Self-defence- justifiable means in warding off an unlawful attack. This article will discuss the requirements that need to be met in order to succeed with this defence.
In South Africa violent crime has become a massive concern for many who call this wonderful place home, but what can we do about it? In our law we are entitled to protect our own interest and those of others, but unfortunately many citizens do not know the ambit of these defences.
A person acts in private or self-defence, and his act is therefore lawful, if he uses force to repel an unlawful attack which has commenced, or is imminently threatening, upon his 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[1] The requirements to succeed with this defence are as follow:
• The attack must be unlawful (without legal justification).[2] Example of a lawful attack will be if the parties consented to the attack. This will often happen in sport for example a boxing match. The list of situations where an attack will be lawful is unfortunately not a closed list and public policy will determine if the attack was justifiable; and
• The attack must be directed at an interest which legally deserves to be protected;[3] and
• The attack must be imminent but not yet completed;[4] and
• Private defence must be directed at the attacker;[5] and
• The defensive act must be necessary in order to protect the interest threatened (It must be the only way in which the attacked party can avert the threat to his rights or interests.);[6] and
• There must be a reasonable link between the attack and the defensive act.[7]
The last two requirements listed as “e” and “f” will in most cases be the two problematic requirements. To decide if the defensive act was necessary in the circumstances will be determined after the fact (post facto). This, off course makes it very difficult for a person to determine in the heat of the moment if the act will be necessary. The court will take all the facts of the matter in consideration and then decide if the person’s actions were necessary to protect his interest.
The next problematic requirement is that there must be a reasonable link between the attack and the defensive act. Here the same difficulties will arise as above, because the courts will determine the reasonability of the defence in relation to the defence after the fact. It stands to reason that there ought to be a certain balance between the attack and the defence. After all, you may not shoot and kill another person who strikes you with a fly-swatter.
If the ambit of self-defence is understood properly and used correctly, we as South Africans will, to a certain extent, be able to protect ourselves.________________________________________
[1] This definition was accepted by the court in Engelbrect 2005 2 SACR 41(W)par 228. (Snyman par 3 ,page 103, fifth edition).
[2] Goliath 1972 3 SA 1 (A)10. (Snyman par 2, pg 104, fifth edition).
[3] Kamffer 1965 3 SA 96 (T) 100. (Snyman par 1, pg 106, fifth edition).
[4] Van Wyk 1967 1 SA 488 (A) 504 E- F
[5] Par 2; pg 107 Snyman fifth edition.
[6] Engelbrecht 2005 2 SACR 41 (W) par 351. (par 3, pg 107, Snyman fifth edition)
[7] Trainor 2003 1 SACR 35 (SCA) 41h-i.(par 2, pg 109, Snyman fith edition)
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.