment sceptically.
Common Mistakes to Avoid
- Assuming a serious injury means attempted murder. Seriousness of injury does not prove intent to kill; the State must prove the mind of the accused.
- Confusing threats with attempts. Threats may support other charges, but attempted murder needs an act of execution.
- Treating dolus eventualis as automatic. Recklessness about injury is not the same as reconciling oneself to death.
- Overlooking withdrawal and impossibility arguments. Both are recognised in the case law and can defeat the charge where the facts support them.
- Pleading without expert review of the injuries. Medical evidence on the location and force of wounds is often the decisive proof of intent.
Get help with an attempted murder charge. Otrebski Attorneys’ criminal defence team in Sandton defends serious violent crime matters and engages with the case law at trial. Call 060 500 3098, after hours 072 779 0866, or book an appointment.
Frequently Asked Questions
How does attempted murder case law work in South Africa?
Attempted murder is a common-law offence shaped by appeal judgments such as S v Schoombie and S v De Brun. The courts test two elements: intention to kill, including dolus eventualis, and an act that commences the execution of the killing rather than mere preparation.
What is the S v Schoombie rule?
S v Schoombie, an Appellate Division judgment, held that attempted murder requires intention to kill the complainant. Later cases confirmed that intention includes dolus eventualis, where the accused foresaw the possibility of death and reconciled themselves to it.
What is the difference between preparation and attempt?
Preparation, such as buying a weapon or planning a killing, is not attempted murder. The attempt begins only when the accused commences execution, for example firing at the victim or administering poison. S v De Brun is the leading case on this distinction.
Can you be convicted of attempted murder if the victim was never in danger?
Yes. South African law convicts impossible attempts. If the accused executes the killing act with intent, the charge stands even if the gun was unloaded or the victim was already dead, because the intention and the execution act were both present.
What sentence does attempted murder carry?
Attempted murder is not a scheduled offence under the minimum sentence Act, so the court sentences on its discretion, weighing the intent, the injuries and the accused’s circumstances. Sentences range from correctional supervision to lengthy imprisonment, including life in extreme cases.
Disclaimer. This article is general information, not legal advice for a specific case. Case law develops constantly. Confirm principles against the reported judgments on SAFLII and consult an admitted attorney about any pending charge.