QUESTION 1
How does one determine whether X acted negligently? (5)
- The test for negligence is whether the reasonable person in the position of the alleged
wrongdoer would have foreseen damage / harm / prejudice and would have prevented it
- If the question is answered affirmatively – and the alleged wrongdoers conduct deviates in
this respect from that of a reasonable person, the alleged wrongdoer was negligent.
- This test was authoritatively formulated in Kruger v Coetzee
o If applied to the facts, one may accept that the reasonable person would have
foreseen damage and would have prevented it and
o Therefore, X was negligent.
QUESTION 2
Factual causation (5)
- The generally accepted test for factual causation is the conditio sine qua non test. (but for
test)
- This entails mentally eliminating / thinking away of the coduct.
- If the damage then also disappears, a factual link is present between the conduct and the
damage.
- The test is subject to much criticism
- Among others, it is said to be based on circular logic – and at best – a way to express the
existence of a causal nexus that has been determined in another way.
- Neethling and Potgierer argue that evidence and human experience are sufficient to
determine whether one fact flowed from another fact, and that a so-called test of factual
causation is superfluous.
- However, the courts consistently state that the conditio sine qua non is the test of factual
causation,
- If we apply the test to the facts – we must conclyde that if X had not bumped Y – she would
not have broker her arm.
- Therefore – a factual causal link is present between X’s conduct and Y’s damage.
, QUESTION 3
Say X was not an engineer, but a 17-year-old school boy? (10)
- The question deals with the negligence test for child wrongdoers.
- Initially a reasonable-child test was used.
- However, in Jonas v Santam, the Appeallate Division held that the ordinary reasonable-
person test must be used to determine whether a child was negligent.
o If the child is found to have been negligent – must be determined whether a child
was accountable or not.
o When testing for negligence, the subjective qualities of the child (age / maturity etc.)
are irrelevant but these qualities are considered when testing for accountability
- The test was criticised on two counts
o It would be more realistic and fair to judge the child against a reasonable-child test
standard
o The court put the cart before the horses by testing negligence before accountability
- In Rosa v Mtshayi
o The court followed the correct order, testing accountability first.
o The decision was confirmed in Weber v Santam and added that if the principles in
Jonas were applied in insight, most of the criticism against them would fall away.
- Applying these principles to the facts, it appears that the answer will only be different if X
was not accountable.
- If X is accountable, that is, if he can distinguish between right and wrong and act in
accordance with this insight, the fact that X is a child will not make a difference to the
answer.
- The question deals with the wrongfulness of an omission.
- The general criterion to be employed in determining whether an infringement of interests is
unlawful is the legal convictions of the community, or the boni mores
- The boni mores test is an objective test based on the criterion of reasonableness.
- The boni mores is decided by the legal policy makers of the community such as the
legislator and the judges.
- In Carmichele v Minister of Safety and Security
o CC made it clear that the boni mores must now be informed by the valies
underpinning the Bill of Rights in the Constitution.
- The more practicial applications of the boni mores test is to ask whether a subjective right
was infringed or wheher a legal duty was breached.
- The basic question to determine whether an omission is wrongful is whether a legal duty to
act was present and was breached.
- This is determined with reference to the legal convictions of the community or the boni
mores.
How does one determine whether X acted negligently? (5)
- The test for negligence is whether the reasonable person in the position of the alleged
wrongdoer would have foreseen damage / harm / prejudice and would have prevented it
- If the question is answered affirmatively – and the alleged wrongdoers conduct deviates in
this respect from that of a reasonable person, the alleged wrongdoer was negligent.
- This test was authoritatively formulated in Kruger v Coetzee
o If applied to the facts, one may accept that the reasonable person would have
foreseen damage and would have prevented it and
o Therefore, X was negligent.
QUESTION 2
Factual causation (5)
- The generally accepted test for factual causation is the conditio sine qua non test. (but for
test)
- This entails mentally eliminating / thinking away of the coduct.
- If the damage then also disappears, a factual link is present between the conduct and the
damage.
- The test is subject to much criticism
- Among others, it is said to be based on circular logic – and at best – a way to express the
existence of a causal nexus that has been determined in another way.
- Neethling and Potgierer argue that evidence and human experience are sufficient to
determine whether one fact flowed from another fact, and that a so-called test of factual
causation is superfluous.
- However, the courts consistently state that the conditio sine qua non is the test of factual
causation,
- If we apply the test to the facts – we must conclyde that if X had not bumped Y – she would
not have broker her arm.
- Therefore – a factual causal link is present between X’s conduct and Y’s damage.
, QUESTION 3
Say X was not an engineer, but a 17-year-old school boy? (10)
- The question deals with the negligence test for child wrongdoers.
- Initially a reasonable-child test was used.
- However, in Jonas v Santam, the Appeallate Division held that the ordinary reasonable-
person test must be used to determine whether a child was negligent.
o If the child is found to have been negligent – must be determined whether a child
was accountable or not.
o When testing for negligence, the subjective qualities of the child (age / maturity etc.)
are irrelevant but these qualities are considered when testing for accountability
- The test was criticised on two counts
o It would be more realistic and fair to judge the child against a reasonable-child test
standard
o The court put the cart before the horses by testing negligence before accountability
- In Rosa v Mtshayi
o The court followed the correct order, testing accountability first.
o The decision was confirmed in Weber v Santam and added that if the principles in
Jonas were applied in insight, most of the criticism against them would fall away.
- Applying these principles to the facts, it appears that the answer will only be different if X
was not accountable.
- If X is accountable, that is, if he can distinguish between right and wrong and act in
accordance with this insight, the fact that X is a child will not make a difference to the
answer.
- The question deals with the wrongfulness of an omission.
- The general criterion to be employed in determining whether an infringement of interests is
unlawful is the legal convictions of the community, or the boni mores
- The boni mores test is an objective test based on the criterion of reasonableness.
- The boni mores is decided by the legal policy makers of the community such as the
legislator and the judges.
- In Carmichele v Minister of Safety and Security
o CC made it clear that the boni mores must now be informed by the valies
underpinning the Bill of Rights in the Constitution.
- The more practicial applications of the boni mores test is to ask whether a subjective right
was infringed or wheher a legal duty was breached.
- The basic question to determine whether an omission is wrongful is whether a legal duty to
act was present and was breached.
- This is determined with reference to the legal convictions of the community or the boni
mores.
