A person's conduct is negligent if
(1) a reasonable person in the same
circumstances would have foreseen the possibility
(a) that the particular circumstance
might exist, or
(b) that his conduct might bring about
the particular result;
(2) a reasonable person would have taken
steps to guard against such a possibility; and
(3) the conduct of the person whose
negligence has to be determined differed from the
conduct expected of the reasonable person.
Read on a reasonable person and on
reasonable foreseeability!
The
concept of the ``reasonable person''
The expression ``reasonable person''
appears in both the first and the second legs (points (1)
and (2)) of the definition of negligence. Before considering the first two
legs of
the definition, it is necessary first to explain what is meant by ``reasonable
person''.
(1) The reasonable person is merely a
fictitious person which the law invents to personify the
objective standard of reasonable conduct which the law sets in
order to
determine negligence.
(2) By ``reasonable person'' is meant an
ordinary, normal, average person. Look at this case Mbombela 1933
AD 269 273
(3)The reasonable person is therefore not
somebody who runs away from every foreseen danger;
he may sometimes take a reasonable risk.
(4) The reasonable person-concept
embodies an objective criterion. Personal, subjective characteristics such as
his or her sex, race, emotional stability or lack thereof, degree of education,
or superstitiousness or
lack thereof, are not taken into account.
(5) The reasonable person is not a
perfectly programmed automaton which can
never make a mistake. He remains an
ordinary flesh-and-blood human being whose reactions are subject to the
limitations of human nature. In crisis situations, when he has to take a quick
decision, he can, like any other person, commit an error of judgment, that is
take a decision which later turns out to be wrong. It follows that the mere
fact that somebody has committed an error of judgment does not necessarily mean
that he was negligent.
Reasonable
foreseeability
Under this heading we discuss the first
leg (ie
point (1)) of the definition of negligence given above, that is the question
whether the reasonable person would have foreseen the possibility of the
particular circumstance existing or the particular result ensuing. In practice
this is the most important leg or component of the test for negligence.
(1) The courts sometimes ask whether the
reasonable person would have
foreseen the
possibility (of the result ensuing), and on other occasions again,
whether X
ought reasonably to have foreseen the possibility. However, it is
beyond doubt
that both expressions mean the same: foreseeability by the
reasonable person
and reasonable foreseeability by the accused are viewed as
the same
thing.
The
effect of
intoxication on liability
It is well known that the consumption of
alcohol may detrimentally affect a person's capacity to control her muscular
movements, to appreciate the nature and consequences of her conduct, as well as
its wrongfulness, and to resist the temptation to
commit wrongful acts. It may induce conditions such as
impulsiveness,
diminished self-criticism, overestimation of her abilities and
under-estimation of
dangers.
It may also result in a person being unaware
of
circumstances or
consequences which she would have been aware of had she
been sober.
What is the effect, if any, of intoxication on criminal liability?
What is said here of intoxication
resulting from the consumption of alcohol or
liquor,
applies equally to intoxication resulting from the use of drugs, such as
dagga and etc.
1. INVOLUNTARY INTOXICATION
It is necessary first to distinguish
between voluntary and involuntary intoxication. By ``involuntary
intoxication'' is meant intoxication brought about without X's
conscious and
free intervention, as in the following examples: X is forced to drink
alcohol against
her will; or X's friend Y, without X's knowledge, pours alcohol or a drug
into X's coffee, which results in X becoming intoxicated and committing a
crime while
thus intoxicated (as happened in Hartyani 1980 (3) SA 613 (T)). It is
beyond dispute
that involuntary intoxication is a complete defence. The reason
for this
is that X could not have prevented the intoxication, and therefore cannot
be blamed
for it.
2. VOLUNTARY INTOXICATION
As far as voluntary intoxication is
concerned, three different situations have to be clearly distinguished:
(1) the actio libera
in causa:where X
intends to commit a crime, but does not have the courage to do
so and takes to drink in order to generate the necessary courage.
(2) intoxication resulting in mental
illness: X is
acquitted in terms of section 78(6) of the Criminal Procedure Act,
owing to lack of criminal capacity,
and
(3) the remaining instances of voluntary
intoxication
CASE LAW: Chretien 1981
(1) SA
1097
(A). In this case X, who was intoxicated, drove his motor vehicle into a
group of
people standing in the street. As a result, one person died and five
people were
injured. He was charged with murder in respect of the person who
died and
attempted murder in respect of the five persons injured.
The court found that owing to his consumption of alcohol, X
expected the people in the street to see his car approaching and
move out of the way, and that therefore he had no intent to drive into them. On the charge of
murder he was convicted of culpable homicide,
because the intention to kill had been lacking.
X could not be found guilty on any of the
charges of attempted murder owing to the finding that he did not have any intent
to kill. The question arose, however, whether X
should not have been found guilty of common assault on the charges
of attempted
murder. The trial court acquitted him on these charges.
The state appealed to
the Appellate Division on the ground that the trial court had
interpreted the
law incorrectly and that it should have found the accused guilty of
assault. The
Appeal Court found that the trial court's decision was correct.
This case is a must know!
Summary of legal points decided by
Appellate Division (Rumpff CJ) in Chretien
(1) If a person is so drunk that her
muscular movements are involuntary, there can be no question of an act, and although the
state in which she finds herself can be attributed to an excessive intake of
alcohol, she can
nott be
found guilty of a
crime as a
result of such muscular movements.
(2) In exceptional cases a person can, as
a result of the excessive intake of alcohol, completely lack criminal capacity and
as a result not be criminally
liable at
all. This will be the case if she is ``so intoxicated that she is not aware
that what
she is doing is unlawful, or that her inhibitions have substantially
fallen apart''.
(3) The ``specific intent theory'' in
connection with intoxication is unacceptable and must be rejected. It is precisely because of
the rejection of this theory that in this case X could not even be convicted of
common assault. The intoxication
can therefore
even exclude X's intention to commit the less serious crime,
namely assault.
(4) The Chief Justice went out of his way
to emphasise that a court must not lightly infer
that owing to intoxication, X acted involuntarily or lacked criminal
capacity or
the required intention since this would discredit the administration
of justice.