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13CR Private Defence

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GROUNDS OF JUSTIFICATION
If all requirements for criminal liability are present, namely voluntary conduct, causation, fault, capacity and
unlawfulness are present, then an accused will be liable.
Grounds of justification refer to those factors with exclude intention, capacity, volutariness and unlawfulness and
hence aid an accused to escape liability.
Grounds of justification are defences that negate unlawfulness
Our law tests for unlawfulness in a negative way in that it assumes if conduct is prohibited it is unlawful unless
there is a ground of justification
There is a distinction between defences negating mens rea/capacity and unlawfulness:
1) Defences which negate mens rea cannot help an accused with a crime of strict liability, while defences negating
unlawfulness are available for all crimes
2) Defences which negate mens rea differ in standard (for mistake of fact if it is a dolus crime the mistake must be
genuine and material while for culpa crimes the mistake must be genuine, material and reasonable). The standard
for defences negating unlawfulness is objective
3) Unlawfulness evaluates the act whereas mens rea evaluate the individual
Unlawfulness is determined ultimately using the legal convictions of the community (Clarke v Hurst) therefore
new grounds of justification can be created as the legal convictions change over time.
Factors excluding:
Intention referred to as excuses
Unlawfulness referred to as justifications
Clarke v Hurst: Discusses the boni mores in grounds of justification development
At the common law, the state must prove all elements of a crime
Statutory crimes are different in that s49(2) of the Criminal Procedure Act deals with justifiable homicide: a
police officer can use lethal force in effecting an arrest
R v Ndhlovu At common law the state bears the onus of proof
R v Swanepoel and R v Britz In statutory crimes the accused must demonstrate the conduct was lawful
There are substantive elements in s49(2) insofar as what one has to prove.
Previously, a fleeing suspect could be shot but now police may only fire in circumstances where there is a threat
of violence, and police may use lethal force
Justifications make lawful what is unlawful, depending on the boni mores
Private Defence
Definition: A person who is the victim of an unlawful attack upon that person, property or other legal
interest worthy of protection by law, may resort to force to repel the attack
Previously private defence was generally referred to as self-defence so a person would only be
justified in protecting him/herself
However, now “private defence” encompasses defence of self, a third party and property; there must
be an interest deemed worthy of protection by law
Private defence is tested objectively (R v Hele) so it must be asked: what would a reasonable
person have done in the circumstances?
The law insists on strict limits when taking a life and it is only justified when the accused had been
unlawfully attacked and had reasonable grounds for thinking there was danger of death (S v
Mugwena)
There are two sets of requirements which make up six requirements that must be met for a person to
rely on the private defence ground of justification:
1) Requirements of the attack
2) Requirements of the defence
REQUIREMENTS OF THE ATTACK
1) Must be an unlawful, human attack
2) Must have commenced or be imminent, but not yet complete
3) The unlawful attack must be upon a legally protected interest

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1) There must be an unlawful human attack on the accused
A person may not act in private defence in response to lawful conduct
It is not necessary that the person to which the private defence is directed, is the original aggressor
Example: A slaps B, B reveals a knife to stab A so A shoots B A’s actions are justified
Private defence cannot be used against another act of private defence as the initial act is lawful
A person who mistakenly believes they are being attacked cannot rely on private defence. Whether a
person believes they are being attacked or not is an objective tests which asks whether the accused
was in fact being attacked and not what a reasonable person would have thought
If the accused acts on a mistaken belief he will have to rely on putative private defence (as long as
there is an unlawful act)
2) The attack must have commenced or be imminent, but not complete
If the attack is complete then any act by the attacked person amounts to them becoming the
aggressor and it is considered to be revenge or retaliation rather than private defence.
A person may not use force to repel an attack expected in the future
Time frame is decided on an ad hoc basis.
Fear of a future attack is not sufficient, the attack must be imminent.
Battered Woman Syndrome (BWS)
o This presents a problem in the strict definition of private defence
o This term “Battered Woman Syndrome” was invoked in a Canadian case of R v Lavelley
o In the case of this syndrome, the requirements for private defence are relaxed
o The traditional model of private defence is based on two men of equal strength and so in that sense
this syndrome as a defence is useful as it accounts for women of weaker strength
o This has been criticized but it shows that in certain circumstances one cannot act in anticipation of
an attack
o Problems:
o Women generally have other options such as leaving the house and going to shelters, calling the
police etc, hence, killing seems is unnecessary
o It leads to the syndromization of women’s experiences: due to constant abuse women cannot leave
the house and there is a notion of learned helplessness so this defence undermines the overall view
of women in society. It undermines the autonomy and integrity of women’s experiences
S v Engelbrecht where a victim has been subjected to extended periods of physical and mental
abuse and eventually retaliates, she is generally unable to argue self-defence due to lack of
imminence on the attacker’s part. Considerations of abuse are taken into account in sentencing
For defensive purposes it is better to argue that the abuse was of such an extent as to affect the
accused’s ability to appreciate the wrongfulness or to act in accordance with such appreciation
(enquire into capacity, and according to S v Wiid severe emotional stress can negate capacity)
Since the test for private defence is objective the enquiry involves the reasonable man it requires a
reasonable man to be put into the context of the abused woman and requires the court to have
regard to the abused woman’s experience and the effect of the abuse.
Where abuse is so frequent and regular such that it can be termed a pattern/cycle, then the
requirement of imminence extends to encompass abuse which is inevitable and so it is consistent
with this defence.
3) The unlawful attack must be upon a legally protected interest
Private defence may only be used against an attack on an interest recognized and protected by law
Examples: Life, property (S v Van Wyk), own or another person’s bodily integrity, dignity (R v Van
Vuuren)
There is not finite list of protected interests, it is developed on a case by case basis.
CASE: R v Patel 1959 AD
Facts: The appellant’s brother was struck on the back with a hammer by the deceased, and as he
prepared to strike the appellant’s brother again the appellant saw the hammer would hit his
brother’s head and so he used his revolver to kill the deceased.
Court: A person has the same right to use force to defend another as he would have to defend
himself, if his own life was threatened (This does not only include people with whom you have a
special relationhip). An allowance must be made for the defendant’s situation as the court does not
want to be an armchair critic. It realizes that in the heat of the moment the defendant will not
always have the opportunity to weigh up the pros and cons. It may well be that in a particular set of
facts there may be less drastic measures that the defender could have taken.

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GROUNDS OF JUSTIFICATION • • • • • 1) 2) 3) ❖ If all requirements for criminal liability are present, namely voluntary conduct, causation, fault, capacity and unlawfulness are present, then an accused will be liable. Grounds of justification refer to those factors with exclude intention, capacity, volutariness and unlawfulness and hence aid an accused to escape liability. Grounds of justification are defences that negate unlawfulness Our law tests for unlawfulness in a negative way in that it assumes if conduct is prohibited it is unlawful unless there is a ground of justification There is a distinction between defences negating mens rea/capacity and unlawfulness: Defences which negate mens rea cannot help an accused with a crime of strict liability, while defences negating unlawfulness are available for all crimes Defences which negate mens rea differ in standard (for mistake of fact if it is a dolus crime the mistake must be genuine and material while for culpa crimes the mistake must be genuine, material and reasonable). The standard for defences negating unlawfulness is objective Unlawfulness evaluates the act whereas mens rea evaluate the individual Unlawfulness is determined ultimately using the legal convictions of the community (Clarke v Hurst) therefore new grounds of justification can be created as the legal convictions change over time. Factors excluding: • Intention – referred to as excuses • Unlawfulness – referred to as justifications ➢ ? ...
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