Source:

South African Criminal Law and Procedure ­ Volume I: General Principles of Criminal Law/Part Two General Principles of Criminal Liability/Section C: Defences
excluding unlawfulness/Chapter 8 Private Defence /II Requirements of private defence

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/gpcl/32/54/55/56?f=templates$fn=default.htm

II Requirements of private defence

A Conditions relating to the attack
In order for a situation of private defence to arise, there must be evidence that (1) there was an attack (2) upon a legally protected interest
and (3) that the attack was unlawful.

1 Attack
Fear alone is not enough to justify a defence; 5 there must be an actual or imminent attack upon an interest of the defender. Normally the
attack will involve some positive act, but this is not essential and private defence can be resorted to where the attack takes the form of an
omission to act. 6
7
Private defence can only be resorted to in respect of an attack that has already begun ('commenced') or is imminent.

Commenced
Private defence cannot be resorted to where the person invoking it has the time or opportunity to seek other forms of protection. Therefore,
where the attack is anticipated at some time in the future, resort to a pre­emptive attack is not permissible. This does not mean, however, that
the defender 'must wait until the blow has fallen' 8 before acting in defence.

Imminent
If the attack is immediately about to begin ('imminent') the victim may legitimately resort to a private defence. The issue is perhaps not so
much the immediacy of the threat, but the immediacy of the response required to avoid the attack. If the nature of the attack is such that the
threatened harm cannot be avoided, the victim should be entitled to act with such anticipation as is necessary for effective protection.

4th Ed, 2011 ch8­p123

The requirement that the attack must have commenced or be imminent is qualified in the case of protective devices intended to deter
intruders. Harm or injury caused by such devices may be excused as a form of private defence. 9 Similarly, it has been stated that victims of
the 'battered wife' or 'abused intimate partner' 1 0 syndrome ought to be allowed to pre­empt the anticipated and inevitable attack of the
abusive partner. 1 1 This qualification to the traditional approach to private defence has, however, not yet been confirmed by the Supreme Court
of Appeal.
The attack must not have been completed: Any measures taken after the attack has ceased 1 2 would be retaliatory rather than defensive
and therefore unjustified. 1 3 However, it would seem that a defence undertaken after the attack had commenced and continued after the
attack had ceased, is not necessarily justified. 1 4

2 Protected interest
Private defence may be resorted to only in respect of an interest recognised and protected by law. 1 5 Most legal systems have approached the
question of what interests may be protected by private defence in a casuistic way, with the result that not all legal interests have always been
recognised as the subject of private defence.

4th Ed, 2011 ch8­p124

Life and limb

It is universally agreed that a person is entitled to protect life 1 6 and limb 1 7 in private defence. The privilege in this case derives from the pre­
eminent social interest in the preservation of human life. Serious bodily harm is an interest only slightly less important, and as such is also
protected by the right of private defence.
As will be seen below, these interests are considered so important that the defender is entitled to use deadly force for their protection.

Property
18
It is generally agreed that a citizen may resort to private defence in order to protect his or her property.

Other interests
19 20 21 22
South African courts have recognised the right to defend personal freedom, sexual integrity, chastity, and dignity by means of
private defence.

4th Ed, 2011 ch8­p125

The prevailing view in our law seems to be that private defence ought to be available in respect of attacks upon any legal interest. 23

Interests of third persons

It would seem clear that the privilege of private defence is not restricted to the interests of the person attacked and can be invoked in order to
defend the interests of a third person such as a spouse, parent, or child. 2 4
Although it has been suggested 2 5 that the defence of third parties is only lawful where there is a relationship in terms of which it is the
defender's moral or legal duty to act in defence of the third party, this view is not generally favoured. 2 6 This private defence principle must,
however, be limited to the protection of particular individuals and not society at large, lest 'vigilantes' should claim to be acting lawfully by
attacking persons or organisations thought to be a danger to society.

3 Unlawful
Private defence can be resorted to only in respect of an attack that is unlawful. 2 7 Thus one may not defend oneself against lawful arrest, 28
or
justifiable punishment, nor may one act to protect one's property from lawful search or seizure.
If compulsion is legally capable of constituting a ground of justification for killing, then the person to be killed by an accused, who is
compelled by another to do so, would according to strict principle not be able to defend himself or herself against what would amount to a
lawful or justified attack. This conclusion is anomalous, but nevertheless a natural result of categorising the defence of compulsion as a ground
of justification or defence excluding unlawfulness. 2 9

4th Ed, 2011 ch8­p126

The fact that the attacker is a child or insane person who lacks criminal capacity does not make the attack not unlawful, 3 0 and thus
defence against such an attack is lawful. 3 1 On the other hand, private defence cannot be raised against the spontaneous 3 2 attack of an
animal, since an animal cannot act unlawfully. 3 3

B Conditions relating to the defence

© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Sep 12 2022 12:03:35 GMT+0200 (South Africa Standard Time)
In order for a situation of private defence to arise, there must be evidence that the defence was (1) necessary to avert the attack (2) a
34
 The fact that the attacker is a child or insane person who lacks criminal capacity does not make the attack not unlawful, 3 0 and thus
defence against such an attack is lawful. 3 1 On the other hand, private defence cannot be raised against the spontaneous 3 2 attack of an
animal, since an animal cannot act unlawfully. 3 3

B Conditions relating to the defence

In order for a situation of private defence to arise, there must be evidence that the defence was (1) necessary to avert the attack (2) a
reasonable response to the attack (3) directed against the attacker. 3 4

1 Defence necessary to avert the attack

A person is justified in acting in defence only if the attack cannot be averted in any other way. 3 5 In other words, private defence can be
resorted to only when it is necessary to do so. A defence is necessary where it is the only means available at the time for warding off the
attack. The fact that other means of relief are available does not make the defence unnecessary if at the time of the attack it was impossible
for the defender to obtain that relief.

Avoiding the attack

Where the threat is one of personal injury, a defence might not be necessary, in the circumstances, if the attack can be avoided by retreat or
escape. Indeed some legal

4th Ed, 2011 ch8­p127

systems, concerned about the preservation of human life, impose on the victim of an attack a duty to retreat 36 in so far as this is possible 37

and if the retreat would not expose the defender to even greater danger. 3 8
However, there is no duty to flee in South African law and the accused may be unable to flee. 3 9 Clearly, if to flee would be to worsen the
accused's chances of avoiding the injury, he or she would be justified in standing his or her ground and defending himself or herself. 4 0 To flee
when property is threatened would simply give the attacker the opportunity to steal the property without hindrance.
But, if there is no danger in retreating, is it the duty of a person to retreat rather than resort to some defensive action? Certainly there is
authority in the Roman­Dutch law for such a proposition 4 1 and dicta in our case law indicate that the courts consider that such a duty exists in
modern South African law. 4 2
There seems to be something wrong about the duty to retreat. If I do not run away from an unlawful attack, but rather stand up to my
attacker and defend myself by

4th Ed, 2011 ch8­p128

striking him, I do not act in lawful private defence and thus am liable to punishment for the assault inflicted upon the attacker. The duty to
retreat may be viewed as demeaning and insulting to the innocent victim of an unlawful attack.
The imposition of a duty to retreat is a feature of the 'choice of evils' approach to private defence. 4 3 That approach has been rejected in
our law insofar as the defence of property is concerned 4 4 in favour of the doctrine of personal autonomy, 4 5 which regards the attacker as a
wrongdoer whose aggression may be resisted from the outset. If this approach were applied to private defence of non­proprietary interests, the
defender would not be obliged to retreat to avoid the attack.
It is submitted that there is no absolute duty to retreat from an unlawful attack. The approach of our law ought to be that the question of
whether or not the defender could or should have retreated is merely one of the issues to be taken into account in assessing whether the
defender's defensive act was allowed by law. 4 6

2 Reasonable response to the attack

Although it may have been necessary for a person to resort to the use of force in private defence, this alone is not sufficient to establish that
the defender acted lawfully. If necessity were the only requirement, it would follow 'that every weak lad whose hair was about to be pulled by a
stronger one, [should be justified] in shooting the bully if he could not otherwise prevent the assault'. 4 7 For this reason almost every legal
system requires that not only must the force have been necessary, but also that the gravity of the attack and the style and extent of the
defence against the attack must be more or less proportional. 4 8 The social interest requires that this should be so lest private defence
degenerate into private vengeance. Accordingly, a defence that uses more force than is necessary is not justified. 4 9
This principle is expressed in a requirement that the method used to avert the attack was reasonable in the circumstances. 50 There are
differing views on what constitutes

4th Ed, 2011 ch8­p129

a reasonable amount of defence. The principle adopted by the Romans was that only 'moderate' force could be used in defence against an
attack. Some of the Roman­Dutch authorities require that the amount of force used in the defence must be proportionate to that used in the
attack. 5 1
The issue of proportionality relates either to the nature of the interests involved (eg is it appropriate to take life in order to protect
property?) 5 2 or to the means used (eg using a gun in defence against punches).

Interests
In 1967 the South African Appellate Division in Ex parte Die Minister van Justisie: In re S v Van Wyk 53 rejected the principle of proportionality in
the context of a situation of defence of property, rather than life or limb:
It must be conceded, in my view, that such a balancing is not acceptable as a general yardstick. Generally, as regards private defence, the
interests of the attacker and the victim are seldom similar or equivalent. It is true that a slap cannot without more justify killing, but the avoidance
of a serious non­deadly wound can be balanced against the life of the attacker; and how does one measure the dignity or bodily integrity of a
woman who has been raped against the life of the rapist?
Proportionality will not do as a general basis for private defence. One who invades another's rights, who defiantly ignores the prohibition,
warning and resistance of the right holder so that he can only be prevented by the most extreme measures, can with good reason be seen as the
author of his own misfortune. It is he who is the outlaw, and if he is prepared to risk death in violating another's rights, why should the defender,
who is unquestionably entitled to protect his rights, be viewed as the one acting unlawfully if he uses deadly force rather than sacrifice his rights?

Means
Proportionality in terms of the nature of the defensive means used was required by some of the old authorities, who insisted on an equivalence
of weaponry and opponents. However, such geometric or arithmetical symmetry is not favoured in modern law, 5 4 since its effect is that the
defender's ability to defend is essentially determined by the attacker.
An issue that has received attention from the courts over the years is that of the warning or warning shot. In the case of R v Stephen 5 5 in
1928 the court insisted that a warning should have been given by the homeowner before he fatally stabbed an intruder in his house at night.
The issuing of a warning or the firing of a warning shot must, however, be examined in the light of all the circumstances. It may, in certain

4th Ed, 2011 ch8­p130

circumstances, be unreasonable to expect a person faced with an intruder in his or her home to call out a warning or fire a warning shot. By
calling out he or she might simply sign his or her own death warrant by identifying his or her own position to the intruder or by provoking an
armed intruder into returning fire. The emergency situation faced by the homeowner might not give time for warnings. However, in
circumstances where an oral warning or even a warning shot can reasonably be expected of the defender, such a warning should be given. In a
civil case, 5 6 where X shot a total stranger in his driveway in the middle of the night, the Supreme Court of Appeal held that a reasonable
person would not have shot the stranger without warning and emphasised that the accused had the 'time and opportunity' to do so.
© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Sep 12 2022 12:03:35 GMT+0200 (South Africa Standard Time)
Modern approach
 calling out he or she might simply sign his or her own death warrant by identifying his or her own position to the intruder or by provoking an
armed intruder into returning fire. The emergency situation faced by the homeowner might not give time for warnings. However, in
circumstances where an oral warning or even a warning shot can reasonably be expected of the defender, such a warning should be given. In a
civil case, 5 6 where X shot a total stranger in his driveway in the middle of the night, the Supreme Court of Appeal held that a reasonable
person would not have shot the stranger without warning and emphasised that the accused had the 'time and opportunity' to do so.

Modern approach
Because of the difficulty of consistent application of a principle of proportionality, modern legal systems do not insist upon strict proportionality
between the attack and defence, believing rather that the proper consideration is whether, taking all the factors into account, the defender
acted reasonably in the manner in which he defended himself or his property. 5 7 This test allows the court to assess the defence in the context
of factors such as the—
• Relationship between the parties;
• Their respective ages, gender and physical strengths;
• Location of the incident;
• Nature, severity and persistence of the attack;
• Nature of any weapon used in the attack;
• Nature and severity of any injury or harm likely to be sustained in the attack;
• Means available to avert the attack;
• Nature of the means used to offer defence; and
• Nature and extent of the harm likely to be caused by the defence. 58

The interest threatened and, in the case of defence of property, its value could also be relevant, but there is no closed list of factors that can
be considered in determining the proportionality issue. 5 9

4th Ed, 2011 ch8­p131

Although the approach in South African law has involved a version of the proportionality principle, namely whether the means used were
commensurate with the danger apprehended, 6 0 some cases have favoured the test of reasonableness. 6 1

3 Defence directed against the attacker

The right of private defence can only be exercised against the attacker, not against a third party. Thus, if X, in defending himself against Y's
attack, throws a stone at Y, which misses him and hits Z, a passer­by, X cannot plead private defence to a charge of assaulting Z. However, it
is possible that X could justify his act on the ground of necessity, 6 2 and he would nevertheless escape liability if he lacked mens rea in respect
of the assault upon Z. 6 3

5 However, fear alone may be relevant to the existence of 'putative' private defence, which is a defence affecting the fault of the accused, see below 132,
417–18.
6 As where the authorities fail to release a prisoner after his sentence has expired. The prisoner's escape would be lawful private defence.
7 I van Zyl Steyn 'Noodweer' (1932) 49 SALJ 461 at 470. See, however, the possible qualification regarding an 'inevitable' attack in a situation of domestic
abuse, below 123.
8 Broom J in R v Hope 1917 NPD 145 at 146.
9 See below 136.
1 0 Satchwell J in S v Engelbrecht 2005 (2) SACR 41 (W) at para 349: '... I am of the view that when abuse is frequent and regular such that it can be termed
a "pattern" or a "cycle" of abuse ... the requirement of "imminence" should extend to encompass abuse which is "inevitable."' Pieter Carstens (2010) 31 De
Rebus 478 argues that although S v Steyn 2010 (1) SACR 411 (SCA) did not specifically affirm the approach in Engelbrecht, the approach taken in that case is a
logical extension (at least by implication according to Carstens) of Engelbrecht (485). Howie P in S v Ferreira 2004 (2) SACR 454 (SCA), regarded evidence of
partner abuse as admissible in mitigation of sentence but also referred to the substantial body of international writing on such evidence as relevant to a self­
defence plea (at para 37). As a result of a cycle of physical and emotional abuse the appellant in Ferreira felt 'unable to escape by any other route than by
homicide' (para 35). Howie P regarded the evidence on the abusive background to which Ferreira was subjected as 'subjectively ... justifiable in mitigation of
sentence' (para 38). For a summary of some of the literature on the 'battered woman syndrome' see JM Burchell South African Criminal Law and Procedure vol 1
General Principles of Criminal Law 3 ed (1997) 212. See further on domestic violence and abuse, below 343–7.
1 1 See the discussion below 345–7.
1 2 In S v Mogohlwane 1982 (2) SA 587 (T) Y, after being robbed by X, went home, collected a weapon, returned to the scene of the robbery and used force
against X to recover his property. It was held that he had acted in lawful private defence insofar as his actions had been part of the res gestae of the original
attack.
1 3 R v Hayes 1904 TS 383; R v Kantolo 1912 EDL 154.
1 4 This is the view expressed in S v Moloisana 1984 (1) PH H16 (O). The court held that in assessing the 'defence' after the attack had ceased it was
necessary to consider all the circumstances, including the ease with which the 'defence' once commenced could be terminated.
1 5 In S v Kamffer 1965 (3) SA 96 (T) it was held that a parent did not have 'the additional remedy of self­help' in order to obtain access to a child.
1 6 R v Jack Bob 1929 SWA 32; R v Manuele Sile 1945 WLD 134; R v Hele 1947 (1) SA 272 (E); Rv Zikalala 1953 (2) SA 568 (A); R v K 1956 (3) SA 353 (A);
R v Segatle 1958 (1) PH H125 (A).
1 7 R v Cele 1945 NPD 173; R v Patel 1959 (3) SA 121 (A) at 123; S v Jackson 1963 (2) SA 626 (A); S v Mtetwa 1967 (2) PH H273 (N).
1 8 The use of force, including the controversial issue of killing in defence of property, is considered separately at the end of this chapter, see 141–4.
1 9 R v Hayes 1904 TS 383; R v Mahomed (1906) 27 NLR 396; R v Kantolo 1912 EDL 154; R v Mfuseni (1923) 44 NLR 68; R v Jackelson 1926 TPD 685; R v
Kleyn 1937 CPD 288; R v Karvie 1945 TPD 159.
2 0 R v Nomahleki 1928 GWL 8 (a case of attempted sodomy).
2 1 There are dicta in S v Mokoena 1976 (4) SA 162 (O) at 163C–D to the effect that a man may use force to defend the chastity of his wife or sister. See
also Moorman 2.2.5 (who says inter alia, that a woman may be entitled to kill a man attempting to rape her). Van der Keessel 48 8 11 justifies private defence of
chastity (at 1053) with the observation that 'to good men the fear of losing their chastity ought to be greater than that of death'.
2 2 R v Van Vuuren 1961 (3) SA 305 (E). In S v Ndlangisa 1969 (4) SA 324 (E) X was charged with insulting Y's dignity by spitting in her face. He said he did
so because Y was insulting him and he wished to stop her from doing so. This defence of private defence did not succeed, the court holding that X had 'taken the
law into his own hands when there were other remedies open to him'.
The Roman­Dutch writers were divided upon whether a person could invoke private defence against an attack upon honour which does not involve bodily
injury or a threat thereto (Steyn (1932) 49 SALJ 461 at 466–8). It seems unlikely that the South African law would allow private defence of honour alone (JMT
Labuschagne 'Noodweer ten aansien van nie­fisiese persoonlikheidsgoedere' (1975) 8 De Jure 59 at 62 concludes that on the whole the old authorities did not
favour the use of force in the protection of honour).
2 3 De Wet and Swanepoel 74; LAWSA Vol 6, 37; Labuschagne op cit n22. The finding in S v Kamffer 1965 (3) SA 96 (T) that self­defence cannot be extended
to the use of force to secure a right of access to a child, is not against this view since there the accused did not act to ward off an unlawful attack and, in any
event, there was no justification for the accused to take the law into his own hands. But was this a case of necessity? See below 145ff.
2 4 R v Patel 1959 (3) SA 121 (A); R v Mhlongo 1960 (4) SA 574 (A); R v Van Vuuren 1961 (3) SA 305 (E).
2 5 FG Gardiner & CHW Lansdown South African Criminal Law and Procedure 6 ed (1957) Juta & Co Ltd 112.
2 6 JMT Labuschagne, 'S v Mokoena 1976 (4) SA 162 (O)' (1977) 10 De Jure 175.
2 7 Ntanjana v Vorster Minister of Justice 1950 (4) SA 398 (C) at 404–5; R v Ndara 1955 (4) SA 182 (A) at 184. On the distinction between 'unlawfulness' and
'negligence', see below 423ff.
2 8 Ndara supra n 27 at 184; S v Aleck 1973 (1) PH H7 (R). Where the arrester has used more force than is necessary to effect the arrest, it becomes
unlawful and may, therefore, be resisted (S v Aleck). An unlawful arrest may also be resisted: See R v Hayes 1904 TS 383; R v Mahomed (1906) 27 NLR 396; R
v Jackelson 1926 TPD 685; R v Thomas 1928 EDL 401 (unlawful search).
2 9 See below 159–60.
3 0 Lack of criminal capacity is not a factor that affects the lawfulness of conduct. See below 255ff.
3 1 Although the point did not arise for decision, private defence against an insane person succeeded in R v K 1956 (3) SA 353 (A). See also Steyn op cit n7
at 469; W Bertelsmann 'Grensgebiede van noodweer (1967) 30 THRHR 108 at 116–17; SA Strauss 'Book review' (1970) 87 SALJ 471 at 476–7. Contrast JMT
Labuschagne 'Noodweer teen 'n regmatige aanval' (1974) 7 De Jure 108.
3 2 John van der Berg 'The curious case of the dog that acted lawfully' (1987) 104 SALJ 22.
3 3 It is true that instances of the use of force to avoid damage to property by animals have been (or appear to have been) treated as cases of private
defence (R v Staalmeister 1912 EDL 308; R v West 1925 EDL 80; Du Plessis v Van Aswegen 1931 TPD 332; R v Pope 1953 (3) SA 890 (C); S v Wassenaar 1966
(2)and
© 2018 Juta PH Company
H351 (T); S v Dittmer
(Pty) Ltd. 1971 (3) SA 296 (SWA)). Strictly speaking, the defence in these cases
Downloaded : MonisSep
that12
of 2022
necessity. See GMT+0200
12:03:35 below Ch 9ff.
(South Africa Standard Time)
3 4 Some authorities maintain that the defender should also be able to show that he was consciously acting in private defence (see DW Morkel & T Verschoor
'Oor die "bedoeling om te verdedig" by noodweer' 1981 TRW 73; Snyman 112 who cites other authorities in n 66). Following this approach, if a person decides to
 3 1 Although the point did not arise for decision, private defence against an insane person succeeded in R v K 1956 (3) SA 353 (A). See also Steyn op cit n7
at 469; W Bertelsmann 'Grensgebiede van noodweer (1967) 30 THRHR 108 at 116–17; SA Strauss 'Book review' (1970) 87 SALJ 471 at 476–7. Contrast JMT
Labuschagne 'Noodweer teen 'n regmatige aanval' (1974) 7 De Jure 108.
3 2 John van der Berg 'The curious case of the dog that acted lawfully' (1987) 104 SALJ 22.
3 3 It is true that instances of the use of force to avoid damage to property by animals have been (or appear to have been) treated as cases of private
defence (R v Staalmeister 1912 EDL 308; R v West 1925 EDL 80; Du Plessis v Van Aswegen 1931 TPD 332; R v Pope 1953 (3) SA 890 (C); S v Wassenaar 1966
(2) PH H351 (T); S v Dittmer 1971 (3) SA 296 (SWA)). Strictly speaking, the defence in these cases is that of necessity. See below Ch 9ff.
3 4 Some authorities maintain that the defender should also be able to show that he was consciously acting in private defence (see DW Morkel & T Verschoor
'Oor die "bedoeling om te verdedig" by noodweer' 1981 TRW 73; Snyman 112 who cites other authorities in n 66). Following this approach, if a person decides to
attack an enemy for revenge and in pursuit of this intention knocks the enemy down, this assault cannot be justified as private defence if it turns out that the
person's enemy had in fact at that moment initiated an attack upon him or her. The objection to allowing this to be a case of private defence lies in the fact that
the 'defender' actually commenced an unlawful act and is only by chance able to escape the consequences of his act by relying upon private defence.
3 5 Steyn op cit n7 at 471, 473.
3 6 The duty was imposed for instance by s 140 of the Carolina. Some Roman­Dutch authorities repeated this rule: Damhouder c78n5; Van Leeuwen RHR 3
34 10; Matthaeus 48 5 3 7; Moorman 2 2 12–13; Van der Linden 2 5 9. Leach AJA in Steyn v S 2010 (1) SACR 411 (SCA) at para 21 regarded the question
whether a person is 'obliged to flee from an unlawful attack rather than entitled to offer forceful resistance' as 'somewhat vexed'. On the facts of the case,
however, the appellant could not have been expected, so the Supreme Court of Appeal held, 'to gamble with her life by turning her back on the deceased [her
abusive former husband], who was extremely close to her and about to attack her with a knife'.
The jurists, however, minimised the duty by the application of various presumptions: (i) that the defender had acted with moderamen tutelae inculpatae (ii)
that it would be dangerous for a person threatened by a weapon to flee; (iii) that the attacker is stronger than the defender and better armed. See I van Zyl
Steyn 'Noodweer' (1932) 49 SALJ 461 at 475.
Contrast Van der Keessel 48 8 11 (at 1065) who disputes that there was a duty to retreat.
A similar principle evolved in English law: See JH Beale 'Retreat from a murderous assault' (1903) 16 HLR 567; R v Julien [1969] 2 All ER 586.
The American Law Institute's Model Penal Code s 3.04 (2)(b)(ii) asserts the existence of the duty to retreat (except from the home). However, this rule is not
universally followed and in some states there is no obligation to retreat from a dangerous attack. LaFave 498 and 503.
3 7 In English law the defender was required to retreat 'to the wall', or, in other words, retreat until his or her ability to do so was restricted. See Coke 3 Inst
55 ('... if A be assaulted by B, and they fight together, and before any mortal blow is given, A giveth back until he cometh to a hedge, wall or other strait, beyond
which he cannot pass, and then, in his own defence and for the safeguard of his own life, killeth the other ...'); Beale op cit.
3 8 R v Zikalala 1953 (2) SA 568 (A) at 572.
3 9 R v K 1956 (3) SA 353 (A).
4 0 R v Manuele Sile 1945 WLD 134 at 135.
4 1 See n 36.
4 2 The dicta repeat Gardiner & Lansdown's version of the Roman­Dutch law on the point: 'Where a man can save himself by flight, he should rather flee than
kill his assailant' (1 ed (1919) 1006). See R v Hele 1947 (1) SA 272 (E) at 276; R v Zikalala supra n 38 at 571–2; R v K 1956 (3) SA 353 (A) at 358H; R v
Patel 1959 (3) SA 121 (A) at 123F. S v Mnguni 1966 (3) SA 776 (T) at 779A does not rely on Gardiner & Lansdown, but is authority for the proposition.
4 3 See Fletcher Rethinking Criminal Law 774ff.
4 4 See below 129, 142–3.
4 5 See below 142.
4 6 As in S v Mnguni 1966 (3) SA 776 (T) at 779; R v Bird [1985] 1 WLR 816 (CA). Compare Snyman 109.
4 7 Report of the Royal Commission on the Law relating to Indictable Offences (1879) (C 2345) Note B at 44. For a case in which a young person was held to
have been justified in shooting a bully, see S v T 1986 (2) SA 112 (O).
4 8 Compare A Ashworth 'Self defence and the right to life' [1975] Camb LJ 282 at 296. Compare the remarks of the Royal Commission (n 47):
'We take one great principle of the common law to be, that though it sanctions the defence of a man's person, liberty and property ... this is subject to the
restriction that ... the mischief done by ... the force used is not disproportionate to the injury or mischief which it is intended to prevent.'
4 9 The implications of this for the defender are discussed below 134–5.
5 0 R v Jack Bob 1929 SWA 32 at 34; Hele supra n 42; R v Biyela 1958 (1) PH H12 (A).
5 1 Defensio ad offensionem proportionata esse debet: Carpzovius 28 16.
5 2 See below 143.
5 3 1967 (1) SA 488 (A) at 497.
5 4 S v T 1986 (2) SA 112 (O) at 128J.
5 5 1928 WLD 170.
5 6 Coetzee v Fourie 2004 JDR 0225 (SCA); [2004] JOL 12555 (SCA). Compare the discussion of the limits of the defence of s 49 of the Criminal Procedure
Act 51 of 1977, as amended, below 200.
5 7 Steyn v S 2010 (1) SACR 411 (SCA) at para 19.
5 8 These factors, which are not exhaustive, are derived from S v Trainor 2003 (1) SACR 35 (SCA) at 41–2 (para 13) and Steyn v S 2010 (1) SACR 411
(SCA) at para 19.
5 9 See also R v N'Thauling 1943 AD 649 at 654; R v Ndara 1955 (4) SA 182 (A) at 184; S v Marert 1967 (1) PH H167 (A); S v Engelbrecht 2005 (2) SACR 41
(W) at para 357.
6 0 For applications of this test, see R v Stephen 1928 WLD 170 at 172; R v Jack Bob 1929 SWA 32; R v Zikalala 1953 (2) SA 568 (A) at 571. Strong criticism
is levelled at the test by De Wet and Swanepoel 79.
6 1 See S v Ntuli 1975 (1) SA 429 (A) at 436D, 437E; S v Motleleni 1976 (1) SA 403 (A) at 406.
6 2 See below 145ff.
6 3 See below 409–12.

© 2018 Juta and Company (Pty) Ltd. Downloaded : Mon Sep 12 2022 12:03:35 GMT+0200 (South Africa Standard Time)