E-Book Overview
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.
E-Book Content
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