CRIMINAL (LAWS 241/432) By Sabelo Gumedze Lecturer, University of the Witwatersrand 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 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 1 Private Defence – 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 • life) Previously, an attacker was said to have forfeited his rights (e.g. the right to 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 att


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