← The Criminal Courts

District 3

The Justification Quarter

The conduct fits the definition of a crime — but is it nonetheless lawful because a ground of justification applies?

1

Unlawfulness

The Boni Mores Arch

Unlawfulness = conduct that conflicts with the legal order.

What unlawfulness means

Conduct that satisfies the definition of a crime is presumed unlawful — but it may be justified. Unlawfulness is judged against the legal convictions of the community (boni mores). A ground of justification EXCLUDES unlawfulness: the conduct is objectively lawful, and no crime is committed.

The main grounds

  • Private defence (self-defence and defence of others)
  • Necessity (including duress/compulsion)
  • Consent (where the interest may lawfully be waived)
  • Official capacity / statutory authority (e.g. lawful arrest)
  • Obedience to lawful orders
  • De minimis non curat lex (trifling infringements)

Grounds of justification exclude unlawfulness. If a ground applies, the conduct is lawful and there is no crime — this is different from excluding fault.

Exam trap: a ground of justification excludes UNLAWFULNESS (objective). A mistaken belief in such a ground (putative defence) does not make the conduct lawful — it goes to FAULT (De Oliveira).

2

Private defence

The Private Defence Bastion

Warding off an unlawful attack on a protected interest.

Requirements — the attack

  • The attack must be UNLAWFUL
  • It must threaten a legally protected interest (life, bodily integrity, property, etc.)
  • It must have commenced or be imminent (not a past or future attack)

Requirements — the defence

  • Directed against the attacker
  • NECESSARY to avert the attack (no reasonable alternative)
  • A reasonable/proportionate response to the attack

Defence of others

Private defence is not limited to protecting oneself — a person may defend a third party against an unlawful attack to the same extent that the victim could defend themselves (Patel).

Private defence: (unlawful attack + protected interest + commenced/imminent) met by (defence against the attacker + necessary + proportionate). Exceeding these bounds forfeits the justification.

Key Case — Private Defence

R v Patel1959 (3) SA 121 (A)Private defence extends to the defence of another person on the same basis as self-defence.

Facts. The accused used force to protect another person from what he perceived to be an unlawful attack, and the question was whether private defence extends to the protection of a third party.

Legal question. May a person rely on private defence when acting to protect not himself but another person from an unlawful attack?

Judgment. The Appellate Division confirmed that private defence extends to the defence of others on the same basis as self-defence.

Significance. The standard authority that private (self-)defence includes defence of a third person, subject to the ordinary requirements and limits of private defence.

Exam tip. Use Patel to show private defence covers the defence of others. Still apply the ordinary requirements: an unlawful attack, on a legally protected interest, met by defensive conduct that is necessary and proportionate.

3

Necessity

The Necessity Crossing

Averting a threat — even, exceptionally, by killing.

What it is

A person acts out of necessity where they infringe a legal interest to AVERT a threat to their own or another's interests. The threat may arise from circumstances (a natural danger) or from human compulsion (duress). Unlike private defence, the harm may fall on an INNOCENT third party.

Requirements

  • A threat to a legally protected interest that has begun or is imminent
  • The threat was not caused by the accused's own fault
  • The accused was not legally obliged to endure the danger
  • The act was necessary and the only reasonable means to avert the threat
  • The interest protected was not out of proportion to the interest sacrificed

Necessity and murder

Necessity (compulsion) can, exceptionally, be a COMPLETE defence even to murder — but only where a reasonable person in the same position would also have yielded to the threat (Goliath). The standard is strict.

Necessity may justify harming even an innocent party, and can in principle excuse murder (Goliath) — but only within strict limits and where a reasonable person would also have yielded.

Key Case — Necessity

S v Goliath1972 (3) SA 1 (A)Necessity (compulsion) can be a complete defence even to murder, where a reasonable person in the accused's position would also have yielded to the threat.

Facts. Two men were threatened by a third armed man who ordered them to kill a fourth person or be killed themselves. One of the two participated in the killing; the other did not. The participant was charged with murder and raised necessity as a defence.

Legal question. Can necessity operate as a complete defence to murder, and if so, under what conditions?

Judgment. The Appellate Division held that necessity could in principle be a complete defence to murder in truly exceptional circumstances. The convicted accused's appeal was allowed — he had been threatened with his own death and could not reasonably have been expected to resist.

Significance. The leading authority allowing necessity as a complete defence to murder in SA law — highly exceptional. Establishes that even the most serious crime can yield to necessity where the threat is irresistible and imminent. Contrasted with situations where the accused could have avoided the dilemma.

Exam tip. Necessity as a complete defence to murder: available in principle but applied very strictly. The reasonable person standard is critical — would a reasonable person also have yielded? Note the difference from private defence (which requires an unlawful attack by another person).

Exam trap: private defence is directed at an unlawful ATTACKER; necessity may sacrifice an INNOCENT interest. Choose the right ground for the facts.