oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : steeds meningsverskil oor die deliktuele-nalatigheid-toets vir onderwysers : regte
Still difference of opinion on the delictual negligence test for teachers
From Hawekwa it appears that there is still no unanimity in the supreme court of appeal about the delictual negligence test for teachers. Whereas the majority of the court held that the reasonable teacher is the appropriate test, the minority was of the opinion that the test is that of a reasonable parent in relation to his or her own children. Since these two tests led to divergent results in the present case, the formulation and application of the negligence test for teachers is not merely a theoretical matter but may have important practical implications. This discussion favours the reasonable teachertest since it conforms with the generally accepted negligence test of the reasonable person in the circumstances as formulated authoritatively by the appellate division in Kruger v Coetzee and applied in many cases involving the conduct of teachers. The reasonable teacher test is also consistent with the reasonable expert approach as generally applied in cases involving the negligence of experts. On the other hand, the authority relied upon in the minority decision for the reasonable parent test for teachers is not convincing, and, in some respects, interpreted incorrectly. In addition, the minority decision's reliance on certain English law authorities can no longer be accepted unconditionally, since recent English decisions appear increasingly to correspond more to the ordinary reasonable person test than to the reasonable parent test as formulated in England during the 19th century. It is trusted that the supreme court of appeal will express itself unequivocally in favour of the reasonable teacher test at the first opportunity.
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