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Options for Sa Law Approach to Negligence

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Criminal Law – 6 August
Reasonableness, continued
Options for SA law approach to negligence: 1) Purely subjective assessment of negligence supported by JC De Wet; 2) Cultural defences – but these are based on labelling people and assuming all people with the label are the same; 3) Objective test of reasonableness with subjective factors; 4) Incorporating subjective factors into the capacity. Any argument on the basis of capacity have to contend with the Eadie judgment, need to see if it applies more generally or only in the context in which it was made
Dilemma – either add objectives to a subjective test or add subjective factors to an objective tests
07:30 – Where is SA law at the moment?
Under Apartheid, AD sought to alleviate harshness of statutory crimes by requiring intention which doesn’t allow for subjective factors
Manase – “could and should have done this”. Could interpreted as subjective while would interpreted as objective
Specific cases
Mbombela (extract 140) 1933 (AD) – Facts: tried by jury, found guilty of murdering 9-year-old child. Accused was 18-20 years old. Children outside of hut, something with two small feet like a human. Called accused. Thought was tokoloshe. Fatal to look the tokoloshe in the face. Struck form with a hatchet several times without looking and found out it was his nephew. Defence was that it was a bona fide mistake
Jury found guilty of murder and sentenced to death in applying standard of reasonableness ignoring race, superstitions, intelligence (words of AD). AD held although belief was unreasonable it was bona fide so culpable homicide rather than murder and sentenced to 18 months of hard labour
16:30
Ngema case (extract 52) – Allowed belief in superstition to be considered in negligence test but still unreasonable to kill child thought to be attacking him as tokoloshe
Conduct of the accused was held to be voluntary
21:45 – mens rea considered at 500-503. Examination of standard of reasonableness. Established that test had been ‘fairly objective’ but difficult to apply in a heterogeneous society and this had been acknowledged by previous courts. 502 – illiteracy relevant? Sophistication? Ultimately held ‘some subjective factors can be taken into account’ – can be raised higher, incorporate beliefs short of craziness
A balance must be found. ‘Reasonable person of the same background’ the new test including numerus clausus of backgrounds to consider such as race, gender and culture. Felt that belief in tokoloshe was not uncommon but a reasonable person would have acted more carefully
But if 1st stage allows for subjectivity, how can the 2nd stage be objective?
S v Van der Mescht (142) (143) Van Aas (145)
On charge of culpable homicide, must prove that reasonable person would have foreseen the possibility of death

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