Criminal negligence and mens rea : is the reasonable man test an unreasonable one? [Master of Laws THESIS]

In this essay I shall explore the various pertinent components of the test for criminal negligence paying particular attention to the issues raised above, namely, the pure objective test, the notion of the reasonable man, the relative objective test, circumstances external to the actor, and the subjective test. In doing so I shall critically consult and review the writings of various South African writers on the topic as well as the courts' handling of the test and its attendant practical and theoretical difficulties. For the sake of completeness and clarity certain other closely related issues will be explored, namely, whether the test for negligent delictual liability is applicable in criminal law, and the distinction between and nature of unlawfulness and mens rea in negligence crimes. These latter issues, which will not be developed as fully, serve as a necessary component of any discussion on the central question in this essay, namely, the justness and fairness of determining criminal negligence by means of the objective reasonable man test. INTRODUCTION ......... 3 CHAPTER I: CRIMINAL NEGLIGENCE IN GENERAL (i) Negligence, Crime and Punishment ......... 9 (ii) Negligence and Civil and Criminal Liability ......... 14 (iii)Negligence, Mens Rea and Unlawfulness ......... 19 CHAPTER II: CRIMINAL NEGLIGENCE AND THE REASONABLE MAN TEST (i) The Objective Test and the Reasonable Man ......... 33 (ii) Exceptions to the Reasonable Man ......... 42 (iii)Criticisms of the Objective Test ......... 58 (iv) "The Swing to the Subjective Test" ......... 74 (v) The Subjective Test and Criticisms Thereof ......... 88 CONCLUSION ......... 102 REFERENCES ......... 104 TABLE OF CASES ......... 109