Distinguishing between intention and negligence in South African criminal law

Abstract

This study presents an account of mens rea as a culpability requirement. Both intention and negligence are forms of mens rea recognised in terms of the South African criminal law. They are both endowed with distinct principles but they have a similar role which is to prove the legal blameworthiness of an accused. Sometimes this distinction might become blurred and may seem to overlap. Courts are sometimes faced with the difficulty of defining and distinguishing between intention and negligence. This study examines the resulting legal literature with regards to the challenges accounting for the courts’ difficulties in distinguishing between these forms of mens rea. It then looks at the relevant case law in order to construct a defensible account of these forms of mens rea in explaining their distinctive features. Further, the study considers a comparative study to illuminate understanding in this regard.