Wrongfulness - Private Defence

Question 1

What is the definition of wrongfulness?

Answer 1

• Wrongfulness lies in the infringement of legally protected interest in a legally reprehensible way.
• A two-legged test is applied
  1) was a legally recognized individuals interest infringed (was there a harmful result?)
  2) was the causing of harm done in a legally reprehensible/unreasonable manner (conduct which failed to recognize a legal duty-act against a legal norm/boni mores)

Question 2

What elements must be present in order to have an act wrongful?

Answer 2

Consequence= the factual infringement of an individuals interest.

Question 3

The Pinchin v Santam case states?

Answer 3

• an act and it’s consequence are always separated by time and space.
• there will be no labelled as lawful or unlawful only with reference to its consequences, then seemingly problemtic.

Question 4

What are the act and it’s consequences that are separated by time and space in terms of a Nasciturus fiction?

Answer 4

• an unborn child is deemed born if doing so is in its interest
• according to Hiemstra J, who held a child had to have an action in principle.
• and Joubert who disagrees strong by stating that the act and it’s consequences are separate both in time and space
• and it’s not necessary to have relied on the nasciturus fiction to find in principle that the child would have had an action

Question 5

What approach did the Road Accident fund v Mtati?

Answer 5

The SCA followed Joubert’s approach by pointing out that the nasciturus fiction does not offer a solution in certain instances and may lead to unfair results.

Question 6

What are the legal convictions of a community?

Answer 6

The general norm or criterion to be employed in determining whether a particular infringement of interest is unlawful is the legal convictions of the community: the boni mores.
- the yardstick for general reasonableness

Question 7

Name 3 factors that determine reasonableness?

Answer 7

1. The value of the interest
2. The character of the interest
3. The means of the defence

Question 8

Case law: Van Wyk v Minister van Polisie

Answer 8

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Question 9

Name:

Answer 9

Private defense

Question 10

Name:

Answer 10

Private defence

Question 11

What is private defence

Answer 11

When a defendant directs action against another person In order to protect one’s interest

Question 12

Requirements for the defence

Answer 12

A.defence directed against the aggressor
You can only defend yourself from someone who’s directing his/her actions against you not another third party

B.Defence must be necessary
-The act of defence must amount to reasonableness alternative to protect the legally recognised interest

C.Defender must be aware that she is acting in self defence