Topic 3.3 Flashcards
(24 cards)
What is negligence?
Negligence is the failure to adhere to a prescribed standard required by law, the accused fails to act as a reasonable man would have acted in the circumstances.
What connotates negligence?
Negligence connotates the falling short of a reasonable man standard which is determined partly by what a reasonable man would have done in the circumstances and partly by what law requires reasonable people to have done in the circumstances. The test for negligence is objective.
What is culpabliity in negligence?
Culpability presupposes that man is free to overcome the limitations of his nature and to choose whether to engage in conduct for which he will be held liable.
What is conscious negligence?
It is proposed that where only a faint or remote possibility of death is foreseen, culpa exists and not dolus. – This is called conscious negligence.
What are the facts in R v Hedley?
In R v Hedley case, A fired a shot at a bird which was just emerging from beneath the surface of water in a dam. The bullet missed the bird, struck the water and ricocheted off the water killing a girl a considerable distance away on the other side of the dam near some huts. The accused subjectively foresaw that if the bullet were to ricochet, it may hit someone in the vicinity of the huts but the likelihood of that happening when aiming straight into the water was very slim in his opinion.
What is held in R v Hadley?
It was held that It would thus appear that where there is foresight but of a remote possibility,
then the accused cannot be said to have renconciled himself and thus, there is no DE but there is conscious negligence. The accused was convicted of culpable homicide as it could not be established that he reconciled himself to the possibility of death, however there was consious negligence.
What is held in the S v Ngubane?
In S v Ngubane case, the accused was charged with murder. He pleaded guilty to CH which plea was accepted by the State. At trial, the Court found DE and convicted the accused of murder. On appeal, the AD set aside the conviction holding that the Court acted irregularly in
adjudicating a case of murder where the Acc had pleaded guilty to CH. They should
have rejected the plea if they wanted to find the Acc guilty of murder.
What is the test for negligence?
- Would a reasonable person in the position of the accused have foreseen the possibility of the unlawful consequence (death)?;
- Would a reasonable person in the position of the accused have taken steps to guard against that possibility?;
- Did the accuse fail to take the steps which he ought to have taken? (prevention)
Where is the test for negligence found?
The test for negligence, established in the case of Kruger v Coetzee
What is held in S v Burger?
In S v Burger case, culpa is tested by reference to the standard of the diligens paterfamilias, in the position of the accused. We are testing the accused against a notional epitome of prudence. We do not expect of a RM any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headstrong haste or nervous timidity. A RM treads life’s pathway with moderation and prudent common sense
What are the facts in R v Mbombela?
In R v Mbombela case, A was an 18 year old youth living in a rural tribe. Some children had told him that they had seen a suspicious figure in one of the huts. A went to investigate and in dim light, he came to the conclusion that the figure inside the hut might be a tokoloshe (evil spirit). In the tribal community there was the common belief that an evil spirit could take the shape of a small human being and whose gaze could cause death if you looked straight at it. A threw a blanket over the figure and axed it, when he dragged it out into the light, he realised he had killed a small child. It was clear that A had not intended to kill a human being but he did.
What is held in R v Mbombela?
It was held that the AD convicted him of CH. As A RM is a fictitious being who shows the care and prudence that can reasonably be expected of a person with ordinary knowledge.The court did not want to vary the standard of the reasonable man to suit every possible accused. It is proposed that a RM who believes in the tokoloshe would have done more to establish that it was in fact an evil spirit, perhaps he would have fetched other more senior men to assist, perhaps he would have waited to get a clearer view instead of relying on the say so of kids who are prone to foolishness. A reasonable man in the community would have foreseen that it was just a child and would have guarded against this possibility by verifying whether a small child belonged to that household. Thus, the proposition is that it is still possible to make a normative, objective assessment if we take into account culture but the standard is still one standard.
What was the constitutional interpretation of the ratio in Mbombela?
The constitutional interpretation of the ratio in Mbombela, there is only one reasonable man, the ordinary citizen who adheres to the constitution and has ordinary knowledge.
What is the objective standard of a reasonable person based on certain ‘subjectivities’?
- In the case of people who profess to be experts, a higher standard of care is required- This is not a qualification because a reasonable man does not profess to have skills which he does not possess.
- In the case of an actual expert, he is expected to possess a specialised skill- We are simply holding him to the standard of a reasonable man with that skill (Mahlalela).
- When we look at a RM in the position of the accused - We are looking to the external, physical position of the accused and not his personal circumstances.
What was held in S v Mahlalela?
In S v Mahlalela case, a sangoma had given a girl a herbal potion to drink. The potion was poisonous and caused her death. A was convicted of CH. It was held that although A did not foresee that the potion was poisonous (lacked DE), he OUGHT to have realised since he professed specialised knowledge of herbs. A reasonable man does not profess to have skills which he does not possess. He was judged by the standard of a RM who knew about herbs.
What was held in S v van der Mescht?
In S v Van der Mescht case, which dealt with the extraction of gold from a rock. The AD held that a RM would not have realised that heating gold amalgam would release poisonous gasses. Someone who had such knowledge would have fallen short of a reasonable man standard.
What must we be careful of when apply the RM test?
In applying the RM test, we must take account of the external conditions present at the time such as all objectively identifiable conditions. We ask what would the reasonable man in the external position of the accused had foreseen and done? The Courts caution us against being armchair critics.
What was held in S v Southern?
In S v Southern case, A was a bus driver charged with CH. That accused must be judged as a reasonable man in the position of driving a fully loaded bus on that particular day in those particular circumstances. The court till not take personal characteristics into account such as depression or a drug habit or anger issues but the Court will take into account any objective conditions such as physical handicaps.
What is held in van der mescht?
If a RM would have foreseen only bodily injury but not death, then the accused is not liable for CH. (Van der Mescht)
What was held in S v Bernadas?
S v Bernadas in the majority it was held that to prove CH, a RM must have foreseen death as a possible result. That a RM would have foreseen bodily injury short of death is not enough.
What was held in Balkwell v S?
In Balkwell v S the SCA holds if there is very serious injury it will equal foresight of death by a reaonable man. Where a possibility of serious injury is foreseen then death must be foreseen as serious injury and death are cause and effect
What was held in S v Van As?
S v Van As case, here, during an altercation, A gave B a hard slap on B’s cheek. As a result, B who was a very fat man, lost his balance, fell backwards, and hit his head on the cement floor and died. Trial Court convicted A for CH. On appeal. It was held that A could only be convicted of assault. It could not be proven that a RM would have foreseen death from a hard slap on the cheek. Only bodily injury was foreseeable.
Does a reasonable man guard against cimes?
A reasonable man does not commit crime and thus the question of whether a RM would have taken steps to guard against the unlawful consequence is always answered in the affirmative.
Is there a situation where a reasonable a reasonable man dosent guard against crimes?
There would never be a situation where the reasonable man would not guard against committing a crime and if there were, this would probably fall under GROUNDS OF JUSTIFICATION. A reasonable man always avoids committing crime.
