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CRIM LAW NOTES[1]

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CRIMINAL LAW
(LAWS 241/432)
By
Sabelo Gumedze
Lecturer, University of
the Witwatersrand
www.law.wits.ac.za
GROUNDS FOR JUSTIFICATION
Grounds for justification (defences) may either
Exclude mens rea or
Exclude the unlawfulness of the actus
The general rule is that an act is punishable if it is unlawful
If the act is lawful, then, the accused will escape liability i.e. it will be a ground for
justification
Grounds for justification may be as follows:-
Private defence
Necessity
Duress
Compulsion
Impossibility and
Consent
Private Defence
A person who is the victim of an unlawful attack of his/her person, property or other
recognized legal interest may resort to force to repel such attack
Any harm or damage inflicted upon an aggressor in the course of such private defence is not
unlawful
Generally, criminal law
Prohibits individuals from resorting to force of violence in repelling attacks
Does not encourage self-help and private vengeance or retaliation
Only allows the State to provide protection to individuals
However, sometimes the State is not readily available to provide such protection to
individuals
Thus, the law does allow individuals to resort to private defence within acceptable limits
This is an inherent individual’s right
Private Defence
The law only allows a private defence where
The citizen’s interests are already under an unlawful attack and
The unlawful attack can be repelled only by the immediate use of force
There exist two (often conflicting) conceptual arguments that shape the law’s recognition of
resorting to private defence
One: Private defence involves a choice between two evils, and the lesser evil must be
preferred
The two evils are:-
(1) The harm threatened by an attack upon the interest of a citizen and
(2) The harm done to some legal interests of the attacker (in the course of repelling the attack
The defender should not inflict greater harm than that threatened by the initial attack if
the harm is greater, then, the defence is unjustified
This argument also advocates that the victim should retreat or flee the attack before
resorting to deadly force as this is a lesser evil
E.g. An unarmed attacker cannot be killed for stealing a mobile phone
Non-deadly force is permitted in this regard
Private Defence

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Two: Every individual is entitled to protect his/her legal interests and is under no obligation
to abandon or surrender in order to avoid inflicting harm on someone
The person who initiates the attack is the architect of the injury that he then subsequently
suffers
The deadly force in repelling the attack is not limited to the defence of life or property
Previously, an attacker was said to have forfeited his rights (e.g. the right to life)
This justified the unlimited reaction of his/her victim
In the contemporary, the notion of proportionality between the attack and the defence is
crucial (i.e. the principle of welfare)
This requires ‘a certain level of co-operation and mutual assistance between citizens’
The notion of proportionality introduces another argument that killing in defence of property
is unjustified
Private Defence
Snyman argues that there are two justifications for private defence, namely:-
An individual has a right to defend him/herself (Protection theory)
An individual has a right to not only defend/protect him/herself but also the legal order as a
whole (Upholding of Justice theory)
Private defence is all about
How and to what extent an individual can resort to self-help in reacting to an attack to his
person or property
Private defence should not be confused with retaliation
According to Roman-Dutch writers,
Private defence was only permitted to certain crimes like homicide, assault, theft and
malicious damage to property
Elements of Private Defence
Private defence entails an extra-ordinary remedy which involves the infliction of hurt, harm
or injury upon an individual (i.e. the attacker)
While the infliction of harm attracts criminal liability, in a case of private defence, an
individual may escape liability by showing that
The resort to private defence conformed with the social and legal norms that regulate the
use of self-help
The resort to private defence proved to be necessary in the circumstances
The resort to private defence was appropriate to the danger or imminent danger (i.e. it was
proportional)
Conditions Relating to the Attack
One: There must be an attack
The attack must be actual (having commenced) or imminent (looming)
The attack normally involves a positive act
The attack must not have been completed (retaliation is not permitted)
Two: The attack must be upon a legally protected interest
The interest must be protected by the law
Not all legal interests can be recognised as subjects of private defence
A person is entitled to protect his/her ‘life and limb’ by private defence
Thus, a deadly force is justified when the human life is threatened
Private defence is also justified in order to protect property
The right to private defence also extends to personal freedom, sexual integrity, chastity and
dignity
Conditions Relating to the Attack
The interest may also be that of a third party
Private defence is only permitted where there is a relationship between that defender and the
third party (such as a spouse, parent or child)

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CRIMINAL (LAWS 241/432) By Sabelo Gumedze Lecturer, University of the Witwatersrand www.law.wits.ac.za LAW GROUNDS FOR JUSTIFICATION •Grounds for justification (defences) may either –Exclude mens rea or –Exclude the unlawfulness of the actus •The general rule is that an act is punishable if it is unlawful –If the act is lawful, then, the accused will escape liability i.e. it will be a ground for justification •Grounds for justification may be as follows:–Private defence –Necessity –Duress –Compulsion –Impossibility and –Consent Private Defence •A person who is the victim of an unlawful attack of his/her person, property or other recognized legal interest may resort to force to repel such attack •Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful •Generally, criminal law –Prohibits individuals from resorting to force of violence in repelling attacks –Does not encourage self-help and private vengeance or retaliation –Only allows the State to provide protection to individuals •However, sometimes the State is not readily available to provide such protection to individuals •Thus, the law does allow individuals to resort to private defence within acceptable limits –This is an inherent individual’s right Private Defence •The law only allows a private defence where –The citizen’s interests are already under an unlawful attack and –The unlawful attack can be repelled only by the imm ...
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