Attempted murder in South African law requires proof that the accused began carrying out a killing, intended to kill at that moment, and failed only because of something outside their own will, such as the shot missing or the victim surviving. It is a common law crime, so these elements come from case law rather than a statute.
The single most contested element is intention. The State must show the accused meant to kill, or knowingly accepted the risk of death, and a plan that never got past preparation is not enough. This guide breaks down each element, how courts test it and how attempted murder differs from related charges.
The Four Elements the State Must Prove
- Commencement of the murder. The accused must have moved beyond preparation and started carrying out the killing. Buying a gun and studying the victim’s movements is preparation. Firing at the victim is commencement.
- Intention to kill. At the moment of the conduct, the accused must have intended death, either as direct intent or as dolus eventualis, meaning they foresaw death as a possible result and proceeded anyway.
- Non-completion independent of the accused’s will. The victim must have survived because of something external, such as a miss, poor aim, a malfunction or medical intervention. A perpetrator who abandons the killing of their own accord raises voluntary desistance, a different enquiry.
- Unlawfulness. The conduct must be unlawful, with no recognised ground of justification such as private defence. A killing done in lawful self defence that misses is not attempted murder.
Intention to Kill: Directus and Eventualis
Dolus directus is the straightforward case: the accused’s goal was the victim’s death, as with a point blank shooting. Dolus eventualis is broader. The accused need not have wanted death, only to have foreseen it as a reasonably possible outcome of the act and to have reconciled themselves to it, such as firing into a moving vehicle or striking a blow to the head with a heavy object.
The Supreme Court of Appeal confirmed in S v Rebellington in 2008 that dolus eventualis is enough for attempted murder. Evidence of intent is drawn from the weapon, the target area of the body, the number of blows or shots, and what the accused said and did afterwards. Firing a shot into the ground during an argument reads very differently from firing at a person’s chest.
Preparation Versus Commencement
The line between preparation and attempt decides many cases. Preparation includes acquiring a weapon, following the intended victim, or luring them to a place. These acts show planning, but no attempt exists yet. Commencement is an act that forms part of the killing itself, such as pulling the trigger, stabbing, or administering poison.
Courts ask whether, but for the interruption, the crime would probably have been completed. A loaded weapon raised at a sleeping victim supports attempt once the physical execution begins, while the same weapon still in a bag supports, at most, conspiracy or planning charges.
How Attempted Murder Differs From Related Charges
| Charge | Key difference from attempted murder |
|---|---|
| Murder | The victim died. Causation links the conduct to death. |
| Assault with intent to inflict grievous bodily harm | Intent to cause serious injury, not death. The dividing line is the accused’s state of mind. |
| Common assault | Neither death nor serious injury was intended or foreseen. |
| Conspiracy to commit murder | Agreement to kill, without commencement of the killing itself. |
Trial and Sentencing in Practice
Attempted murder is prosecuted by the National Prosecuting Authority in the regional or High Court, depending on seriousness. Bail is decided under the Criminal Procedure Act 51 of 1977, and where violence and danger to the public is shown, bail can be opposed on those grounds.
Sentencing is at the court’s discretion. Courts weigh how close the attempt came to completion, premeditation, the weapon used, the victim’s injuries and the accused’s personal circumstances. Near complete, premeditated attempts attract sentences approaching those for murder, while remote attempts with clear abandonment of purpose are treated more leniently.
Common Mistakes to Avoid
- Assuming a missed shot is not a crime. A miss is still attempted murder if the intention to kill existed when the trigger was pulled.
- Confusing assault with attempt. The charge turns on intent to kill versus intent to harm, not on how badly the victim was hurt.
- Believing planning alone is attempt. Preparation without commencement is not attempted murder, though it can be another offence.
- Ignoring dolus eventualis. Reckless conduct that foresees possible death satisfies intent, even without a desire to kill.
- Assuming survival helps at sentencing. Survival avoids the murder charge, but a close attempt still attracts heavy punishment.
Frequently Asked Questions
What are the elements of attempted murder in South African law?
The State must prove that the accused commenced carrying out a killing rather than merely preparing it, intended to kill at that moment, and that the killing failed only due to circumstances beyond the accused’s will. The conduct must also be unlawful, with no justification such as private defence.
Is dolus eventualis enough for attempted murder in South Africa?
Yes. The Supreme Court of Appeal confirmed in S v Rebellington in 2008 that intention in the form of dolus eventualis suffices. The accused need not have wanted death, only to have foreseen it as a possible result and to have continued regardless.
What is the difference between preparation and an attempted murder?
Preparation covers steps before the killing starts, such as buying a weapon or following the victim, and is not attempted murder. Commencement is an act forming part of the killing itself, like firing or stabbing, which is what the crime requires.
How is attempted murder different from assault with intent to do grievous bodily harm?
The difference lies in intention. Attempted murder requires intent to kill, while assault with intent to inflict grievous bodily harm requires intent to cause serious injury without concurring death. The same conduct can be charged either way depending on the accused’s proven state of mind.
What sentence does attempted murder carry in South Africa?
There is no fixed sentence. Courts weigh how close the attempt came to completion, premeditation, the weapon, the injuries and the accused’s circumstances. Near complete, premeditated attempts are punished severely, often with long terms of direct imprisonment.
Disclaimer. This article is general information, not legal advice for a specific matter. If you or a family member faces such a charge, consult an admitted criminal defence attorney about the facts of the case.