FAULT

MENTAL ABILITY TO
DISTINGUISH
BETWEEN RIGHT &
WRONG

ACCOUNTABILITY
MATURITY TO ACT IN
ACCORDANCE WITH
THAT APPRECIATION

INTENTION NEGLIGENCE

DIRECTION OF WILL

REASONABLE
PERSON TEST

CONSCIOUSNESS OF
WRONGFULNESS

REASONABLE REASONABLE
FORESEEABILITY PREVENTABILITY
Basic definition:
The legal blameworthiness of a person who acted wrongfully.

Fault is a subjective element of a delict because it is primarily

concerned with a person’s mental disposition.

Two components: -Accountability (legal capacity to be at fault)

-Culpability (Intention or Negligence)

NB: Both components have to be present for delictual liability.

General rules
 If a person is not accountable in law then they cannot be at

fault.
 In law there is a general presumption that all persons are

culpae capex (accountable) unless proven otherwise.

 The inquiry into accountability is a subjective exercise.

Assessing accountability (Weber v Santam)

Did the defendant at the time of the delict have:

1. The mental capacity to distinguish between right and wrong?
2. The maturity to act in accordance with that appreciation?
Weber v Santam & Eskom Holdings v Hendricks

When assessing the culpability of children we should be

careful of ‘placing an old head on young shoulders’

Children have the inherent weakness to act irrationally and

impulsively due to their tender age.

Although children can distinguish between right and wrong,

they will often be unable to act in accordance with that
appreciation.
The enquiry into intention is subjective.

Two-fold enquiry
1.Direction of will, and
2.Consciousness (knowledge) of wrongfulness

Three forms of intent.

Directly (dolus directus)
Indirectly (dolus indirectus)
Dolus eventualis
A defendant must also know that:
 his conduct is wrongful or
 foresee the possibility that his conduct may cause harm.

Motive (reason for committing the delict) not a stand alone

element but a persuasive consideration.

Mistake: A bona fide mistake may exclude intention but this

is decided case by case depending on the facts and
circumstances of each case.
The laws disapproval of the defendants failure to prevent harm.
 An objective enquiry: What would a reasonable person in the

same position/circumstances as the defendant have done?

NEGLIGENCE
NB: The reasonable person
(diligens paterfamilias) is
merely a concept created by the
law to have a workable
REASONABLE
objective norm for conduct PERSON
expected in society. It is NOT TEST
an actual person.

REASONABLE REASONABLE
FORESEEABILITY PREVENTABILITY
First introduced in Herschel v Mrupe but found amplification in
Kruger v Coetzee.
Test
Negligence arises if a diligens paterfamilias in the position of
the defendant:
 Had reasonable foresight of harm;

 Harm was reasonably preventable; and

 Defendants failure to take precautions to prevent harm.

NB: -Criterion in criminal law is the same used in delict.

-Varying standards for children & experts