Professor Franaaz Khan presents at TEDx at the University of Johannesburg. (Photo: Supplied) 
Every April, the world turns blue for Autism Awareness Month. But for many families, awareness is not enough. It is the daily reality of living in a world designed for minds that think, feel and react differently. As a legal scholar and a mother to an autistic child, I have learnt that exclusion often hides behind polite neutrality. The law, too, wears this mask. It claims to treat everyone the same, yet in doing so it can quietly discriminate against those who do not fit the mould of the so-called reasonable person.
The illusion of neutrality
In South Africa’s law of delict, our version of what other countries call tort law, the “reasonable person” is the measure used to decide whether someone was negligent. If you cause harm, the court asks: would a reasonable person, in your position, have foreseen the risk and acted differently?
At first glance this seems fair. But who is this “reasonable” person? What does reasonableness really mean? In practice, it means behaving and thinking like the majority: reading social cues in familiar ways, responding to danger as most people would, and showing awareness of consequences that seem “obvious” to most. The problem is that this invisible standard is built around neurotypical behaviour, the patterns of perception and reaction that dominate society.
For a person with autism, that standard can be impossible to meet. Autistic individuals often interpret language literally, may miss subtle social signals, or respond differently to overwhelming sensory input. Their actions may appear “unreasonable” only because they process the world through another lens. Yet under our current law, their conduct is judged by neurotypical expectations.
Difference is not deficiency
Autism is not a mental illness, nor is it a lack of understanding of right and wrong. Most autistic people have full legal capacity – they can appreciate when something is unlawful and act accordingly. What differs is how they interpret and respond to situations. When the law refuses to see that difference, it risks punishing people for being who they are.
This confusion between difference and deficiency is not just theoretical. In everyday life, neurodivergent people are misunderstood constantly. A child’s repetitive movements are mistaken for misbehaviour, or an adult’s lack of eye contact is read as dishonesty. If these everyday misreadings seep into our courts, justice itself becomes distorted.
A constitutional blind spot
Our Constitution promises dignity, equality and fairness for all. Section 9 guarantees equality, section 10 affirms human dignity, and section 39(2) instructs courts to develop the common law in line with the Bill of Rights. In Carmichele v Minister of Safety and Security, the Constitutional Court reminded us that private law, including the law of delict, cannot stand apart from constitutional values. Yet the “reasonable person” test has remained frozen in time, untouched by the transformation that has reshaped so many other areas of law. It still assumes that all people perceive the world the same way. That is not only outdated; it is unconstitutional.
Equality does not always mean treating everyone identically. Sometimes it means adapting a rule so that everyone is judged fairly. When a pupil was disciplined for wearing a nose stud in the Pillay case, the court held that a neutral rule can still discriminate if it ignores difference. The same principle applies here: a uniform standard of reasonableness can indirectly exclude neurodivergent people.
Lessons from abroad
Other countries have begun to confront this tension, though progress remains uneven. The UK’s Equality Act 2010 recognises autism as a disability and requires “reasonable adjustments” in workplaces and schools. Yet in its tort law, the “reasonable person” remains fixed in neurotypical terms. Canada has gone further in embedding equality within its Charter of Rights and Freedoms. Its courts acknowledge that substantive equality demands accommodation of difference, but even there, private law has yet to catch up. The lesson is clear: legislative recognition of neurodiversity is not enough if the courts still rely on an outdated cognitive template.
South Africa, with its transformative Constitution and its history of developing the common law to reflect social justice, has both the mandate and the moral responsibility to lead the way.
A reasonable neurodivergent person
What would reform look like? It begins with a simple question: what would a reasonable person with the cognitive profile of the defendant have foreseen and done in the circumstances?
This idea does not excuse harmful behaviour. It simply shifts the lens of assessment to one that accounts for cognitive reality. Our courts already adapt the standard of care in other contexts: children are judged by the standard of a reasonable child of similar age; professionals by that of a competent practitioner in their field. Recognising a “reasonable neurodivergent person” would extend that flexibility to an area long overlooked.
Expert testimony from psychologists or neurodevelopmental specialists could assist courts in understanding how sensory differences, communication styles or social processing affect a person’s behaviour. The aim is not to create endless categories of reasonableness, but to allow space for fairness where cognition genuinely alters perception.
Justice through inclusion
Critics worry that such reform would erode legal certainty. But the law has always evolved through context. Holding a neurodivergent person to a neurotypical standard is like asking a person using a wheelchair to climb stairs because “everyone else can”. Equality sometimes requires adaptation, not uniformity. Recognising cognitive diversity within the law would reaffirm our constitutional values of dignity and equality. It would also reflect a broader ethical truth: justice is not sameness; justice is fairness. The measure of a just society is not how it treats the majority, but how it protects those who experience the world differently.
Seeing difference as justice
In the end, this conversation is not about lowering standards but about seeing people fully. Our legal system prides itself on objectivity, yet true objectivity requires understanding all human realities including the neurodivergent mind. Rewriting reasonableness to recognise cognitive difference would not weaken the law of delict; it would strengthen it, aligning it with the Constitution’s transformative promise. South Africa has often been a moral leader in human rights. We dismantled apartheid’s hierarchies and reimagined equality in gender, race and culture. The next frontier is the mind, ensuring that the law reflects the beautiful diversity of how humans think, feel and connect. To do nothing is to continue a quiet injustice: judging autistic and neurodivergent people by standards they were never meant to meet. The time has come to rewrite reasonableness not to excuse harm, but to recognise humanity in all its forms. DM
Franaaz Khan is an associate professor and acting head of department: private law at the University of Johannesburg.
This argument was presented at TEDx University of Johannesburg on 8 October 2025, and a full academic paper on the topic has been submitted for peer-review publication. The hope is that public dialogue, not just in courts and classrooms but in everyday conversations, will move us closer to a legal system that sees difference not as a flaw, but as part of our shared humanity.