Learning Unit 5 transcript

This lesson is located in the link below:

https://youtu.be/rI4YvC5CdII

We would like to welcome each and every one of you to this lecture on criminal law. Today, we will
be focusing on Learning unit 5. Again, if you have any specific queries on the content of this learning
unit, do not hesitate to contact and ask your lecturer. We are here to help.

As always, let’s begin the lecture with a recap of the last sessions we had. After completing the first
two Learning Units, we moved on to criminal liability and discussed the first two of the requirements
for criminal liability, namely the act (or conduct), and definitional elements (which included causation)
in Learning Units 3 and 4. As you can see from the graph above, in this Learning unit, we are moving
on to the requirement of unlawfulness.

Open Rubric
As regards Learning unit 4, we first considered the meaning of the concept "definitional elements".
Thereafter, we discussed a very important requirement that forms part of the definitional elements
of certain (but not all) crimes, namely the causation requirement. Under causation, we examined the
two types of causation, namely factual causation and legal causation, as well as the courts’ approach
to causation and case law on causation. You were informed that in determining factual causation, we
basically deal with the conditio sine qua non principle (also termed the but-for causation). And in
determining legal causation, we firstly considered policy considerations, and then thereafter asked
whether any of the theories are applicable, that is, the individualisation theory, the adequate
causation theory and the novus actus interveniens.

As you see from this flowchart, we are dealing with unlawfulness, the third element of criminal
liability. Even if we have established that the perpetrator performed an act that corresponds to the
definitional elements, this still does not mean that the person who performed the act is liable for the
particular crime. The next step in determining liability is to enquire whether the act that complies with
the definitional elements is also unlawful. As you can see, after unlawfulness, we are left with only
culpability to complete the requirements of criminal liability.

We will start the discussion on “unlawfulness” with an explanation of the meaning of "unlawfulness"
and, thereafter, the first ground of justification, namely private defence, will be dealt with. If we think
of the meaning of the word “unlawful”, it is quite easy to state that it means “against the law”. And
for a specific crime, this means that if X’s act complies with the definitional elements of the crime, the
act is unlawful. But this is not the only meaning of “unlawfulness”. Conduct is unlawful if it conflicts
with the boni mores (literally "good morals") or legal convictions of society. This means that, according
to the legal convictions (or boni mores) of society, certain interests or values protected by the law
(such as life, property or dignity) are regarded as more important than others. If an act conflicts with
such interests or values, it is unlawful (for example, murder conflicts with the right to life and is thus
unlawful). But unlawfulness may also mean “without any justification”. This meaning is added because
sometimes an act complies with the definitional elements of a crime, but it is not necessarily unlawful.
For example, if X cuts Y’s body with a knife or scalpel, X seems to satisfy the definitional elements of
assault, but not if we know that X is a surgeon performing an operation on Y to which Y has given
consent. So, before we can decide that certain conduct is unlawful, we need to first consider whether
there are no grounds of justification that may exclude the unlawfulness of the act. If this defence fails,
then the conduct will be unlawful.
Examples of well-known grounds of justification are private defence (or self-defence), necessity,
consent, presumed consent, obedience to orders and official capacity. Triviality and the right of
chastisement (which was declared unconstitutional) are discussed as additional topics of interest. We
will now proceed to a discussion of the different grounds of justification. The rest of this learning unit
is devoted to a discussion of the first ground of justification, namely private defence. In the next
learning unit, we will deal with the remaining grounds of justification.

A person acts in private defence – and his conduct is therefore lawful – if he uses force to repel an
unlawful attack that has already commenced, or that immediately threatens his or somebody else's
life, bodily integrity, property or other interest that ought to be protected by the 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. This definition seems quite complicated,
but as you will see from the next slides, the definition basically consists of the private defence
requirements for the attack and for the defence. A quick note on the word “private defence” utilised
here. The layman term for this defence is self-defence, but this is a too narrow description of the
defence as one may rely upon this ground of justification not only in defending themselves, but also
in defending other people. It is also important to note that the test whether X acted in private defence
is objective. This means that X’s conduct must be seen in the light of the actual facts that took place,
and not according to what X himself (at the time) took the facts to be. If X thinks he is acting in private
defence, but in reality, it is not a situation of private defence, X may claim the defence of putative
private defence. This is not a lawful defence, but X may escape liability because of the absence of
culpability on his part. For example, if X thinks it is a robber climbing over the wall to his house, and
shoots at and kills the robber as he fears for his life, but in actual fact it is his gardener who forgot his
gate keys, X may rely on the absence of culpability as he made a mistake which excluded the intention
to murder his gardener. We will discuss this topic more under “Culpability” in Learning unit 10.

As mentioned in the previous slide, it is convenient to divide the requirements of private defence into
two groups. The first group comprises those requirements or characteristics with which the attack
against which a person acts in private defence must comply; the second comprises the requirements
with which the defence must comply. The requirements of attack are: The attack must be unlawful, it
must be against interests that ought to be protected, and it must be threatening but not yet
completed. As regards the unlawfulness of the attack, in deciding whether the attack of Y (the
aggressor) on X is unlawful, there are three considerations to take note of: (1) The attack need not be
accompanied by culpability. X can successfully rely on private defence, even if his defensive act is
directed at the conduct of a mentally ill person or a young child, or if Y attacks X by mistake (which
excludes Y’s intention) and X defends himself against Y’s unlawful attack. Animals cannot act
unlawfully, so if X defends himself against an attack by an animal, X may rely on the ground of
justification known as necessity, and not private defence. The attack need not be directed at the
defender. X may also act in private defence to protect a third person as in the Patel case, where Patel
defended his brother who, while crouching on the ground, was hit by Y with a hammer on his back.
Thinking that the next blow would land on his brother’s head, Patel shot and killed the attacker in
private defence. (2) The attack must be directed against interests that, in the eyes of the law, ought
to be protected. These interest are normally in protection of the attacked party's life or physical
integrity, but a person can also act in private defence in protecting property (as in the Van Wyk-case),
or in protecting dignity (as in the Van Vuuren-case), or in preventing unlawful arrest or attempted
rape. As far as protection of property is concerned (as in the Van Wyk-case), we would like to point
out that the common-law rule as used in Van Wyk (i.e. that a person may kill in defence of property)
may possibly be challenged on the grounds that it amounts to an infringement of the constitutional
rights of a person to life (s 11 of the Constitution), and to freedom and security (s 12). (3) The attack
must be threatening but not yet completed. This means that X can defend himself against Y’s attack
only if there is an attack or immediate threat of attack by Y against him. If X thinks Y will attack him
somewhere in the future and quickly attacks him first, or Y has already attacked X somewhere in the
past, and X attacks Y, X cannot rely on private defence. In the Mogohlwane case, Y robbed
Mogohlwane, a poor man, of a paper bag containing some clothes, a pair of shoes and food by
threatening him with an axe. Mogohlwane ran to his house (some 350 metres away), fetched a knife,
and tried to regain his paper bag from Y. In the struggle that followed, Y was fatally stabbed by
Mogohlwane. The court regarded Mogohlwane’s act as private defence as although some time
elapsed between the attack and the defence, the attack was still ongoing when Mogohlane tried to
regain his bag. The attack was not yet completed.

The requirements of defence are: The defensive action must be directed against the attacker, it must
be necessary, it must stand in a reasonable relationship to the attack, and it must be taken while the
defender is aware that he is acting in private defence. As regards the first requirement (1) the defence
must be directed against the attacker, it is quite logical that if X attacks Y, X cannot defend himself
against another third person, it can only be against Y. (2) The defensive act must be necessary. This
means that it must not be possible for the person threatened to ward off the attack in another, less
harmful way. It would seem that our courts require an assaulted person to flee, if possible, rather than
kill his assailant, unless such an escape would be dangerous. For criticism of this perspective, read the
discussion in Snyman’s Criminal Law 88-90. (3) There must be a reasonable relationship between the
attack and the defensive act, i.e., the act of defence may not be more harmful than necessary to ward
off the attack. For example, if Y slaps X on his cheek, X cannot defend himself by shooting Y. In the
Steyn-case, the Supreme Court of Appeal identified the following factors as relevant in deciding
whether there was a reasonable relationship between attack and defence: the relationship between
the parties, the gender of the parties, their respective ages and physical strengths; the location of the
incident; the nature of the weapon used in the attack; the nature, severity and persistence of the
attack; the nature and severity of any injury likely to be sustained in the attack; the means available
to avert the attack; the nature of the means used to offer the defence; and the nature and extent of
the harm likely to be caused by the defence. Please read this very interesting case in your Reader (pp
62-66). The last requirement here is (4) The attacked person must be aware of the fact that he is acting
in private defence. Private defence cannot succeed as a defence in cases where it is pure coincidence
that the act of defence was, in fact, directed at an unlawful attack.

In practice, there need not be a proportional relationship between the nature of the interest
threatened and the nature of the interest impaired; the weapons or means used by the attacker and
that of the defender; and the value or extent of the injury by the attacker and that of the defender.
For example: Assume that X, who is sleeping in his home, is woken up in the middle of the night by Y,
an armed burglar, who approaches his room or that of a family member. X shoots at Y in order to
protect his family. Y dies as a result of the shot. Can X's conduct be justified on the grounds of private
defence? It would be unfair to expect X first to ask Y to identify himself and state the purpose of his
visit in order to decide what, objectively, the appropriate defensive measures would be in the
circumstances. It would also be unfair to expect X first to try to arrest Y and then call the police.
Experience tells us that even a moment's hesitation by X in such circumstances might be fatal to X. To
deny X the right to shoot in such circumstances is to require him to gamble with his life or with that of
the other people in the house. Even if a court holds that X cannot rely on private defence because,
objectively, there was a less harmful way in which he could have overcome the danger, the court
would, in most cases, refuse to convict X of murder. Although X acted unlawfully, he lacked intention
because he honestly believed that his life or the lives of his family members were in danger. This
means that there was no awareness of unlawfulness on his part, and, therefore, no intention. As
previously stated, this is putative private defence which we will deal with in Learning unit 10. But this
has been enough information for one session! Please join us next week when we will discuss the
remaining grounds of justification.
Please note that the notes used in the lecture are merely supplementary (i.e., in addition) to your
prescribed material of which your study guide remains the primary source from which to study!

Thank you for attending this lecture! Have a good week, study hard and see you at the next session!
Goodbye!