Unlawfulness

Question 1

Grounds of Justification:Impossibility

How does impossibility operate as a ground of justification?

Answer 1

excludes unlawfulness in cases where X’s conduct is an omission and objectively impossible to act positively where a legal duty to act positively
- Eg: X must pay maintenance but fails to pay such because he doesn’t have enough money

Question 2

Grounds of Justification:Impossiility

How does impossibility operate in instances of omissions?

Answer 2

impossibility only applies to omissions-where there was a legal duty on X to act positively and he/she failed.
-RELATIVE impossibility
-injunctions and not a mere prohibition and it must be objectively impossible for X to comply

Question 3

Grounds of Justification:Impossibility

What did the Mxhosa case state regarding impossibility and conflicting legal interests?

Answer 3

-accused charged with prohibited access to certain areas > he was charged for being
in an area past curfew > he was in that area because he was charged another offence for which he received bail > had to report to a police station in that area before 7pm > he was confronted with 2x conflicting legal duties
– He decided bail condition was the more important duty - He was charged but he raised impossibility as a ground of justification (impossible to not be in
that area, had to report for bail condition)
- Court stipulated: 2x conflicting legal duties > granted defence of impossibility and found him not guilty
- Bail condition: injunction (legal duty to report every evening, failure of which result in withdrawal) & But he was prohibited in law to be there at a certain time

Question 4

Grounds of Justification:Impossibility

What is Absolute Impossibility?
What is Relative Impossibility?

Answer 4

(i) Absolute Impossibility: Involuntariness
(ii) Relative Impossibility: Justification

Question 5

Grounds of Justification:Consent

How does consent operate as a ground of justification?

Answer 5

1.Consent by the person who would otherwise be regarded as the victim of X’s conduct may, in certain cases, render X’s otherwise unlawful conduct as lawful > but this defence only operates to a very limited degree
2.Consent must be given voluntarily without coercion.
- Person giving consent must be mentally capable of giving consent
- Consenting party aware of the true and material facts

Question 6

Grounds of Justification:Unlawfulness

What are the crimes in which consent can operate as a ground of justification?

Answer 6

A.Crimes against an individual
-Crimes where absence of consent forms part of definitional elements eg.Rape
-Crimes where consent can never e a defence eg.murder
-Crimes where consent is a ground of justification eg.theft/injury to property
-Crimes where consent is sometmes a justification eg.assault

B.Crimes against the community/state
-consent is not a defence

Question 7

Grounds of Justification:Consent

What is Putative consent?

Answer 7

• where X subjectively believes there is valid consent, but objectively viewed there is none-X’s act remains unlawful but fault could be excluded

Question 8

Grounds of Justification:Unauthorised administration

What is unauthorised administration?

Answer 8

If X commits an act which infringes the interests of another (Y), and X’s act thereby accords with the definitional elements of a crime, her conduct is justified if she acts in defence of, or in the furthering of, Y’s interests, in circumstances in which Y’s consent to the act is not obtainable but there are at the time of X’s conduct reasonable grounds for assuming that Y would indeed have consented to X’s conduct had she been in a position to make a decision about it.

Question 9

Grounds of Justification: Unauthorised administration

What are the requirements for unauthorised administration?

Answer 9

1. Emergency
2. Incapable of Consenting
3. Absence of Prohibition
4. Individual’s Interest
5. Intention to Take Care

Question 10

Grounds of Justification:Authority

How does Authority operate as a ground of justification?

Answer 10

Authority/ official capacity: An act which would otherwise be unlawful is justified if X is entitled to perform it by virtue of the office she holds, provided it is performed in
the execution of her duties.

Question 11

Grounds of Justification:Authority

What are the legal requirements for authority?

Answer 11

1. Legally Recognised
2. Properly Exercised
3. Awareness of Authority

Question 12

Grounds of Justification:Authority

What did the S v Walters case state regarding authoirty/official capacity?

Answer 12

Section 49 of the Criminal Procedure Act deals with Use of Force in efffecting an arrest and it was held that the wording of this section was unconsititutional

Question 13

Grounds of Justification: Authority

What are the 3 basic requirements set out in section 49 for the use of force in affecting an arrest?

Answer 13

1.The act must be essential
2.The use of force must be essential
3.a)x must pose a threat of serious violence
b)x must have a suspicion that Y had committed a crime invoving serious odily harm in the past.

Question 14

Grounds of Justification: Authority

What did the YG case state regarding chastistement in the form of private autority?

Answer 14

WHERE IT WAS HELD THAT CHASTISEMENT BY PARENTS OF THEIR CHILDREN IS
UNCONSTITUTIONAL
- Parents no longer have right to chastise their children

Question 15

Grounds of Justification:Orders

How do Orders operate as a ground of justification?

Answer 15

-Distinguish between an act committed in obedience of a lawful order+ an act committed in obedience of an unlawful order.
1.Order comes from a person lawfully lacced in authority over x.
2.X must’ve been under a duty to obey the order.
3.order must not be unlawful
4.X must have done no more harm than is necessary to carryout the order

Question 16

Grounds of Justification:Obedience

What is mistake relating to the nature of an order?

Answer 16

If a subordinate knows an order is unlawful-can’t use obedience as a ground of justification
But if a subordinate believed an order was lawful+ had no intention to commit the crime then mistake can be raised as a defence

Question 17

Grounds of Justification

What did the Banda case state regarding obedience as a ground of justification?

Answer 17

equilibrium has to be established between order which has to be obeyed and boni
mores-distinction to be drawn between unlawful and manifestly unlawful orders-an official under no duty to obey manifestly unlawful order and compliance with manifestly unlawful order no defence.

Question 18

Grounds of Justification: Orders

What is a putative order?

Answer 18

where X subjectively believes the order is lawful, but objectively viewed it is
not- X’s act will be unlawful, but fault will be excluded.

Question 19

Grounds of justification: Other grounds

What does De Minimis Non Curat Lex mean?

Answer 19

The law does not concern itself with trivialities

Question 20

Obdedience

What are the 3 requirements laid out in the Mostert case for obdedience to be a valid defence?

Answer 20

-the court held that obedience to orders entailed an act performed by a subordinate on the instruction of a superior, and was a recognized defence in law.
-1. order must come from a person in lawful authority over the accused.
2. the accused must have been under a duty to obey the order.
3. the accused must have done no more harm than was required to obey the order.