Study Unit 5 (CRW2601) – Unlawfulness

Key:
Text book

Case law

Learning outcomes:
1. Application of general criterion of unlawfulness (boni mores/legal convictions of society
2. Whether certain conduct falls within the scope of grounds for justification
3. Apply the rules pertaining to grounds of justification (known as private defence)

5.2 The meaning of “unlawfulness”

Criminal Law 95-102; Case Book 61-64

5.2.1 General
Just because someone acts in a way that corresponds to the definitional elements of a crime, does
not make it a crime.

The act must also be unlawful.

A court will never convict someone unless it convinced that the act (which complies with the
definitional elements) is also unlawful, and the person is culpable.

5.2.2 Acts that comply with the definitional elements are not necessarily unlawful –
examples
1. Murder “the killing of another human being” – A person is NOT guilty if they kill someone in
self-defence
2. X inserts a knife into Y’s body (definitional element of assault) – X is not guilty if X is a
medical doctor performing an operation, with Y’s permission, in order to cure Y.
3. X exceeds the speed limit. If X does so with his gravely ill child to hospital for emergency
treatment, it is not unlawful (Pretorius 1975 (2) SA 85 (SWA))

5.2.3 Content of unlawfulness

What determines whether an act is unlawful or not?

Grounds of justification
 Unlawfulness excluded because of grounds of justification
 Examples: private defence (which includes self-defence), necessity, consent, official capacity
and parent’s right of chastisement
 There is no limited number of grounds of justification (numerous clausus)
 Each ground of justification has its limits (when exceeded the act is unlawful)
 The criteria for determining the limits of grounds of justification are explained below

Legal convictions of society

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

The law must strike a balance between conflicting individuals or individuals and society.
Certain interests or values protected by the law are regarded as more important than others. (E.g.
life, property, and dignity – Clarke v Hurst 1992 (4) SA 630 (D) 652-53).

The Bill of Rights and section 1 (values) are of crucial importance.

In order to determine unlawfulness we must ask whether the act conflicts with the boni mores/legal
convictions of society.

Grounds of justification must be seen as practical aids in the determination of unlawfulness.

Fourie 2001 (2) SACR 674 (C)

Facts: X was a magistrate, who was late for work at court. He argued that even though he had no
grounds of justification, it was not against the legal convictions of society for him to be late, as he
was not doing it for personal reasons, but for society (to administer justice).

The courts dismissed this defence.

If allowed, it could lead to wide-spread unpunishable contraventions of the speed limit.

Act that complies with the definitional elements is only “provisionally” unlawful.

Tip: Substitute “without justification” for “unlawfulness”. An act that complies with the definitional
elements is only unlawful if it is not justified.

5.2.4 Unlawfulness vs Culpability

Unlawfulness is determined without regard for X’s state of mind – whether he thought his actions
were lawful or unlawful are irrelevant.

5.3 Private Defence

5.3.1 Definition: A person acts in private defence 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.

It is convenient to divide the requirements for private defence into 2 groups:

1. Requirements of the attack

2. Requirements of the defence

Attack
1. Must be unlawful
2. Must be against interests that ought to be protected
3. Must be threatening but not yet completed

Defence
1. Must be directed against the attacker
2. Must be necessary
3. Must stand in a reasonable relationship to the attack
4. Must be taken while the defender is aware that he is acting in private defence
5.3.2 The requirements of the attack
Attack must be lawful
In Jansen 1983 (3) SA 534 (NC), two men decided to sort their differences out with a duel. Y stabbed
X, then X stabbed Y, killing him. He could not rely on private defence as his conduct was merely part
of the execution of an unlawful act, which he had planned in advance.

Was Y’s attack on X unlawful?

3 considerations:

a) The attack need not be accompanied by culpability (X could use private defence against
someone who is not culpable, like a child or insane person) See K 1956 (3) SA 353 (A)
b) Another example of where a person can act unlawfully without culpability is when they act
without intention because of mistake.
c) Animals cannot act unlawfully – therefore, you cannot use private defence (you must use
necessity)
d) The attack need NOT be directed at a defender. X may use private defence to protect a third
person (Z). There does not need to be a family, or protective connection. See Patel 1959 (3)
SA 121 (A)

Attack must be directed against interests that, in the eyes of the law, ought to be protected
The law recognises that a person can act in private defence of:

1. Property – Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488 (A)
2. Dignity – Van Vurren 1961 (3) SA 305 (EC)
3. Unlawful arrest – Mfuseni 1923 NPD 68
4. Preventing attempted rape - Mokoena 1976 (4) SA 162 (O)

Read: Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488 (A)

The appeal court held that (in extreme circumstances) not only was it lawful to kill someone in
defence of property, but also had to apply most of requirements of private defence.

Know the facts of the above case, the answers of the court, and the reasons for these answers!

He attack must be threatening but not yet completed

X cannot attack Y because he expects Y to attack him at some time in the future.

Although, he does not have to wait for Y to land the first blow.

X also cannot attack Y if Y’s attack is in the past. Private defence is not vengeance or punishment.

In Van Wyk, a shop keeper set up a shotgun to go off when someone trespassed in his shop. The
shot killed a burglar and it was held he COULD rely on private defence – even though there was no
immediate threat when the shotgun was set up.

In Mogohlwane 1982 (2) SA 587 (T). Y tried to take X’s possessions and threatened him with an axe if
he did not give them up. X ran home to fetch a knife and came back to reclaim his possessions
(property) and stabbed Y (who again threatened him with an axe). The court decided that X acted in
private defence, because the attack (from the axe) was not yet completed.
5.3.3 Requirements of the act of defence
It must be directed at the attacker
If Y attacks X, X cannot direct his act against Z.

The defensive act must be necessary

It must not be possible for X to ward off Y in another, less harmful way. Atwood 1946 AD 331 340

Read discussion in Criminal Law 106-108

There must be a reasonable relationship between the attack and the defensive act
The act of defence may not be more harmful than necessary to ward off the attack. Trainor 2003 (1)
SACR (SCA).

Someone cannot shoot and kill someone who is about to steal his pencil.

In order to decide if there is a reasonable relationship between attack and defence, the Supreme
Court of Appeal (in Steyn 2010 1 SACR 411 (SCA) 417) found the following factors relevant.

 Relationship between the parties

 Gender of the parties, age, physical strengths
 Location of the incident
 Nature of the weapon used in the attack
 Nature, severity, and persistence of the attack
 Nature and severity of injury likely to be sustained in the attack
 Nature of the means used to offer the defence
 The nature and extent of the harm likely to be caused by the defence

There doesn’t need to be a proportional relationship between the nature of the interest
threatened and the nature of the interest impaired.

Examples:

1. If Y threatens X’s property, X does not need to threaten or attack Y’s property. If Y threaten
to steal X’s property, X can assault (or even kill Y).
2. If Y threatens to rape X, X can kill Y. Rape and killing are not proportional in nature.

The weapons used by X and Y do NOT need to be proportional in nature. If Y threatens X with a
knife, X may shoot and kill Y with a gun.

There does not need to be a precise proportional relationship between the value or extent of the
injury inflicted by the attacker and the defender. We do not (like a boxing ref) count the blows by
the attacker the defender. There does need to be an approximate proportional relationship.

Read the following in the case book: Steyn 2010 SACR 411 (SCA)

The attacked person must be aware of the fact that he is acting in private defence
There is no such thing as accidental private defence.

Example: If X decides to shoot and kill Y. He dos this. It is later found out that Y was a terrorist and
had a bomb that was about to explode and kill people. If X had not killed Y, he would have died in
the explosion. X cannot rely on private defence, as he did not know he was acting in private defence.

5.3.4 The Test for private defence

The question of whether X’s conduct was private defence must be considered objectively.
It must be based on actual facts, NOT what X thought to be fact at that time.

If a man forgets his keys and climbs through his window and his wife shoots him dead, she cannot
rely on private defence, as she was not in any danger.

This is called putative private defence (from latin putare “to think”).

This does not mean she is guilty of murder.

She may rely on an absence of culpability because she was mistaken and her mistake excluded the
intention to murder her husband.

Whether there was danger must be decided post facto.

The court must visualise the position of the “attacked” person in the critical moments.

5.3.5 Exceeding the limits of private defence

If X is attacked by Y, but in defending himself exceed the limits of private defence, he himself
becomes the attacker, and is acting unlawfully.

Whether he is hen guilty of a crime like murder, assault, or culpable homicide will depend onn his
culpability (intention or negligence).

Summary
(1) Once it is clear that X has committed an act that complies with the definitional
elements, the next step in enquiring into the question of criminal liability is whether
X’s act was also unlawful.
(2) Conduct is unlawful if it is in conflict with the good morals (boni mores) or legal
convictions of society.
(3) The grounds of justification are practical aids for determining unlawfulness. They
represent situations often encountered in practice that have come to be known as
easily recognisable grounds for the exclusion of unlawfulness.
(4) See the definition of private defence above.
(5) See the summary in 5.3.1 above for the requirements with which the attack and the
act of defence must comply in order to succeed with a plea of private defence.
(6) In Ex parte die Minister van Justisie: in re S v Van Wyk, the Appeal Court held that X
may, in extreme circumstances, even kill another in private defence to protect his
(X’s) property. The constitutionality of this rule is questioned by legal writers.
(7) Putative private defence occurs when X thinks that he is in danger, but, in fact, is
not. This is not actual private defence, but it may exclude X’s culpability.