583 The question is what a reasonable person in the shoes of the accused would have done in the circumstances. One does not expect the diligens paterfamilias (reasonable person/man) to have Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity or the trained reflexes of a racing driver. 584 In short, the diligens paterfamilias treads the life’s pathway between moderation and careful common sense. 585 There are 3 questions here: Would a reasonable person in the same position as the accused have foreseen the reasonable possibility of the outcome occurring? Would a reasonable person have taken steps to guard against this possibility? Did the accused fail to take the steps that he should have reasonably have taken to guard against the outcome occurring. 586 See S v Ngubane 1985 (3) SA 677 (A). The standard of the reasonable person is raised to accommodate an accused who has special knowledge above the norm or who is a person who possesses or professes skill in the area in which potential liability arises e.g. reasonable doctor or reasonable lawyer. 587 Thus the test for negligence is not n ecessarily what the actor foresaw but rather , what a reasonable person would have foreseen and done in the circumstances . 588 This enquiry is not like under intention i.e. an enquiry into the state of mind of the accused 581 Burchell 417. 582 Snyman 204. 583 Burchell 415. 584 Ibid 421. 585 Ibid. 586 See Snyman 206 and Van der Walt 233. 587 Burchell 62. 588 Ibid 417.
132 LILS1514 2018 LILS1514 ( subjective test ), but rather, as to whether his or her conduct measured up to that of the reasonable person . 589 Thus the test is objective . 590 D. Causation In order to fi nd X’s act had caused a certain condition, such as Y’s death, X’s act must first be a factual cause and secondly, a legal cause of Y’s death. 591 It refers to the fact that the accused‘s conduct caused the unlawful consequence. 592 Factual causation means that had it not been for the conduct of the accused, the crime would not have happened. In order to eliminate factual causes which are irrelevant , the criterion of legal causation is applied. 593 Legal causation requires a flexible approach that considers policy considerations and logic on questions such as whether it is reasonable or just to regard the act as a cause of the forbidden situation. Tests used here include novus actus interveniens (a new intervening act), the adequate cause test etc. See S v Mokgethi 1990 (1) SA 32 (A) and S v Daniels 1983 (3) SA 275 (A).The courts have not applied any one test of legal causation consistently. 594 There is support for a composite approach that includes a variety of factors. 595 Consequently, according to legal causation , an act is a legal cause of a situation, if according to human experience, in the normal course of events, the act has a tendency to bring about that type of situation . 596 This actually resembles the adequate causation test . Causation in indigenous law appears to be approached intuitively.
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