Topic 6.1

Question 1

How is criminal liabilty disproven?

Answer 1

Criminal liability can be disproved through a ground of justification, which will negate unlawfulness and is established through an evidentiary burden on a balance of probabilities (Triket).

Question 2

Define Private defence

Answer 2

Private defence relates to a person who is a victim of an unlawful attack upon their legally protected interests, which has commenced or is imminent, may resort to force to repel such attack as long as their defensive steps are directed at the attacker and are both reasonable and necessary to avert harm. (Engelbrecht)

Question 3

How is the test for PD determined?

Answer 3

The test for Private defence must be based on objective factors used to make inferences, based on the LCC, from the perspective of an independent bystander (Mugwena)

Question 4

What is the reqirment of an attack?

Answer 4

The requirements of the attack:
- There must be an unlawful attack
- The attack must be directed at a legally protected interest
- The attack must be imminent but not yet completed

Question 5

What are the requirments of a defence?

Answer 5

The requirement of the defence:
- The defensive act must be directed at the attacker
- The defensive act must be necessary to avert the harm
- The Means Used to Avert the Attack Must Be Reasonable

Question 6

What is an unlawful attack?

Answer 6

An Unlawful attack is an attack not sanctioned by law. It must be objectively clear that you are being attacked on reasonable grounds that are not subjective to one’s mind. (Mugwena)

Question 7

What was held in R v Patal about an unawful attack?

Answer 7

• Fear alone is not sufficient; there must be an unlawful attack upon the accused as perceived from objective evidence (Patel)
• The court should not be an armchair critic in their analysis and their evaluation of each factor should bare in mind that the accused in acting in an emergency situation (Patal).

Question 8

What was held in Moloy?

Answer 8

If the police officer is not authorised by law to perform a particular act, or if she exceeds the limits of her authority, she may be resisted. (Moloy)

Question 9

What is putative private defence?

Answer 9

If you subjectively believe that you or someone else is under attack but objectively speaking, they are not, that is Putative Private Defence (which negates fault not unlawfulness) to be covered later. (Pistorius)

Question 10

What does it men that an attack must be towrards a legally protected interest?

Answer 10

Any” interest protected by the legal order (Constitution / Bill of Rights) is worthy of being protected and this may include protection of life and limb (Govender/Patel), personality interests (Van Vuuren), property interests (Van Wyk, Mogoholwane) and the interests of another (Patel)

Question 11

What does Patal state about a legally pritected intrest?

Answer 11

The protection of life and limb, including the protection of another, is a legally protected interest. (Patal)

Question 12

What happened in Van Vurren?

Answer 12

In Van Vurren, there was a heated conversation between two parents at a school. The accused grabbed the victim in response to abusive language used against his wife, and the victim went to the police station and laid assault charges. It was held that dignity/personality interests, including those of a third party, are legally protected interests which can be protected via private defence, but this would be a situation requiring minor force to de-escalate the situation.

Question 13

What happened in S v Van Wyk?

Answer 13

In Ex parte Minister van Justice: S v Van Wyk, the accused had a shop in a bad part of town that experienced a lot of burglaries and had made various attempts to stop these burglaries, such as going to the police, but it didn’t prevent them. As a measure of last resort, he set a trap which triggered a shotgun that was aimed at leg height; the aim was to shoot any robbers; he also put a warning sign outside the door. The victim came to rob the store, and the trap was triggered; however, the bullet hit an artery and he bled to death. The state brought the question of whether a person can raise a private defence due to the injury or death of another person to protect private property. The fact that there were warning signs which acted as a ‘calling out’ as required by Stephen, that he went to the police prior to the trap and that the gun was pointed downwards, the court held that the use of lethal force was reasonable.

Question 14

What was held in S v VAn Wyk??

Answer 14

In S v Van Wyk the court held that the defence leading to injury or death to protect private property is a legally recognised interest, that the onus is on the state to prove that the attack was not reasonable, which they failed to do, and that lethal force can only be used if it is reasonable force.

Question 15

What does it mean that an attack must be imminent?

Answer 15

Imminent means about to happen, or its being threatened. Commenced means its already happening.

Question 16

What does S v Wyk state about immence?

Answer 16

In S v Van Wyk it was held that even though a trap or protective device is a pre-emptive measure, it will be allowed if it is set in such a way that it only goes off/causes harm at the point where the attack commences. The imminent requirement was fulfilled due to the warning signs and the trap was only set off once the barricades and door to the property was breached

Question 17

What does Patal state about immence?

Answer 17

In Patel, it was held that the successive blows indicate an already commenced attack, and if the next blow is possibly death, the attack has commenced.

Question 18

What happened in Stephen?

Answer 18

In Stephen, the accused heard an intruder coming through his window, and reacting to this, he grabbed a nearby knife and stabbed the intruder, killing him. He claimed his aim was to stab the intruder in the arm, but it was dark and he couldn’t see. It was held that a man may resist the invasion of their property, especially at night, and they may resort to violence (including lethal force). But that violence must be proportional to the danger AND before using lethal force in the protection of property, they must call out to their attacker first to ensure that the danger is objectively real.

Question 19

What was held in Mogolwane about immence?

Answer 19

In Mogohlwane, it was held that since theft is a continuing offence, imminence will still be present if the victim retrieves the stolen goods as part of the same res gestae (same unlawful transaction), which implies that the victim acted within minutes and the retrieval was from the original thief, they may still use private defence in defence of property but it needs to be adequate defence.

Question 20

What was held in Govender about immence?

Answer 20

In Govender, an accused may use whatever force is necessary (including lethal force)
in order to avert the harm, but once harm is averted, there is no longer an imminent
threat and no further defensive steps may be used.

Question 21

What is stated about the defensive attack being directed at the attacker?

Answer 21

They have to be directed at the person who constituted the attacker; the only exception is if there is a group of attackers.

Question 22

What does it mean for a defensive act to be necesary?

Answer 22

For a defensive act to be necessary, it must be the only means available (Van Wyk)

Question 23

What does Van Wyk state about necessary steps?

Answer 23

If an accused has taken other means/steps unsuccessfully, they have better prospects of
proving that the means used was necessary. (Van Wyk)

Question 24

What was held in Patal about necessary steps?

Answer 24

In Patal, it was held that an emergency itself can dictate what is the only means available at the time (the higher the emergency, the fewer options might exist)

Question 25

What happened in Zikalala?

Answer 25

In Zikalala, the accused was at a bar, where the deceased attacked him with a knife. The accused was able to dodge two of the blows by jumping over some benches; however, eventually, he fought back and ended up stabbing the deceased to death. The court considered whether the defence was necessary as the accused was able to dodge the blow. It was held that there is no duty to flee from an attack unless you can guarantee yourself a safe escape (there is a duty to flee if you can guarantee a safe escape).

Question 26

What does Mugwana state about necessary steps?

Answer 26

Mugwena shows that you are less likely to be obliged to flee from one’s own home which is your place of safety.

Question 27

What does Nutili state about necessary?

Answer 27

In Ntuli it was held that if you do more than is necessary (if lesser means are available to you) to defend yourself, there is a potential for liability(if the accused is bigger and stronger than the attacker) even if the victim is the initial attacker.

Question 28

What happens according to Nutili if private defence fails?

Answer 28

- If the party who was originally attacked is aware of the fact that her conduct is unlawful because it exceeds the bounds of private defence and that it will result in Y’s death, or if she subjectively foresees this possibility and reconciles herself to it, she acts with dolus (intention accompanied by awareness of unlawfulness) and is guilty of murder. - If the intention to kill as explained in the previous sentence, is absent, X can nevertheless still be guilty of culpable homicide if she ought reasonably to have foreseen that she might exceed the bounds of private defence and that she might kill the aggressor. She was then negligent in respect of the death. - If, subjectively, she did not foresee the possibility of death and it can also not be said that she ought reasonably to have foreseen it, both intention and negligence in respect of death are absent, and she is not guilty of either murder or culpable homicide.

Question 29

What happened in S v T?

Answer 29

In S v T, the accused was a minor who had been bullied at school by the deceased as he was a smaller, sensitive and younger than the average boy in his class. On the day, the deceased and a group came to his house, calling that he should come fight, the accused refused but the deceased entered his house and fetched him. The accused took out a pistol and shot the deceased. The court held that the attacker cannot be the what the court uses to establish the mode of weaponry (defence) that is necessary in the circumstances, this needs to be established based on what is objectively possible and available. Therefore, the accused acted reasonably.

Question 30

What does S v T state about necessary steps?

Answer 30

In S v T, it was held that what is necessary should be determined on the totality of factors, including what is operating on the mind of the victim at the time. (It is a balance between objective factors and what is in the mind of the victim).

Question 31

What happened in Mugwena?

Answer 31

Mugwena, which is a delict case, dealt with Mugwena who was killed by police officers and the family is suing for damages. The police are attempting to claim self defense. Mugwena, a police officer in a rural town who was off duty at the time, was asleep in his hut with his wife. The area was dark and the hut had no widows. The police officers sent out to look for a suspect and they were going door to door, they met up ith an informer who told them the suspect was in the area were Mugwena was sleeping. The police officers go to Mugwenas' premises, the police officers state they announce themselves. However, the wife states they didnt but they were awoken by the loud noises and shooting outside their hut. Mugwena grabs his gun and goes to the door to see what was going on moving the gun in the direction of the noise in the dark. One of the police officers then charged the deceased from behind and a struggle ensued. The officer becomes pinned down and the deceased pointed the gun at his head. The officer then fired the gun four times at the deceased, killing him. The court held that when there is contradicting testimony, reasonable inferences based on facts will be drawn. The court held that the deceased was acting reasonably, as it was more probable that the officers did not announce themselves and the deceased showed constraint by not firing his weapon during the attack. The true inquiry into the reasonableness of the police officer stands on how a reasonable person in the position of the accused would have acted, and based on the objective facts the officer's life wasn't in danger and therefore there was no private defence.

Question 32

What does Mugwana state about necessary steps?

Answer 32

In Mugwena, it was held that the law insists on strict limits when taking life so when killing in self-defence, it is preferable that the accused can show that their own life was in danger in order to show the actions are necessary.

Question 33

What does Patal state about resaonable steps?

Answer 33

In Patel it is held that it is reasonable to use lethal force if a mortal blow is imminent to the victim

Question 34

What does Van Wyk state about reasonable steps?

Answer 34

In Van Wyk it was held that when protecting only property, the least lethal force would be the more reasonable but there is no other way the only way becomes the most reasonable way.

Question 35

What does S v T state reonable steps?

Answer 35

In S v T, it was held that the right to physical integrity is not always subordinate to the right to life and an accused may use lethal force to protect against being maimed or seriously injured (it depends on the facts of the case)

Question 36

What does Trainor state about the factors of reaonableness?

Answer 36

Trainor states that reasonableness is determined by a totality of factors, including: - Strength of the parties - Sex and age (gender) - Means available at the disposal of the victim - Value of the interest protected - Value of the threat - Persistence of the attack (Trainor)

Question 37

What does Mugwena state about reasonableness?

Answer 37

In Mugwena it was held that killing in self-defence will only be reasonable (and thus justified) if the objective facts show that there were no reasonable alternatives available. And what is a reasonable means of defending oneself can differ based on who the victim is (determinable on a case-by-case basis)

Question 38

What does Govender state about reaonable steps?

Answer 38

In Govender it was held that an accused may use whatever force is necessary (including lethal force) in order to avert harm, but once harm is averted, there is no longer an imminent threat and no further defensive steps may be used and additional force amounts to exceeding the bounds of defence.

Question 39

What does S v Trainor about reasonbale steps?

Answer 39

S v Trainor held that all reliable evidence from the complainant and the accused must be weighed against independently verifiable evidence (medical evidence, other corroborative evidence), and if you use more injury than is necessary, the accused becomes the attacker. When determining reasonableness, there must a connection between the attack and the defensive steps in light of the particular circumstances.

Question 40

Wht does Ntuli state about reaonableness?

Answer 40

In Ntuli, it was held that if an accused knowingly exceeds the bounds of defence (subjectively foresee, a real possibility and you reconcile to that possibility), you can be found guilty of murder. If an accused negligently exceeds the bounds of defence (a reasonable person would have realised that they are exceeding the bounds) then the accused will be guilty of CH.

Question 41

What does Engelbrecht state about reaonableness?

Answer 41

Engelbrecht held that in a case of prolonged abuse, if you can show that this abuse was a cycle such that the next attack was inevitable, then the court would extend the imminent requirement.

Question 42

What does Engelbrecht hold in the situations of prolonged abuse, the following additional factors are relevant in determining whether the defensive steps were reasonable to avert the harm?

Answer 42

- the parties respective ages; the relative strengths, gender socialisation and experiences; - the nature duration and development of their relationship; - the content of their relationship, including power relations on an economic, sexual, social, familial, employment and socio-religious level; - the nature, the extent, duration, persistence of the abuse; - the purpose of and achievements of the abuser, the impact upon the body, mind, heart, spirit of the victim; the effect on others who are aware of or implicated in the abuse; the extent to which it is possible for State- legislated, formal institutional, informal personal bodies and individuals to intervene to terminate the abuse; - the extent to which it is possible for the abused victim to access and utilise any of the above channels in the event that they previously failed

Question 43

What was held in Steyn about reaonableness?

Answer 43

It was held that the court must take into account the facts of the case and that physical danger was sufficient to prove that it was necessary in these circumstances to act in the way she did.