After a recent programme on Carte Blanche about home invasions and what the law says about defending yourself and family, there still seems to be confusion.
The Record therefore asked Senior State Advocate, Deon van Wyk to clarify the issues. He has sent us the following statement, entitled ‘Law in respect of private defence, commonly referred to as self defence’:
“1. A person acts in private defence when he/ she uses force to repel an unlawful attack which has commenced, or is imminently threatening, upon his/ her or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided that the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack. In such circumstances the conduct of the act is lawful.
Requirements of the attack
- The requirements of the attack can be noted as follows:
2.1 The attack must be unlawful;
2.2 The attack must be directed at an interest which legally deserves to be protected;
2.3 The attack must be imminent but not yet completed. In this regard it is to be noted that the defensive attack may not be lodged based upon a mere expectation that the attacker may lodge an attack in the future. Private defence is not a means of exercising vengeance, neither is it a form of punishment. For this reason an attack by the ‘defender’ would be an unlawful act if the ‘attacker’s’ attack is already something of the past.
Requirements of the defensive attack
3 The requirements of the defensive attack can be listed as follows:
3.1 It must be directed at the attacker;
3.2 The defensive act must be necessary in order to protect the interest threatened. The execution of the defensive act must be the only way in which the attacked party can avert the threat to his/ her rights and interests. Therefore, no person is allowed to take the law into his/ her own hands. This requirement directly speaks to the question as to whether there is a duty to flee. It is submitted to be a trite principle of law that the ‘defender’ need not to flee in the event where he/ she can ward off the attack by application of non-lethal force. It would also not be expected of the ‘defender’ to flee where circumstances are such that fleeing would expose the ‘defender’ to possible death.
3.3 There must be a reasonable relationship between the attack and the defensive act. This does not mean that there must be a proportional relationship between the nature of the interest threatened and the nature of the interests impaired. Similarly it is not required that there is proportionality between the weapons used by the attacker and the ‘defender’. No precise proportional relationship between the value and extent of the injury inflicted or threatened to be inflicted by the attacker and that by the ‘defending’ party is required. This requirement is to be established on the facts of the case and not the principle of law.
3.4 It must be noted that the application of deadly force in respect of damage to a motor gate, theft of property in the absence of an attack or imminent attack on the victim will exclude any reliance on private defence.
3.5 The attacked person must be aware of the fact that he/ she is acting in private defence.
- The test of private defence is submitted to be objective in nature.
Exceeding the limits of private defence
- If the ‘defender’ exceeds the limits of private defence by causing more harm or injury to the attacker than is justified by the attack, the ‘defender’ acts unlawfully. He/ she then becomes the attacker. The test to be applied when the limits of private defence are exceeded is the ordinary test for culpability for the crime charged, to wit murder and attempted murder as alleged in casu [in the case in question]. The tests can be articulated as follows: “If X (the party who was originally attacked) is aware of the fact that his conduct is unlawful (because it exceeds the bounds of private defence) and that it will result in Y’s death, or if he subjectively foresees this possibility and reconciles himself to it, he acts with dolus [intention accompanied by awareness of unlawfulness] and is guilty of murder.
It is submitted to be trite that ‘putative private defence’ does not constitute a ground of justification (legal defence). It, if proved to have existed, affects the element of intent. For this reason this topic will be dealt with under the element of intent.
Putative private defence
- As suggested supra [above], putative private defence aims at circumstances where the perpetrator of an unlawful act is inter alia [among others]under the mistaken belief that his/ her life is in danger when lodging a defensive attack. As the objective test will exclude private defence, the subjective test that must be applied renders this scenario to be decided within the ambit of culpability.
As also submitted supra [above], in the absence of direct evidence, the Court is to rely on the facts and inferential reasoning in order to establish if the alleged belief of an accused that his/ her life was threatened is to be accepted as reasonably possibly true”.
Van Wyk has offered to answer any questions surrounding the subject. Readers can send their questions to email@example.com or add them below the article on our Facebook page.
This article was first posted by roodepoortrecord.co.za