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In this essay I shall explore the various pertinent components of the test for criminal negligence paying particular attention to the issues raised above, namely, the pure objective test, the notion of the reasonable man, the relative objective test, circumstances external to the actor, and the subjective test. In doing so I shall critically consult and review the writings of various South African writers on the topic as well as the courts' handling of the test and its attendant practical and theoretical difficulties. For the sake of completeness and clarity certain other closely related issues will be explored, namely, whether the test for negligent delictual liability is applicable in criminal law, and the distinction between and nature of unlawfulness and mens rea in negligence crimes. These latter issues, which will not be developed as fully, serve as a necessary component of any discussion on the central question in this essay, namely, the justness and fairness of determining criminal negligence by means of the objective reasonable man test.
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NEGLIGENCE CRIMINAL To w n AND REA: ap IS e MENS REASONABLE MAN C THE of TEST UNREASONABLE U ni ve rs i ty AN ONE? n of C ap e To w The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgement of the source. The thesis is to be used for private study or noncommercial research purposes only. U ni ve rs ity Published by the University of Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. CRIMINAL AND NEGLIGENCE MENS REA: IS THE REASONABLE MAN TEST AN UNREASONABLE ONE? Research dissertation presented for the approval of Senate in fulfilment of part of the requirements for the degree of Master of Laws in approved courses and minor dissertation. The other part of the requirement for this degree was the completion of a programme of courses. by RONALD HAYWARD APRIL 1993 LOUW Criminal Negligence and Mens Rea - page 2 TABLE OF CONTENTS page INTRODUCTION 3 CHAPTER I: CRIMINAL NEGLIGENCE IN GENERAL (i) Negligence, Crime and Punishment 9 (ii) Negligence and Civil and Criminal Liability 14 (iii)Negligence, Mens Rea and Unlawfulness 19 CHAPTER II: CRIMINAL NEGLIGENCE AND THE REASONABLE MAN TEST ( i) The Objective Test and the Reasonable Man 33 ( ii) Exceptions to the Reasonable Man 42 (iii)Criticisms of the Objective Test 58 (iv) "The Swing to the Subjective Test" 74 (v) 88 The Subjective Test and Criticisms Thereof CONCLUSION 102 REFERENCES 104 TABLE OF CASES 109 Criminal Negligence and Mens Rea - page 3 INTR.C>DUCTIC>N In order to determine criminal negligence in South African law the conduct 1 of an actor is traditionally measured tested against the standard of the reasonable man. 2 traditional represents test a timeless prudence. 4 and test The characteristics negligence for of the the universal is external actor