Grounds Of Justification Flashcards
What is a ground of justification
Special circumstances that render conduct which appears to be wrongful (due to the violation of interests) lawful due to the fact that it is not a viiolation of a norm and it is therefore not unreasonable or contra bonos mores. Grounds of justifications therefore excludes wrongfulness.
Define private defence
Private defence is present when the defendant directs his actions against another person’s actual or imminently threatening wrongful actions to protect his own legitimate and legally recognised interests or the interests of another.
Requirements of private defence
Attack
- The attack must consist of human conduct
- The attack must be wrongful (infringe or threaten a legally recognised right without justification)
- The attack must have commenced or be imminently threatening, but must not yet have ceased when the defendant retaliates.
Defence
- The defensive conduct must be aimed at the aggressor.
- The defence must be necessary to protect the threatened right.
- The defence must not be more harmful than necessary to ward off the attack.
Define necessity
A state of necessity exists when a person is placed in a position by superior force that he can only protect his own legally recognised interest(s) (or those of someone else) by reasonably infringing the interests of an innocent 3rd party.
Requirements for necessity
- The state of necessity must exist or be imminent.
- The legally recognised interests of the actor or someone else must be endangered as a result
- The act in necessity must be necessary to protect the threatened interest.
- The means used to avert the danger must not be excessive, but must be reasonable in the circumstances.
Private defence against animal
One of the requirements of the attack in the case of private defence is that it must be directed against a human attack. Aggression by animals doesn’t constitute an attack, since an animal cannot act for the purposes of the law of delict. Necessity may be the appropriate ground of justification against aggression by an animal. Where a human uses an animal as an instrument in an attack, private defence can be raised since the defence is directed against the human conduct.
In the case of defence, can a person protect his property by killing the attacker
Considered in Ex Parte Minister van Justisie: in re S v Van Wyk.
Before this case, one couldn’t rely on private defence when killing someone to protect property.
All the judges agreed that one could in principle rely on this defence in such circumstances, since commensurability of interests is not a requirement for the defence. However, no more harm than reasonably necessary is a requirement and therefore the real question is whether the defendant in question exceeded the bounds of the defence and whether the steps taken were the only reasonable method to ward off the attack.
In Van Wyk it was held that the steps taken by setting up the gun in the shop to protect it from thieves was the only reasonable alternative since various other methods failed and the defendant couldn’t be expected to sleep in the shop. He also put up warning signs.
Define provocation
Where a defendant is provoked or incited by words or conduct to cause harm to a plaintiff
Provocation requirements - assult
- The nature of the provocative conduct must be such that the reaction of the provoked defendant by physically assaulting the plaintiff is reasonable.
- The conduct of the provoked defendant must be an immediate and reasonable retaliation against the body of the plaintiff.
Provocation requirements - defamation and insult
- The provocation must be of such a nature that a reasonable person in the position of the defendant would also have reacted by defaming or insulting the person.
- Defamation or insult in retortio must stay within the prescribed limits. Limits not exceeded where the conduct in retaliation follows immediately or directly and where the defamation or insult in retortio is not out of proportion to the provocative conduct.
Consent defined
Where a person legally capable of expressing his will gives consent to injury or harm (or the risk) thereof and consequently the causing of such harm will be lawful.
Consent requirements
- Consent must be given voluntarily or freely
- Person giving consent must be legally capable of expressing will.
- Consenting person must have full knowledge of the extent of the possible prejudice
- Consenting person must realise and fully appreciate the nature and extent of the harm
- The person must subjectively consent to the prejudicial act.
- The consent must be permitted by the legal order and not be contra bonos mores.
Consent and sports
Consent to bodily injury or the risk thereof is usually contra bonos mores, unless the contrary is evident, such as the case of participation in lawful sports.
In Roux a rugby player was seriously injured after a dangerous and illegal scrum manouvre. He was successful in claiming damages. Guidelines for the wrongfulness enquiry in respect of rugby matches was provided:
1. If rules of game were observed, no claim can succeed even if serious injury.
2. the fact that rules weren’t observed doesn’t automatically lead to wrongfulness since the legal convictions of the community may regard such conduct as inherent in a rugby game.
3. Only flagrant disregard of rules with aim of causing injury will be regarded as wrongful.
4. Then the focus is on the malicious motive of the defendant which may be indicative of wrongfulness.
In Boshoff, by contrast, a participant in a game of squash was struck over the head by a raquet. He was unsuccessful in claiming damages, since the court held that he had consented to the risk of injury and such consent was not contra bonos mores.
X’s secretary, Y, commits an offence. X gives her a choice: either Y agrees to a hiding, or she will be fired. Y chooses the former option and X gives her the hiding. Y institutes the actio iniuriarum against X. Will X succeed with a defence based on consent? Briefly discuss with reference to case law.
Consent to bodily injury is in principle contra bonos mores.
It is not readily accepted that a person consented to bodily injury.
One of the requirements of valid consent is that it must be given freely or voluntary
Should a person be forced to consent in some manner, free consent is absent.
In McCoy it was held that where an employee consents to a hiding for fear of losing his job, such consent is not given freely and therefore the employer cannot rely on consent as a ground of justification.
Compulsion can take various forms, such as moral, social or economic coercion.
Anna would like to have her earlobes pierced so that she can wear fashionable earrings. Andrew, her boyfriend, who is a third-year law student, offers to do this for her. She is only too happy to accept his offer. The procedure goes quite well, but a few days later the wounds have turned septic and medical treatment is necessary. Anna ends the relationship and institutes a delictual action for infringement of personality interests and to recover medical costs against Andrew. Andrew wishes to raise consent as a ground of justification. What are the merits of his defence? Substantiate your answer.
There are two types of consent - consent to injury and consent to risk of injury - principles applicable largely the same.
At face value it may appear that she consented to risk of injury, but requirements for valid consent must be met.
1. consent given freely and voluntary, not under compulsion or pressure
2. person giving consent must be capable of volition
3. person must have full knowledge of nature and extent of potential prejudice
4. person must realise and appreciate fully what the harm entails.
5. person must subjectively give the consent
6. consent must be permitted by legal order and not be contra bonos mores.
consent to bodily injury usually contra bonos mores, save for some exceptions:
1. medical treatment (Castell)
2. organised sport (Roux, Boshoff)
3. where harm of very minor nature
Septic wounds not minor - consent absent OR didn’t have full knowledge of nature and extent of harm
Therefore consent absent.
