Fault: The element of fault Flashcards
I) Introduce the element of fault ii) Distinguish between intention, negligence and accountability ii) Discuss accountability and the factors that could affect accountability
By Kgosi Sebelebele
ELEMENT OF FAULT
What is fault?
Fault (culpa in the wide sense) is a general requirement for delictual liability.
It refers to the legal blameworthiness or reprehensible state of mind or conduct of someone who has acted wrongfully.
Name two forms of fault
- Intention (dolus)
2. Negligence (culpa in the narrow sense)
Why is fault a subjective element?
It’s concerned with the person’s attitude or disposition.
Fault is referred to as the subjective element of a delict, while Wrongfulness is usually the objective element of delict.
Yet - the test for negligence is objective in nature.
Regarding the element of fault, what must be established BEFORE we determine whether defendant’s wrongful conduct is BLAMEWORTHY?
Accountability - that the defendant’s mental ability is such that intent or negligence may be imputed to him.
What is accountability?
Whether the person has the mental capacity to distinguish between RIGHT and WRONG
&
ACT in accordance with such UNDERSTANDING,
What is culpa capax
Having mental capacity to distinguish between right and wrong
What is culpa incapax?
Lacking mental capacity to distinguish between right and wrong &
act in accordance with such understanding
Thus - NOT ACCOUNTABLE.
Name 4 factors that could lead to defendant being culpa incapax:
Youth
Mentally ill
Intoxication
Provocation
Explain the stipulations in the Child Justice Act 75 of 2008, as it amended the common law and accountability of children:
Distinguish between Child from:
0-9 irrebuttable presumption (culpa incapax)
10-14 rebuttable presumption (culpa incapax)
14-18 are considered to be adults for purpose of accountability (presumed to be culpa capax)
Each case judged on its own merits
Is a mentally ill person accountable if he cannot distinguish between right and wrong or he cannot act in accordance with such understanding?
No, he is culpa incapax
- There is no question of fault
- Thus no delictual liability
Can a person who is intoxicated be held accountable?
A person on the influence of alcohol or drugs may also be regarded as culpa incapax.
But sometimes a situation may exist where a person’s act of consumption may be of a negligent nature. Person drank while he was still accountable, knowing he needs to drive his vehicle.
Then person may be held responsible and accountable.
Explain when provocation may lead to a person being culpa incapax:
When it’s used as ground of justification.
Where a person loses his temper and becomes passionately angry, it is said he lacks accountability and will not be blamed for his intentional conduct
BUT more often, provocation negates the element of wrongfulness, rather than fault.
What needs to be established AFTER establishing that defendant was accountable?
It must be determined whether defendant acted intentionally or negligently.
