Chapter 6 - Unlawfulness II

Question 1

What is Necessity?

Answer 1

A person acts out of necessity, and her conduct is therefore lawful, if she acts in the protection of her own or somebody else’s life, physical integrity, property, or other legally recognised interest that is endangered by a threat of harm that has already begun or is immediately threatening and that cannot be averted in any other way, provided that the person who relies on the necessity is not legally compelled to endure the danger, and the interest protected by the act of defense is not out of proportion to the interest threatened by such an act.

Question 2

What are the differences between private defence and necessity

Answer 2

1. The origin of the situation of emergency: Private defense always stems from an unlawful attack. Necessity, on the other hand, may stem either from an unlawful human act or from chance circumstances, such as natural occurrences.
2. The object at which the act of defense is directed: Private defense is always directed at an unlawful human attack. Necessity, on the other hand, is either directed at the interests of another innocent third party or merely amounts to a violation of a legal provision.

Question 3

List the requirements for the plea of necessity

Answer 3

1. Legal interest threatened
2. May also protect another
3. Emergency already begun but not yet terminated
4. May rely on necessity even if personally responsible for emergency
5. Not legally compelled to endure danger
   6.Only way to avert anger
6. conscious of fact that emergency exists
7. Not more harm caused than is necessary

Question 4

What are the different possible effects of consent?

Answer 4

1. There are crimes in respect of which consent does operate as a defense, but where such consent does not operate as a ground of justification. if forms part of the definitional elements of the crime instead.
2. There are crimes in respect of which consent by the injured party is never recognised as a defense.
3. There are crimes in respect of which consent does operate as a ground of justification. Well known examples of such crimes include theft and malicious injury to property.
4. There is a group of crimes in respect of which consent is sometimes regarded as a ground of justification and sometimes not.

Question 5

What are the requirements for a valid plea of consent?

Answer 5

1 Given voluntarily
2. Given by a person who has certain minimum mental abilities
3. Based upon knowledge of the true and material facts
4. Given either expressly or tacitly
5. Given before the commission of the act
6. Given by the complainant herself

Question 6

Explain presumed consent

Answer 6

Thabo may rely on the ground of justification of presumed consent if he acts in defense of, or in furtherance of, Lebo’s interests, In situations where Lebo’s consent to act is not obtainable, there is nonetheless, at the time of Thabo’s conduct reasonable ground for assuming that Lebo would indeed consent to Thabo’s conduct had she been in a position to make a decision about it.

Question 7

What are obedience orders?

Answer 7

An otherwise unlawful act may be justified by the fact that the person, when committing the act, was merely obeying the order of somebody else to whom he was subordinate, This ground is called obedience to orders

Question 8

What is official capacity?

Answer 8

An act that would otherwise be unlawful is justified if Thandi, by virtue of her holding a public office, is authorised to perform the act , provided the act is performed in the course of exercising her duties.