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Learning unit 5 : Unlawfulness and grounds of justification

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Learning unit 5 – Unlawfulness
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Once it is clear that X has committed an act, which complies with the definitional elements, the next step is
to ask whether X’s act was also unlawful.

Conduct is unlawful if it conflicts with the boni mores or legal convictions of society.

Grounds of justification = situations often encountered in practice which have come to be known as easily
recognisable grounds for the exclusion of unlawfulness.

Approaches followed to determine unlawfulness :

Private law Unlawfulness rests on the infringement of a private interest protected by

law – violation of a subjective right
Public law Unlawfulness rests on the infringement of a public interest protected by
law
Public interest An interest often extends further than law is prepared to protect it – so,
any infringement of a public interest is not necessarily unlawful
Objective reasonableness This is the criterion to determine when public interest is protected by
law and when it is not
Boni mores (current social Objective reasonableness is considered as criterion for existence of
norms) unlawfulness boni mores determine content of what is reasonable

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PRIVATE DEFENCE
A person acts in private defence – and his conduct is
therefore lawful – if he uses force to repel an unlawful
attack which has already commenced, or which
immediately threatens his or somebody else’s life,
bodily integrity, property or other interest that ought
to be protected by law, provided the defensive action
is necessary to protect the threatened interest, is
directed against the attacker, and is no more harmful
than is necessary to ward off the attack.
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Requirements of attack Requirements of defence

Attack must be : Defensive action must :

1. Positive omission or 1. Be directed against attacker

commission 2. Be a conscious self-defence action
2. Unlawful 3. Essentially protect threatened interest
2 3. Threatening but not yet 4. Not be more damaging than is necessary to
completed prevent attack i.e. means used
4. Not necessarily directed
towards defender

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Question whether X’s acts fell within the limits of private defence must be
considered objectively i.e. in light of the actual facts, and not according to what X
(at the time) took the facts to be.

So, if X was ex post facto (after the facts) not in any danger, when she
‘defended’ herself against a perceived ‘attack’, she would be acting
unlawfully – PUTATIVE private defence.

NECESSITY
A person acts of necessity – and his conduct is therefore lawful – if he acts in the protection of his own or
somebody else’s life, bodily integrity, property or other legally recognised interest which is endangered and
which cannot be averted in any other way; provided that the person who relies on the necessity is not
legally compelled to endure the danger, and the interest protected by the act of defence is not out of
proportion to the interest threatened by such an act.

For a plea of necessity to succeed – immaterial whether situation of emergency is result of human action
(e.g. coercion) or chance circumstances (e.g. famine, flood).

Therefore a person acts in necessity when he can only protect his interests :

• By sacrificing the interests of another (innocent 3rd party); or

• Where he contravenes a legal provision in order to protect himself against danger.

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Private defence Necessity

Origin of situation of emergency Always stems from an unlawful May stem from either an unlawful
(and therefore human) attack human act, or from chance
circumstances e.g. natural
occurrences

Object at which act of defence is Always directed at an unlawful Directed at either the interests of
directed human attacker another innocent 3rd party or merely
amounts to a violation of a legal
provision

Z, who is
much
stronger
than X, Y threatens
grabs X’s to kill X if
hand, X does not
which is stab Z
holding a
knife, and
stabs Y 4

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Learning unit 5 – Unlawfulness
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Requirements for a plea of necessity :

1. Can be caused either by human forces / natural forces

2. Danger must have already begun or be immediately threatening

3. Danger to person, life or property can be warded off in necessity

4. Danger to one’s own person, life or property as well as to another

person or his property can be warded off in necessity
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5. Not legally compelled to endure danger

6. Perpetrator himself cannot create necessity

7. Perpetrator’s action must be only way out of distress

8. Not more harm caused than necessary

9. Sacrificed interest must not be greater than protected interest.

May a threatened person kill another to escape from the situation of emergency ?

S v Goliath

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Test to determine necessity is OBJECTIVE – question whether X’s acts fell within limits of defence of
necessity must be considered objectively i.e. in light of all actual facts, and not according to what X (at time)
took facts to be.

Question to be asked is : did X find himself in a situation of emergency when he acted ? If no such situation
– PUTATIVE necessity.

CONSENT
May, in certain circumstances, with certain crimes, render X’s otherwise unlawful conduct lawful.

Volenti non fit iniuria = no wrongdoing is committed in respect of somebody who has consented (to act
concerned).

Different effects that consent may have :

• Crimes in respect of which consent does not operate as a defence, but whose structure is such that
consent does not operate as a ground of justification, but forms part of definitional elements of crime
e.g. rape

• Crimes in respect of which consent by injured party is never recognised as a defence

e.g. mercy killing

• Crimes in respect of which consent does operate as a ground of justification

e.g. theft

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• Group of crimes in respect of which consent is sometimes regarded as a ground of justification and
sometimes not
e.g. assault

➢ Criterion to be applied to determine whether consent excludes unlawfulness is general criterion for
unlawfulness i.e. boni mores (legal convictions) of society, or public policy

➢ Situations in which consent may justify an otherwise unlawful act of assault e.g. sporting events or
medical treatment

Requirements for a valid plea of consent

Consent must be :

1. Given voluntarily

2. Given by a person who has certain mental abilities

3. Based upon knowledge of true and material facts

4. Given either expressly or tacitly

5. Given before commission of act

6. Given by complainant himself

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OFFICIAL CAPACITY
An act which would otherwise be unlawful is justified if X, by virtue of his holding a certain office, is
authorised to perform such act, provided act is performed in course of exercise of his duties

Examples

• Possession of drugs – clerk of court who controls exhibits

• Damaging or destroying an article (malicious injury to property) – pouring out contents of bottles of
alcohol which have been confiscated in terms of a court order
• Touching or searching another person inappropriately
(crimen iniuria) – searching someone at a customs post or
international airport
• Physically grabbing another person without his consent (assault)
– X (police officer) attempts to arrest Y, Y resists and runs away,
X runs after Y and tackles him to the ground

Section 49 of Criminal Procedure Act 51 of 1977

Note the following definitions in this section : 9

• ‘arrestor’ = any person authorised under this Act to arrest or to assist in arresting a suspect;

• ‘suspect’ = any person in respect of whom an arrestor has (or had) a reasonable suspicion that such
person is committing or has committed an offence

• ‘deadly force’ = force that is likely to cause serious bodily harm or death and includes, but is not
limited to, shooting at a suspect with a firearm

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If an arrestor attempts to arrest a suspect and suspect resists attempt,

or flees, or resists attempt and flees, when it is clear that an attempt to
arrest him is being made, and suspect cannot be arrested without use of
force, arrestor may, in order to effect arrest, use such force as may be
reasonably necessary and proportional in circumstances to overcome
resistance or to prevent suspect from fleeing.

It must be certain that infringement of body is really necessary – there

must be no other (reasonable) possibility open to person effecting arrest
than using force. If possible in circumstances, he must 1st use non-
violent means to stop suspect e.g. an oral warning or a warning shot in
ground. 10

Infringement of body must not take place in a manner that is more harmful than reasonably necessary to
subdue suspect e.g. it is not necessary to shoot suspect in leg if he can be caught relatively easily by hand

Arrestor is only in particular circumstances justified in using deadly force i.e. force that is intended or is 40

likely to cause death or grievous bodily harm to a suspect.

If arrestor believes on reasonable grounds that :

• Force is immediately necessary for purpose of protecting arrestor, any person lawfully assisting
arrestor or any other person from imminent or future death or grievous bodily harm;

• There is a substantial risk that suspect will cause imminent or future death or grievous bodily harm if
arrest is delayed; or

• Offence for which arrest is sought is in progress and is of a forcible and serious nature and involves
use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.

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It appears that four requirements must be met before an arrestor can use lethal force :

1. Arrestor must on reasonable grounds suspect

2. That lethal force is immediately necessary 11

3. To protect any person’s life or body

4. Against conduct of a suspect that is immediately

threatening or will happen in future.

Nevertheless, little doubt can exist that a person effecting

an arrest can only use lethal force if he is confronted with
a situation similar to private defence, perhaps with an
exception if he acts to prevent future death or serious
bodily injury.

OBEDIENCE TO ORDERS
May an otherwise unlawful act be justified by fact that person, when committing act, was merely obeying
order of somebody else to whom he was subordinate ?

Section 199(6) of Constitution = no member of any security service may obey a manifestly illegal order

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General requirements for defence to succeed :

1. Order must emanate from a person lawfully placed in authority

over X

2. X must have been under a duty to obey the order

3. Order must not be manifestly unlawful

4. X must have done no more harm than is necessary to carry out 12

the order

RIGHT OF CHASTISEMENT

Parents have right to punish their children with

moderate and reasonable corporal punishment to
maintain authority and in interest of child’s education

Section 10 of South African Schools Act 84 of 1996 =

no person may administer corporal punishment at a
school to a learner and any person who contravenes
this provision is guilty of an offence and liable on
conviction to a sentence which could be imposed for
assault.
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Common law : chastisement of a child by a parent is justified only if it is moderate and reasonable.

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Question of what is moderate and reasonable depends on circumstances of each case :

• Age of child
• Gender
• Build and health
• Nature of transgression
• Nature and extent of punishment

October 2017 : JHB High Court held that the “reasonable

chastisement” of a child by a parent is no longer a valid
shield against a charge of common assault. Instead, any
parent who hits a child faces the same potentially criminal
treatment as if the victim had been an adult – whatever the
family’s belief or religion.

“The common law defence of reasonable chastisement is

unconstitutional and no longer applies in our law”

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NEGOTIORUM GESTIO
Also known as unauthorised administration or presumed consent.

If X commits an act which infringes interests of Y, and X’s act thereby conforms with definitional elements of
a crime, his conduct is justified if he acts in defence of, or in furthering of, Y’s interests, in circumstances in
which Y’s consent to act is not obtainable but there are nevertheless, at time of X’s conduct, reasonable
grounds for assuming Y would have indeed consented to X’s conduct had he been in a position to make a
decision about it.

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REFERENCES

Snyman, C.R. 2014. Criminal Law. 6th ed. Durban: LexisNexis

1. http://krav-maga.com/wp-content/gallery/woman/Woman%20gouging%20eyes%202.jpg
2. http://pksa.com/portals/0/Images/OurFinal/SelfDefenseCartoon.jpg
3. https://www.quora.com/What-is-the-meaning-of-putative
4. http://pluspng.com/png-red-arrow-4288.html
5. https://www.shutterstock.com/search/remember
6. http://www.dreamstime.com/royalty-free-stock-images-dangerous-funny-toon-dog-image9955979
7. https://www.giantbomb.com/no-before-yes/3015-7644/
8. http://www.cartooncliparts.com/picture/yes-green-button-and-pointer-hand-3d-pixmac-clipart-89025686/000089025686
9. http://resources0.news.com.au/images/2010/11/23/1225959/760156-invasion-of.jpg
10. http://www.toonpool.com/user/589/files/freeze_940475.jpg
11. http://ossafrica.com/esst/images/c/c8/Usingdeadlyforce.jpg
12. http://www.constructionconnection.com/blog/wp-content/uploads/2012/08/2012-09_because-i-said-so.jpg
13. http://2rxax5inm6sma94zqz2y91348.wpengine.netdna-cdn.com/wp-content/uploads/sites/4/2014/03/Caning-cartoon-760-x-
420-750x420.jpg
14. https://www.searchenginewatch.com/2018/08/16/key-takeaways-from-googles-latest-algorithm-update/

GPCL 5112
Learning unit 5 – Unlawfulness