Chapter 16: Negligence

Introduction

Negligence – also known as culpa – is a lesser form of fault relative to intention. It is easier for the prosecution to prove and it usually attracts a lesser sentence than a conviction for the same conduct where the form of fault is intention. So, a conviction for culpable homicide would ordinarily attract a lesser sentence than for murder.

It is judged by reference to objective considerations – how one ought to conduct oneself - with account being taken of a few limited circumstances.

It is helpful to understand that intention and negligence are not mutually exclusive.[1] It is not necessary for the prosecution to prove that intention was absent before it can proceed to prove negligence.

Possible offences

Negligence is a sufficient form of fault for two common law crimes: culpable homicide and contempt of court by newspaper editors[2] - that is a conviction for contempt of court may be based on negligence where an editor of a newspaper publishes matter that constitutes contempt (such as publishing restricted material).

Alternatively, statutory offences for which negligence is sufficient fault are numerous, an example is that of negligent driving. For the purposes of our discussion we will confine ourselves to the common law offence of culpable homicide: the negligent unlawful killing of another human being.

The Test

Negligence is judged by the reasonable person test. An accused is judged to have been negligent if his conduct deviates from the standard of conduct of a hypothetical reasonable person in the circumstances of the accused.[3] The test for negligence in criminal law is derived from the civil law of delict case of Kruger v Coetzee.[4] In Kruger v Coetzee, Holmes JA (for a unanimous court) framed the test for negligence, for the purposes of delict,[5] as follows:

‘For the purposes of liability culpa arises if—

(a)       a diligens paterfamilias [the diligent father of the family] in the position of the defendant—

(i)         would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

 (ii)       would take reasonable steps to guard against such occurrence; and

(b)       the defendant failed to take such steps.’[6]

He went on to observe that the test for negligence had been conceived in these terms for the past fifty years.[7] This test for negligence, as stated by Holmes JA, has been translated from the civil law of delict, into criminal law, and remains the test for negligence in criminal law today.[8]

Various adaptations have been required to translate the test from delict into criminal law. These reflect that:

Negligently causing harm and patrimonial loss is not punishable in criminal law;[9]

Foresight of the actual prohibited consequence is required in criminal law.[10] For instance, on a charge of culpable homicide,[11] it is required that the reasonable person would foresee the death of the victim, and not mere injury;[12]

In addition to punishing the unlawful causing of a prohibited consequence (such as death), criminal law also punishes an accused for, unlawfully and negligently, being in a prohibited circumstance;[13]

Furthermore, criminal law requires, for negligence, that the reasonable person must have foreseen that his conduct is proscribed, that is, prohibited in law.[14]

To account for these differences, the test for negligence, for the purposes of the criminal law, must read as follows:

For the purposes of liability negligence arises if—

(a)       a reasonable person, in the circumstances of the accused—

(i)         would foresee the reasonable possibility of his conduct causing a consequence which is prohibited in law, or that being in those circumstances is prohibited in law;[15] and

 (ii)       would take reasonable steps to guard against such occurrence;[16] and

(b)       the accused failed to take such steps.[17]

The Reasonable Person

In the case of Burger 1975 A, Holmes gave his now classic exposition of this person:

Culpa and foreseeability are tested by reference to the standard of a diligens paterfamilias ('that notional epitome of reasonable prudence' ...) in the position of the person whose conduct is in question.

One does not expect of a diligens paterfamilias any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes of a racing driver. In short, a diligens paterfamilias treads life's pathway with moderation and prudent common sense.”

In Mbombela 1933 AD the reasonable person was described as "of ordinary intelligence, knowledge and prudence".

In this case, the accused was somewhere between 18 to 20 years old. The court regarded him as being of rather limited intelligence.  He lived in a rural village and believed in the existence of evil spirits called "Tokoloshes". It was widely believed, in his village, that a Tokelosh occasionally took the form of a little old man with small feet.  Further it was believed, and this belief was share by the accused, that to look the spirit in the face would be fatal.

On the day in question, some children who had been playing outside of a hut, which they believed to be empty, reported in terror to the accused that they had seen something inside this hut that had two small feet like those of a human being.  The accused concluded that the form was that of a Tokelosh. He took his hatchet and in the dim light attacked what he thought was the "Tokelosh", striking it several times with the hatchet. On investigation, however, the object turned out to be his nine-year-old nephew. He was convicted of murder, sentenced to death, and appealed.

His defence was that he had not intended to kill a human being since he genuinely believed the object to be a Tokelosh. This belief was accepted as genuine by the Appellate Division and it overturned the conviction for murder. The crucial question that confronted the court was whether the accused’s belief in the Tokelosh was reasonable. 

De Villiers JA stated (for a unanimous court) – repeated here at length for its importance in our law:

“The 'reasonable man' is in this connection the man of ordinary intelligence, knowledge and prudence. It follows that mistake of fact is not reasonable if it is due to lack of knowledge and intelligence as is possessed by an ordinary person, or if it is due to such carelessness, inattention and so forth, as an ordinary person would not have exhibited. The particular point, however, which is raised by the question reserved, is whether there is only one type of 'reasonable man who is to be taken as the legal standard, or whether in a case like the present, another type of reasonable man is to be conceived of, viz., 'an ordinary native aged 18 years and living at home in his kraal'. I have no doubt that by the law of this country there is only one standard of 'reasonable man.' I say this for several reasons. Thus in the present case if the standard were taken to be 'an ordinary 18 year old native living at home in his kraal,' then in each and every case the standard would have to be varied so as to suit the description of the particular accused. In other words, there would be no standard, and all that the jury would have to enquire into would be whether a person with the mental and moral and temperamental and racial idiosyncrasies of the accused, could reasonably fall into such a mistake of fact. In short, the only question would be, really, whether the accused's mistake of fact was bona fide, and the element of reasonableness would be practically eliminated ... It seems to me, therefore, that the standard to be adopted in deciding whether ignorance or mistake of fact is reasonable, is the standard of the reasonable man, and that the race, or the idiosyncrasies, or the superstitions or the intelligence of the person accused do not enter into the question.”

On the basis that the reasonable person is not superstitious, the court concluded that the mistake was unreasonable. It convicted the accused of culpable homicide and sentenced him to 12 months hard labour.

In the case of S v Van As 1976 (2) SA 921 A the court (Rumpff CJ, Galgut JA and Kotze AJA concurring) appeared[18] to take a stride toward a more subjective approach in which the capacities are to be taken account of in testing for negligence - the court is to consider not only what the accused should have foreseen and done, but what the accused could and should have foreseen and done:

"... In criminal law, when death follows upon an unlawful assault, it must be proved, before there can be a finding of culpable homicide, that the accused could and must reasonably have foreseen that death could intervene as a result of the assault. The expression ‘must have foreseen’ is used in the sense of ‘ought to have foreseen’.  ... The question is, therefore, simple: could and should the accused reasonably have foreseen that the deceased could have died as a result of the slap.

In the application of the law he is viewed ‘objectively’, but in essence he is viewed both ‘objectively’ as well as ‘subjectively’ because he represents a particular group or type of persons who are in the same circumstances as he is, with the same ability for knowledge. If a person, therefore, does not foresee what other persons in the group could and should have foreseen, then the element of culpa, viz, omission to foresee, is present. ..."[19]

However, the Appellate Division decision (Jansen JA, Corbett JA, Miller JA, Trengrove JA, and Viljoen JA concurring) of S v Ngubane 1985 (3) SA 677 (A) rejected the notion that Van As had subjectivised the test and restricted the test to essentially that of an objective concern, “albeit somewhat individualised”:

“It is also said that recent cases disclose a swing to the subjective approach ... and that the case of S v Van As 1976 (2) SA 921 (A) confirms this. It is, however, unnecessary for present purposes to express any opinion on this view, save for mentioning that there may be some doubt as to whether the phrase ‘redelikerwyse kon en moes voorsien het’ [‘reasonably could and should have foreseen’], used in S v Van As, connotes anything more than the conventional objective standard, albeit somewhat individualised.”

Thus, our law is harnessed with a “somewhat individualised” objective test for negligence which has been taken to be essentially an objective test. Whilst the test for negligence is in principle objective, certain qualifications should be borne in mind.

Qualifications

Three qualifications to the otherwise objective test are recognised. Only the first has the effect of making the reasonable person more like the accused and of lowering the standard.

The first qualification is that the test is only ‘subjectivised’ in the accused’s favour,[20] by considering what the reasonable person would do in the same circumstances in which the accused found him/herself.[21] It is only the external circumstances of the accused that may be attributed to the reasonable person and not any ‘internal’ circumstances.[22] The standard of the reasonable person does not take account of any disabilities on the part of the accused.

In S v Southern[23] the accused was a bus driver who had been charged with culpable homicide in consequence of the death of 11 of his passengers.  The deaths occurred during an accident in which he lost control of the bus while he was driving down a steep hill.  It appeared in evidence that the bus's breaks had failed. In this case, the test applied was how the reasonable bus driver would have driven a bus full of people down a hill without breaks.  The accused was found not guilty because he had not been negligent.

Secondly, the person operating in a field in which special knowledge or skill is required, will be judged by the standard of the reasonable expert in that field. This has the effect of raising the standard.

Thus, a surgeon is required to observe the standard of a reasonable surgeon and so also the driver of a car is required to observe the standard of a reasonable driver.  Where the conduct of an expert is in question, his or her conduct will be judged, as mentioned, on the basis of the conduct of a reasonable expert.  A person would be held to have been negligent in respect of the death of another human being if that person performed a surgical operation upon another and the reasonable surgeon in the circumstances would have foreseen the risk of harm, guarded against it and the person operating did not guard against the harm as the reasonable person would have.[24]

In S v Mahlahela 1966 (1) SA 226 AD the accused was a traditional healer who had been convicted of culpable homicide arising out of the death of a girl who drank a poisonous herb potion which the traditional healer had administered.

The court held that the accused's conduct was to be judged by the standard of a reasonable person with special knowledge of herbs.  The accused in the circumstances should therefore have realised the risk of life involved in drinking potion and guarded against it and yet had not.  Therefore, he was guilty of culpable homicide. 

The Latin maximum imperitia culpae adnumeratur is often cited in this respect.  Literally translated it means: lack of skill amounts to negligence.  It should be noted however that it is not the lack of skill which amounts to negligence but unreasonably engaging in an activity which requires skill when one lacks that skill.

Thirdly, even in a circumstance in which the accused had no special qualification or experience in any specific field he or she may be required to observe a higher standard of care if he or she happens to have specific knowledge relating to a particular circumstance. This, again, has the effect of raising the standard.

Generally one would not be negligent and so not liable to a conviction of culpable homicide in a situation in which a person who was walking calmly on the pavement suddenly ran out into the road in front of your vehicle.

However, if you were driving a car and you noticed that a person walking along the pavement is someone you know and who you know is blind, this knowledge will be attributed to the reasonable person. If this person suddenly stepped into the road and you knocked him/her over and killed him/her, your conduct will be judged against that of the reasonable driver who knew that a pedestrian nearby was blind.

Criticism

This test has been subjected to criticism for setting a standard that is unattainable for some.[25] For many the solution lies in taking account of the more subjective personal ‘internal’ attributes of the accused and attributing them to the reasonable person.[26] However, the more the subjective attributes of the accused are attributed to the reasonable person, the more like the accused the reasonable person becomes. The more like the accused the reasonable person becomes, the less unreasonable his conduct appears. Taken to its logical end, if all characteristics of the accused are attributed to the reasonable person, the reasonable person becomes identical to the accused. Where the reasonable person is identical to the accused, their conduct would necessarily coincide and the accused’s conduct is rendered, necessarily, reasonable.[27] In effect, there would be no standard against which to compare the conduct of the accused. On the other hand, some account must be taken of the characteristics or circumstances of the accused so that his conduct is not compared with some impossible standard.

However, our law also should not penalise those who do not observe this standard because – however hard they try – they cannot. It is unfair to judge a person by this objective standard if he cannot observe the standard.[28] Botha endorses the view that it is manifestly unfair and unjust to inflict punishment upon an accused for failing to act as a reasonable person if he could not act as a reasonable person.[29] Louw argues that an accused can only be measured against what would be reasonable for him to do, given his own capabilities.[30] Hart notes: [I]n a civilised system only those who could have kept the law should be punished.’[31]

This solution – of balancing objective and subjective attributes – inevitably involves a double compromise. It requires a compromise on the standard that we demand of everyone in society, and also on the extent to which we are prepared to take account of what we can expect of any individual accused.

Even Whiting’s powerful motivation for a subjective standard of the reasonable person retains a degree of objectivity – ‘the good citizen’.[32] However much we may wish to subjectivise the standard, we must maintain a degree of objectivity. We must maintain an objective standard in order that there exists a standard to which we must aspire and against which we may be judged. This cannot be compromised. Yet, it is unfair to judge a person by this objective standard if he cannot observe the standard. This is a double bind. Louw states that ‘[w]hatever future progressive modifications there may be, the objective test ... will always lead to an unsatisfactory compromise because the accused will always be judged against someone else’s standards’.[33]

An alternative possible solution to subjectivising the standard of the reasonable person is to make it subject to an enquiry into capacity.[34] This is the basis upon which the test of the reasonable person may be made fair and just. We cannot subjectivise the standard because an objective standard is required. The answer appears to lie in whether the accused can be expected to observe the standard. However, as I will argue in the chapters on capacity, the test of capacity itself must be reconceptualised.[35]

Thus, for a finding of negligence, it must be the case that the accused acted unreasonably – in a manner that the reasonable person would not. However, if an accused did not act as the reasonable person, he can only be blamed for this if he could have acted reasonably – in the sense described under capacity.[36] Thus, for a finding of negligence, it must be the case that the accused did not act reasonably, but could have.[37] If the accused did not act reasonably but could not have acted reasonably, s/he is not responsible for his/her negligence.

Degree of negligence:

The degree of the accused's negligence is irrelevant to questions of criminal liability.  The slightest negligence is sufficient for criminal law.[38] Similarly contributory negligence on the part of the victim is also no defence.[39]

Contributory negligence on the part of the victim or negligence which was slight is only relevant to sentencing and maybe raised in mitigation of sentence.

Guarding against risk:

The mere fact that an accused brings about a consequence which a reasonable person would have foreseen does not render him negligent in relation to that result.  It is necessary also that the reasonable person in the circumstances would have guarded against the happening of the consequence and that the accused failed to guard against the consequence as the reasonable person would have.

Authority for this may be found in the leading case on negligence of Kruger v Coetzee. The facts were that a horse belonging to the defendant strayed on to a main country road through an open gate and caused a motor accident.  A delictual claim for damages arose out of the accident.  The defendant had foreseen the possibility of the horse straying through the gate and causing an motor vehicle accident[40] and he had taken certain steps to avoid this happening.  A temporary road had been constructive across the defendant's land to enable employees of the local authority to access a construction site and the gate in question was the gate from the main road to the temporary road.  The employees of the local authority had been leaving the gate open and though the defendant had complained to the local authority the employees continued to leave the gate open on occasion.

The defendant was not held liable on the basis that it had not been shown that he had been negligent because it had not been established that a reasonable person would have taken any further steps to prevent an accident.

Though this was a civil case, if a death had resulted from the accident and a criminal charge of culpable homicide had ensued, again the accused would not be liable on the same premise.

Thus, considerations of inconvenience and expense feature in respect of considering whether the reasonable person would have guarded against the harm.  In the above case (Kruger v Coetzee) the defendant could have taken further steps such as posting a 24-hour guard on the gate but this step was not considered reasonable -- that is one which a reasonable person would have taken.

Social utility, such as whether the conduct was urgent or laudable, is a further consideration which is considered in establishing whether the reasonable person would have guarded against the harm.

Foresight of actual consequence

The question whether the reasonable person in the circumstances of the accused would have foreseen the possibility of the occurrence of a prohibited consequence or the existence of a prohibited circumstance must be qualified to reflect the particular prohibited consequence or circumstance. For the crime of culpable homicide, the prohibited consequence of death must be reasonably foreseeable. This principle was expounded in the case of S v van As (1976 A).[41] In this case the accused had been involved in an altercation with the victim who was a very fat man.  The accused had delivered a hard slap against the cheek of the victim.  The victim fell backwards struck his head on the cement floor, became unconscious and died. The trial court convicted the accused of culpable homicide. The Appellate Division altered the conviction to assault since it had not been established that the victim's death was reasonably foreseeable.

Rumpff CJ (Gulgut JA and Kotze AJA concurring) stated:

“In criminal law, when death follows upon an unlawful assault, it must he proved, before there can be a finding of culpable homicide, that the accused could and must reasonably have foreseen that death could intervene as a result of the assault. The expression "must have foreseen" is used in the sense of "ought to have foreseen". If it is proved that the accused ought reasonably to have foreseen that death was a possible result and that the causation requirement has been satisfied the case is concluded. ... The question is, however, ... could and should the accused reasonably have foreseen that the deceased could have died as a result [of the assault]. That foreseeability of serious bodily harm usually, but not always, goes hand in hand with foreseeability of death is correct, hut it will certainly depend on the nature of the injuries inflicted in a particular case whether there was a reasonable foreseeability of death or not.”

Thus, for a finding of negligence, the particular prohibited consequence or circumstance must have been foreseen.

Conclusion

The test for negligence is as follows – from the case of Kruger v Coetzee:

(a)       a reasonable person, in the circumstances of the accused—

(i)         would foresee the reasonable possibility of his conduct causing a consequence which is prohibited in law, or that being in those circumstances is prohibited in law; and

 (ii)       would take reasonable steps to guard against such occurrence; and

(b)       the accused failed to take such steps.

The standard of the reasonable person remains, on our current law (following S v Ngubane), an objective one. It is somewhat subjectivised by reference, for the purposes of lowering the standard, to the circumstances in which the accused acted.

It is submitted that the only way that the necessary standard may be maintained and, at the same time, do fairness to an accused where that particular accused fails to observe the standard because s/he cannot observe the standard, would be to subject the test for negligence to the test for capacity – although a reformulated test for capacity.[42]


 

[1] S v Ngubane 1985 (3) SA 677 (A).

[2] S v Harber 1988 (3) SA 396 A – although, as indicated above, this position is susceptible to Constitutional attack given that is a pre constitutional judgment and the rights now enjoyed by the media under the Constitution.

[3] Kruger v Coetzee 1966 (2) SA 428 (A); R v Mbombela 1933 AD 269; S v Ngubane 1985 (3) SA 677 (A).

[4] Kruger v Coetzee 1966 (2) SA 428 (A) 430.

[5] Known as ‘tort’ in other jurisdictions. It is the civil law in terms of which one person may claim compensation from another for harm or loss caused by that other.

[6] Kruger v Coetzee 1966 (2) SA 428 (A) 430.

[7] Ibid.

[8] Snyman Criminal Law 6 ed (2014) 205; J Burchell Cases and Materials on Criminal Law 3 ed (2007) 482; Burchell Principles of Criminal Law 5 ed (2016) 419.

[9] Burchell Cases and Materials on Criminal Law 3 ed (2007) 482.

[10] Ibid.

[11] The negligent unlawful killing of another human being.

[12] S v Van As 1976 (2) SA 921 (A).

[13] Burchell Cases and Materials on Criminal Law 3 ed (2007) 482; Snyman Criminal Law 6 ed (2014) 205; R Whiting ‘Negligence, fault and criminal liability’ (1991) 108 SALJ 433.

[14] S v De Blom 1977 (3) SA 513 (A); Burchell Principles of Criminal Law 5 ed (2016) 416.

[15] It appears possible to reduce this requirement to the question of whether the reasonable person would foresee the reasonable possibility (as is currently the case) that his conduct is prohibited in law. This would capture both the factual requirement – that the reasonable person would foresee the fact that a consequence may follow or what his circumstances are; but also the required knowledge of law – that the consequence or circumstance is prohibited. Nevertheless, the extended formulation is most familiar to South African criminal law and will be adopted for the purposes of discussion.

[16] I omit any adaptation regarding negligence in respect of prohibited circumstances (where the reasonable person, in the circumstances of the accused would foresee the reasonable possibility that his circumstances may be prohibited (see Snyman Criminal Law 6 ed (2014) 206; Burchell Principles of Criminal Law 5 ed (2016) 416) on the basis that further enquiries (regarding reasonable steps) appear to be redundant (Whiting ‘Negligence, fault and criminal liability’ (1991) 108 SALJ 433 n 15).

[17] See Snyman Criminal Law 6 ed (2014) 206; Burchell Principles of Criminal Law 5 ed (2016) 424.

[18]Disputed by the Ngubane court.

[19] Translation from Jonathan Burchell & John Milton Cases and Materials on Criminal Law (1992) at page  395.

[20] That is, that the standard is lowered.

[21] S v Southern 1965 (1) SA 860 (N); R v Mbombela 1933 AD 269; S v Ngubane 1985 (3) SA 677 (A).

[22] Compare S v Ngema 1992 (2) SACR 651 (D); Burchell Principles of Criminal Law 5 ed (2016) 417.

[23] S v Southern 1965 (1) SA 860 (N).

[24] See R v van Schoor 1948 (4) SA 349 C and S v Mahlahela 1966 (1) SA 226 AD.

[25] See in particular the judgment in S v Melk 1988 (4) SA 561 (A): that an illiterate person cannot be judged on the standard of the literate person and a shepherd’s conduct cannot be judged on the standard of a university professor. See also Whiting ‘Negligence, fault and criminal liability’ (1991) 108 SALJ; DA Botha ‘Culpa – A form of mens rea or a mode of conduct’ (1977) 94 ibid; R Louw ‘S v Ngema 1992 (2) SACR 651 (D) The reasonable man and the tikoloshe’ (1993) 6SACJ.

[26] De Wet Strafreg 4 ed (1985); Botha ‘Culpa – A form of mens rea or a mode of conduct’ (1977) 94 SALJ; Louw ‘S v Ngema 1992 (2) SACR 651 (D) The reasonable man and the tikoloshe’ (1993) 6 SACJ; Whiting ‘Negligence, fault and criminal liability’ (1991) 108 SALJ.

[27] Lord Hobhouse noted: ‘if one adds all the characteristics of the defendant to the notional reasonable man, the reasonable man becomes “reincarnated” in the defendant’ (R v Smith [2000] Crim LR 1004, HL). See also CMV Clarkson Understanding Criminal Law (2005) 128; Snyman Criminal Law 6 ed (2014) 210.

This view is echoed in South African law regarding the standard of the reasonable person. See R v Mbombela 1933 AD 269; Snyman Criminal Law 6 ed (2014) 209–10.

[28] This normative imperative appears equally applicable to strict liability offences.

[29] Botha ‘Culpa – A form of mens rea or a mode of conduct’ (1977) 94 SALJ.

[30] Louw ‘S v Ngema 1992 (2) SACR 651 (D): The reasonable man and the tikoloshe’ (1993) 6 SACJ 363 –4.

[31] Original emphasis Hart Punishment and Responsibility (1968) 189.

[32] Whiting ‘Negligence, fault and criminal liability’ (1991) 108 SALJ 449.

[33] Louw ‘S v Ngema 1992 (2) SACR 651 (D): The reasonable man and the tikoloshe’ (1993) 6 SACJ 364. Snyman observes: ‘Before X can be blamed for his failure to comply with the required standard, his personal knowledge and abilities must be taken into consideration. He can be blamed only if one could have expected of him as an individual to comply with the required standard, and this will be the case only if X, taking into account his personal abilities, knowledge and experience, could have complied with the required standard.’ (original emphasis; Snyman Criminal Law 6 ed (2014) 206).

[34] James Grant 'The Responsible Mind in South African Criminal Law' (unpublished PhD Thesis University of the Witwatersrand, Johannesburg 2012).

[35] James Grant 'The Responsible Mind in South African Criminal Law' (unpublished PhD Thesis University of the Witwatersrand, Johannesburg 2012).

[36] This would introduce an internal limiting factor on offences for which – controversially – no fault is required (strict liability offences). Liability, in the absence of actual fault, could only be incurred where the accused was at least capable of fault.

[37] This concept is not entirely unknown to our courts. Rumpff CJ in S v Van As 1976 (2) SA 921 (A) 927–8formulated the test of negligence to include the question of whether the accused could act as the reasonable person. However, Jansen JA in S v Ngubane 1985 (3) SA 677 (A) 687has cautioned that this should not be taken to indicate a swing towards a subjective standard of negligence. However, at that point, Rumpff was concerned to preserve the objective standard of negligence.

See also the case of Weber v Santam Versekeringsmaatskappy Bpk 1983 (1) SA 381 (A), in which the negligence of a child was judged by reference to the child’s capacity for negligence – judged subjectively.

[38] R v Meiring 1927 AD 41.

[39] R v Lennett 1917 CPD 444.

[40] The reliance by the court on the actual foresight of the defendant is slightly at odds with what is required – only that the reasonable person would have foreseen the risk. Nevertheless, the present concern is with the second question in the enquiry – whether the defendant did all that the reasonable person would have. 

[41] S v Van As 1976 (2) SA 921 (A).

[42] James Grant 'The Responsible Mind in South African Criminal Law' (unpublished PhD Thesis University of the Witwatersrand, Johannesburg 2012).