Authored By: Luphumlo Mandla
University of the Free State
- Introduction
The “reasonable person” test, traditionally known as the diligens paterfamilias or the bonus paterfamilias, serves as an objective standard to assess negligence in both the Law of Delict and Criminal Law.[1] This fictional character is meant to be a personification of the qualities – care, knowledge, and circumspection – a community expects from its members on daily interactions.[2] However, the test fails to account for the diverse socio-economic realities of South African societies, its inappropriate application to children, and its tendency to blur the distinct legal elements of wrongfulness and fault.
- The Critique of the Unitary Standard: Socio-Economic and Cultural Blindness
The primary criticism of this test is its rigid objectivity, which often ignores specific capacities of the individual wrongdoer. In delictual law, a person is considered negligent if a reasonable person in their shoes would have foreseen the possibility of harm and taken steps to prevent it.[3] This makes no provision for the fact that an individual may be stupid, illiterate, inattentive, or intellectually retarded; everyone is expected to conform to the same objective standard.[4]
In a heterogeneous society like South Africa, this approach is problematic. It may be inequitable to blame an uneducated or unsophisticated person for failing to appreciate a danger that would be obvious to a more developed member of the community. While delictual law justifies this by arguing that a victim should not have to bear the risk of an actor’s ignorance, Criminal Law, which is concerned with personal blameworthiness, faces a crisis of legitimacy when applying this standard.[5]
Even with the judiciary, there is a recognised tension between the objective application of the law and the subjective realities of the accused. Rumpff CJ in S v Van As[6] noted that while the standard is objective, the reasonable person must be seen as representing a specific group of persons with the same intellectual capacity in similar circumstances.[7] Without this individuation, the reasonable person remains a “European” enlightenment construct that may be isolated from the mainstream realities of a country where poverty and illiteracy abound.[8]
- Measuring Children Against an Adult Yardstick
The application of the reasonable person test to children is of significant contention. Under the current approach established in Jones NO v Santam Bpk[9] and confirmed in Weber v Santam Versekeringsmaatskappy Bpk,[10] the court first measures the child’s conduct against the objective standard of the adult reasonable person.[11] Only after negligence is established does the court inquire subjectively into the child’s accountability (culpae capax).
By inquiring into fault before capacity, this approach places the cart before the horse. Critics argue that measuring a child against an adult standard is unrealistic, even if the child is technically accountable.[12] Under the traditional reasonable child approach, the negligence percentage would often be lower because a child’s youth was factored into the standard of care itself. The current method risks inflating the negligence of children in apportionment of damages, which is arguably unfair given their developmental stage.
- Conflation of Wrongfulness and Negligence
This involves the way the test is used and misused to determine elements of liability. Historically, wrongfulness and negligence were separated. Wrongfulness is determined by the boni mores, while negligence is determined by the reasonable person test.
However, recent trends in the Supreme Court of Appeal (SCA) have sought to redefine wrongfulness as the reasonableness of imposing liability, often asking if it is reasonable to hold a defendant liable assuming they were negligent.[13] This new direction has been slammed as a “Trajon horse” that allows the court to revisit the same questions of policy and foreseeability across multiple elements, leading to conceptual confusion.[14] By using the reasonable person standard as a generic reasonableness check for both wrongfulness and fault, the distinct function of wrongfulness is eroded. This is evident in cases of private defence and necessity, where courts often incorrectly apply an ex ante reasonable person test to determine wrongfulness, which should properly be judged ex post facto based on actual realities.[15]
- Proposed Solution: The Contextualised Hybrid Test
To address these critiques, South African law should move toward a “Contextualised Subjective-Objective Hybrid Test” for both negligence and wrongfulness. This consists of three reforms
5.1 Individuation of the standard based on “Control Groups”
Following the spirit of Rumpff CJ’s dissent in Van As, the reasonable person should not be a single, abstract entity, but should be tailored to the “control group” of the actor. For negligence, the questions: “How would a reasonable person with the same general background, education, and physical characteristics as the actor have behaved?”. This introduces a concession to the underlying moral basis of negligence while maintaining a workable objective standard for society.
5.2 Reinstatement of the reasonable child test
In cases involving minors, the court should deviate from the Jones approach, and the standard of care should be that of a reasonable child of the same age and developmental stage. This ensures that children are not unfairly penalised in the apportionment of damages and respects the constitutional principle that a child’s best interests are of paramount importance.[16]
5.3 Strict sequential separation of elements
The courts must return to the traditional sequential determination of liability.[17] The reasonable person test should be strictly confined to fault (negligence). Wrongfulness should remain rooted in the boni mores and constitutional values, focusing on whether a right was infringed, rather than the reasonableness of the defendant’s conduct or the reasonableness of imposing liability. By keeping the reasonable person test out of the wrongfulness inquiry, wrongfulness remains a distinct safety value.
- Constitutional and Policy Justification
The proposed solutions align with the transformative spirit of the Constitution.[18] Assessing liability based on a person’s actual capacity to choose and act is consistent with the right to human dignity. A purely objective standard that punishes those who are physically or intellectually capable of meeting it is preposterous and fails to treat citizens as autonomous moral agents.
Furthermore, in a country where crime and violence are endemic, the reasonable person must be allowed to exhibit human frailties, such as fear and nervousness.[19] A contextualised standard recognises that the average South African lives in a state of heightened vulnerability, and their conduct in a crisis should be judged against that reality, not a first-world ideal.
- Conclusion
The reasonable person test is a valuable heuristic but is often a fictional standard that produces fictional results. By contextualising the standard, reinstating a developmental test for children, and enforcing a strict separation between wrongfulness and fault, the South African legal system can evolve into a more just and constitutionally compliant framework. Ultimately, the law should not seek a perfect person, but a reasonable one who is recognisable human and firmly rooted in the complex, diverse, and often harsh realities of South African life.
Bibliography
Books
J Neethling & JM Potgieter, Law of Delict, 8th ed. 2020.
S V Hoctor (eds.) (original by CR Snyman), Snyman’s Criminal Law, 7th ed. 2020.
PJ Schwikkard & TB Mosaka, Principles of Evidence, 5th ed. 2023.
Case Law
Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA).
Jones NO v Santam Bpk 1965 2 SA 542 (A).
Le Roux v Dey 2011 3 SA 274 (CC).
S v Van As 1976 2 SA 921 (A).
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA).
Weber v Santam Versekeringsmaatskappy Bpk 1983 1 SA 381 (A).
Legislation
Constitution of the Republic of South Africa, 1996.
[1] Neethling & Potgieter, Law of Delict, 8th edition, 2020. 164, Hoctor, Snyman’s Criminal Law, 7th edition, 2020. 183.
[2] Neethling & Potgieter, Law of Delict. 169.
[3] Neethling & Potgieter, Law of Delict. 165.
[4] Neethling & Potgieter, Law of Delict. 170.
[5] Hoctor, Snyman’s Criminal Law. 185.
[6] 1976 2 SA 921 (A).
[7] Rumpff CJ declared, “He [i.e., the diligent paterfamilias] is regarded as “objective” in the application of the law, but essentially seems to be assessed as both “objective” and “subjective” because he represents a particular group or type of people who are in the same circumstances as him, with the same knowledge capacity.” (translated from Afrikaans).
[8] Hoctor, Snyman’s Criminal Law. 185., Schwikkard & Mosaka, Principles of Evidence, 5th edition, 2023. 9, 10 & 572.
[9] 1965 2 SA 542 (A).
[10] 1983 1 SA 381 (A).
[11] Neethling & Potgieter, Law of Delict. 171.
[12] The following two aspects are noteworthy: firstly, it would seem that the earlier test of the reasonable child is more acceptable than that of the reasonable person, because a child, even though he may be fully accountable, cannot realistically be measured against an adult standard. Secondly, it is clear that the court in Jones placed the cart before the horse by first inquiring into fault and then into accountability. Logically, one must first determine whether a person is accountable before there can be any question of fault.
[13] In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 1 SA 461 (SCA), the SCA has been taking a new direction (especially in respect of pure economic loss). In that judgment, Harms J declared that, “conduct is wrongful if public policy considerations demand that in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant”. According to Nugent JA in Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA), this test is a recent formulation of one variation of the general test of wrongfulness in our law and entails that wrongfulness is basically concerned with “the reasonableness of imposing liability on the defendant”, or “whether, in the circumstances, the law should recognise an action for the recovery of loss caused negligently”, or with the question, if the defendant had been negligent, of whether “the law [should] impose on him liability for such negligence”. The test was obiter formulated as follows by Brand AJ in Le Roux v Dey 2011 3 SA 274 (CC).
[14] Neethling & Potgieter, Law of Delict. 96.
[15] Neethling & Potgieter, Law of Delict. 108.
[16] Hoctor, Snyman’s Criminal Law. 41.
[17] (1) Conduct, (2) Wrongfulness, (3) Capacity, (4) Fault, and (5) Causation.
[18] Section 39(2) of the Constitution of the Republic of South Africa, 1996 provides that when interpreting legislation and developing common law or customary law, courts, tribunals, or forums must promote the spirit, purport, and objects of the Bill of Rights.
[19] Neethling & Potgieter, Law of Delict. 170.
