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95 S. African L.J. 480 (1978)
Aberratio Ictus: A Comedy of Errors - and Deflection

handle is hein.journals/soaf95 and id is 492 raw text is: ABERRATIO ICTUS: A COMEDY OF ERRORS-AND DEFLECTION* I INTRODUCTION In the English law, because of the nature of the definition of murder, it matters not that the accused is unselective in his victim, mistakes him, or kills the wrong person by mischance. In all three situations the liability of the accused is the same, and, in the application of the definition, the English law speaks of general malice, immaterial mistake and transferred malice. In the South African system they are termed dolus indeterminatus, error in objecto and aberratio ictus. It must be understood, however, that these locutions are no more than labels affixed to rules which elucidate the definition by demonstrating that the identity of the victim is irrelevant; an intention to kill a particular person forms no part of it. In other words, the intent of the accused to kill need not be related to the very person killed. This circumstance is not, of course, peculiar to the crime of murder. It is the general rule both with regard to offences against the person and those involving loss or damage to property. In a case of arson, for instance, it is legally irrelevant that the accused sets fire to the wrong building. It is no defence to an accused on a charge of theft that he took the wrong item of property. Confusion arises when what are mere illustrations of the working of the definition are seen as possessing lives of their own, and themselves become the reason and justification for what is done. The treatment of transferred malice is representative of this phenomenon. For example, Professor Glanville Williams,' in his discussion of the law relating to the unintended victim or mode, speaks of 'the law of transferred malice',2 explains that such a transfer 'occurs when an injury intended for one falls on another by accident',3 and asserts that it is one of the rules which 'extend4 the concept of intention'. Comments such as these, and there are many others in similar vein,6 assume, quite wrongly, that transferred malice is something additional to, and not merely * This article is based upon a thesis submitted to the University of Natal for the degree of Master of Laws. I Criminal Law: The General Part 2 ed (1961). 2 Op cit 126n5. 3 Op Cit 126. ' My emphasis. 5Op cit 125. 8 See, for example, J R L Milton 'A Stab in the Dark: A Case of Aberratio Ictus' (1968) 85 SALJ 115 at 117; E M Burchell and P M A Hunt South African Criminal Law and Procedure 1 (1970) 143n219; G H Gordon The Criminal Law of Scotland 2 ed (1978) 331. 480

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