Unlawfulness

Question 1

Why are there defences to unlawfulness?

Answer 1

Despite perpetrating prohibited conduct or causing an unlawful consequence, an accused may escape criminal liability by raising a recognised defence excluding the unlawfulness of the conduct. Some circumstances may justify the performance of the conduct.

Question 2

List all of the defences negating unlawfulness

Answer 2

1) consent
2) disciplinary chastisement
3) entrapment
4) impossibility
5) necessity
6) negotiorum gestio
7) obedience to superior orders
8) private defence
9) public authority
10) trivial instances (de minimis non curat lex)

Question 3

Elaborate more on 1) consent

Answer 3

Although a person can consent to have certain rights curtailed, in delict for example, crime is considered to be a harm to the community, and so it does not lie within the power of the victim of a crime to render the act not unlawful by consenting to suffer the harm. Hence, consent on the part of the victim will not serve to excuse the crime of the offender. For example, a person cannot choose to be murdered and have the murderer preclude criminal liability by way of the deceased’s consent. However, there are instances where consent of the victim will negate unlawfulness.

Question 4

What are the requirements for consent?

Answer 4

a) the complainant’s consent in the circumstances must be recognised by law as a possible defence
b) it must be real consent
c) it must be given by a person capable in law of consenting

Question 5

How does consent negate the crime of rape and theft?

Answer 5

Crimes which involve the absence of consent (e.g. rape) require that absence of consent be proven beyond reasonable doubt. However, consent given by a person over the age of 16 to sexual penetration negates the crime of rape. Similarly, for theft, the presence of consent given by the owner to the accused may negate the crime of theft.

Question 6

Can one consent to medical treatment?

Answer 6

One may also consent to be injured during the course of medical treatment, provided that the medical practitioner has informed the patient of the material or serious risks of harm involved in medical procedures. Where the patient is unconscious, an operation may still be justified on the ground of necessity. Although one cannot consent to being killed, they may consent to being denied life support should they sustain life-threatening injuries/ailments.

Question 7

How about consent to sport and entertainment?

Answer 7

Lawful sport may be voluntarily played on the assumption that risk of bodily injuries incurred while the game is being played, will be regulated according to the rules.

Question 8

When may consent be a defence?

Answer 8

1) rape
2) theft
3) medical treatment
4) sports and entertainment
5) death (withdrawing life support)

Question 9

What were the facts and issue in Clarke v Hurst?

Answer 9

Dr Clarke had signed a living will, requesting of his family and physician that, in the event of there being no reasonable expectation of his recovery from an extreme physical or mental disability, he be allowed to die rather than live by artificial means. His wife duly applied to be appointed his curatrix personae, with the power, even were this to result in his death, to authorise the discontinuance of his treatment. The Attorney-General opposed the application, arguing that Mrs Clarke was effectively asking for a declaratory order to end a life, and declined to undertake not to prosecute if this should transpire.

Can one consent to their own death and absolve any participants in their death from criminal liability for murder/culpable homicide etc.?

Question 10

What was held in Clarke v Hurst?

Answer 10

There may be circumstances when allowing a terminally ill person to die with dignity under controlled medical conditions, might not be considered contrary to the legal convictions of the community, and thus may not be considered wrongful. Some of the circumstances might include:

1) good faith on the part of the medical practitioners administering the procedure, 2) approval of the procedure by close family/court,
3) the existence of a living will agreeing to the procedure or
4) the fact that the procedure involves an omission rather than a positive act causing death.

On the facts, the application was therefore granted, and the court ordered that Mrs Clarke would not be acting wrongfully or unlawfully if she authorises or directs the discontinuance of the naso-gastric or any other non-natural feeding regime for the patient and/or if she withholds agreement to medical or surgical treatment of the patient save such treatment as may seem to her appropriate for the comfort of the patient.

Question 11

Elaborate more on 2) real consent

Answer 11

Real consent can either be unilateral or mutual, as required by law. Active consent must be required, not submission. Where one does not know the risks involved, they cannot consent to the harm caused e.g. being hit with a pillow that actually contains bricks. Having sex with an HIV positive person. If one fails to disclose their HIV status and has unprotected non-consensual sex, they are guilty of both rape and attempted murder [Nyalungu].

Question 12

Elaborate on 3) persons capable of consenting

Answer 12

People who lack capacity include:

1) youth - children below the age of 12 cannot consent
2) mental defect and intoxication
3) unconsciousness
4) substituted consent

Question 13

Is disciplinary chastisement a recognised defence?

Answer 13

Corporal punishment is illegal in South Africa, both as a criminal punishment, in schools [Christian Education v Minister of Education] and even in private homes.

Question 14

What were the requirements for disciplinary chastisement?

Answer 14

a) guardian
b) corrective
c) reasonable/moderate
d) bona fide

Question 15

Provide a case summary of YG v S

Answer 15

The child, M, was sitting on YG’s bed using the family iPad. The appellant entered the room and accused M of watching pornographic material, which is strictly against the Muslim faith. M denied that he was watching pornographic material, but the appellant persisted with the accusation. When M refused to admit to the accusation, the appellant struck M in the chest multiple times. M lost his balance and fell off the bed, striking his head against the door of the bedroom. While on the floor, the appellant kicked M in the chest four times. The appellant was tried for assault with intent to do grievous bodily harm. As his defence, he argued that he did not intend to assault M. Rather, he ‘intended to discipline him out of concern to show him what is right and wrong’. The appellant testified he had done nothing more than exercise his right as a parent to chastise M by administering reasonable corporal punishment for the indiscipline noted.

Is there ever justification for permitting the use of corporal punishment against a child, which would otherwise constitute assault but for the invocation of the defence of disciplinary chastisement?

While parents have a prerogative power to discipline their child, the defence should not be invoked to negate an unjustifiable breach of the rights of the child. The Constitution is explicit in its exposition of such rights, conferring equal protection from ‘all forms of violence’ whether from a ‘public or private source’. Furthermore, even where the level of chastisement inflicted is adjudged to fall within the ambit of ‘reasonable’, such an act invariably involves a measure of violence and thus breaches the physical integrity of the child. On the basis of such reasoning, the Court determined the defence to be no longer applicable due to its fundamental incompatibility with the rights conferred to every individual citizen under the Constitution.

Question 16

Is 3) entrapment a defence?

Answer 16

Where a police officer seeks to secure a conviction by inducing an innocent part to engage in criminal conduct, the party shall not be held criminally liable. This defence is not recognised in SA law, and is governed by Section 232A of the Criminal Procedure Act.

Question 17

Elaborate more on 4) impossibility

Answer 17

If it is physically impossible for the accused to comply with a positive obligation imposed by law, then they cannot be held criminally liable (for example, if you cannot pay taxes because you are in a coma). It is not sufficient for it to be extremely difficult to do. Rather, it must be physically impossible.

Question 18

What are the requirements of impossibility?

Answer 18

a) there must be a positive obligation imposed by law,
b) compliance with which was physically impossible
c) through no fault on the part of the accused

Question 19

Define 5) necessity

Answer 19

The defence arises when a person, confronted with a choice between suffering some evil and breaking the law in order to avoid it, chooses the latter alternative. A reasonable person must have been unable to resist the threats that the accused faced. An exception to this defence involves gang members, who know that they might be compelled to act unlawfully.

Question 20

What are the requirements of necessity?

Answer 20

a) a legal interest of the accused must have been endangered
b) by a threat which had commenced or was imminent,
c) but which was not caused by the accused’s fault;
d) it must have been necessary for the accused to avert the danger;
e) and the means used for this purpose must have been reasonable in the circumstances

Question 21

Is there a legal obligation to suffer harm?

Answer 21

There may be circumstances where an accused is legally obliged to suffer the harm and so may not attempt to avoid it e.g. X awaiting a sentence of imprisonment, or a police officer running away from danger whilst on duty. However, there is no general duty to endure harm. Extreme poverty is not a defence to theft, and so people are obliged to endure starvation.

Question 22

Elaborate more on a legal interest

Answer 22

The harm must be of a physical nature e.g. death, serious bodily injury, damage to property, family life, personal freedom. Economic necessity is not recognised by law [Canestra].

Question 23

Can one kill out of necessity?

Answer 23

Yes [S v Goliath]

Question 24

Provide a case summary of S v Goliath

Answer 24

X and Y came upon Z one evening. Y accosted Z and asked him for some money and a cigarette. When Z replied that he had no money, Y stabbed him in the chest and ordered X to tie him up under threat that unless X obeyed, Y would stab X to death. X then bound Z’s arms behind his back and Y proceeded to stab Z twelve more times until he collapsed and died. The trial court found Y guilty of murder and sentenced him to death, but acquitted X on the ground that he had acted under Y’s compulsion.

Was compulsion a defence to murder?

The majority held that compulsion not being a defence to murder is only obiter dicta. Most other important continental countries regarded compulsion (such as a death threat) as a valid defence excusing criminal liability for murder. The whole factual situation must be closely examined and judged with the greatest circumspection, when determining whether the defence of compulsion stands. In general though,
the ordinary person views their life as being more valuable to them than that of another. Left open whether compulsion would exclude the unlawfulness and fault elements of liability, and thus failed to determine where the true basis of this defence lay.

The minority held that compulsion cannot justify the killing of an innocent person, unless the intent of the perpetrator was wholly excusable because of the absence of a blameworthy state of mind. Hence, he treated compulsion as a factor affecting mens rea rather than the unlawfulness of the conduct.

Question 25

Elaborate more on 6) negotiorum gestio

Answer 25

When a person performs an otherwise unlawful act in the interest of another person with the intention of benefitting that other person, but without the latter’s knowledge or consent, one may escape criminal liability.

Question 26

What are the requirements for 7) obedience to superior orders

Answer 26

a) the order must emanate from a person lawfully placed in authority over the subordinate
b) the subordinate must have been under a duty to obey the order (objective)
c) the subordinate must have done no more than was necessary to carry out the order

Question 27

Elaborate more on 10) trivial instances

Answer 27

Mild criminal offences such as slapping a child’s hand or pushing a loved one in a heated confrontation will often not attract criminal liability, due to the insignificance of the alleged crime. This does not negate unlawfulness, but rather allows it to go unpunished.

Question 28

What are the requirements for 8) private defence?

Answer 28

1) there must be evidence that there was an unlawful attack
2) upon a legally protected interest, and the
3) defence was necessary to avert the attack
4) must be a reasonable response to the attack and
5) must be directed against the attacker

Question 29

What are some of the legally protected interests worthy of private defence?

Answer 29

Life and limb, property and the interests of third parties

Question 30

What are the requirements for private defence of property?

Answer 30

1) the property was
2) presently
3) in danger of damage or destruction
4) that was unlawful

Question 31

Provide a case summary of Van Wyk

Answer 31

Shopkeeper plagued by a spate of burglaries. He repeatedly attempted to curb the burglaries, by using a watchdog and employing a night-watchman. He put up a sign warning that anyone who entered did so at their own risk, and that there was a shotgun inside. The shotgun contraption killed an intruder.

a) can a person rely on private defence where they kill or wound another in order to protect their property i.e. how do we balance the right to property with the right to life?
b) were the bounds of private defence exceeded in this instance i.e. was the reliance on a shotgun to protect his property justifiable in the circumstances?

a) all concurred that the lethal force may be used in defence of property. However, this would only be in extreme cases.
b) the court split 3-2, in favour of finding that the prosecution had not proved beyond reasonable doubt that, in the circumstances, the legitimate bounds of private defence had been exceeded

Therefore, shopkeeper successfully raised the private defence excluding unlawfulness.

Question 32

What was held in S v Walters concerning whether an intruder may be shot?

Answer 32

Kriegler J emphasised that what is material is that the law applies a proportionality test, weighing the interest protected against the interest of the wrongdoer and that these interests must now be weighed in the light of the Constitution. Hence, one may not shoot and kill an intruder who is attempting to flee.

Question 33

Can the initial attacker invoke private defence?

Answer 33

In principle, the person who initiates the unlawful attack cannot invoke private defence in responding to the defence of the victim (i.e. X attacks Y, Y pulls out a knife to defend themself, X shoots Y). However:

1) if the defence exceeds the bounds allowed by the law, then the right of private defence is reinstated by the excessive defence of the original victim.
2) if the original aggressor withdraws from the attack, then the unlawfulness of his attack is terminated, and his right to act in private self-defence is restored.

Question 34

Elaborate more on 9) public authority

Answer 34

The state is authorised to use force, even deadly force, on a person who flees or resists arrest. State servants are still bound by statute.

a) indemnity provision
b) diplomatic or consular immunity
c) court authority
d) lawful arrest (limited by s49 of the CPA)