Wrongfulness: Grounds of Justification - Necessity

Question 1

Fill in the missing words.

Necessity exists when the a) ____________ is placed in such a position by b)______________ force that he is able to c)___________ his legally recognized interests only by reasonably d)__________the interests of an e)____________ person.

Answer 1

A)defendant 
B)superior 
C)protect
D)violating 
E)innocent

Question 2

List the guidelines for necessity.

Answer 2

Guidelines for necessity:

1. Actual state of emergency
2. Determined Objectively
3. Present
4. Protect own interest and those of others
5. Any legally protected interest
6. Not legally compelled to endure
7. Proportionate

Question 3

In terms of proportionality, what is the difference between Necessity and Private Defence ?

Answer 3

In Necessity, proportionality is absolute.

Where as in Private Defence, proportionality is not entirely regarded.

Question 4

State whether the answer is true or false.

The distinction between private defence and necessity is that in necessity, when acting in defence the actor’s conduct violates the interests of an innocent third party.

Answer 4

True

Question 5

Define the concept Putative Necessity.

Answer 5

Putative Necessity refers to an event when the defendant thought at the time, that an attack was to happen, from the third party.

Question 6

Mary, a Primary School teacher, thinks that one of her learners, who has fainted, is in mortal danger. She is under the impression that her learner swallowed a whole lot of pain tablets, which she had in her drawer. She rushes the learner to the hospital and on her way, speeding and skipping red traffic lights, she causes a collision.

In actual fact her learner just swallowed a packet of peppermints and fainted because of bad news she received about her grandmother’s passing.

Is this a case of necessity? Is Mary acting out of necessity?

Answer 6

It was most likely an act of Putative Necessity as the defendant acted subjectively and thought that her learner was in mortal danger, while in actual fact she was not. Therefore exceeding the speed limit and endangering the life of another.

This would not be regarded as necessity, as OBJECTIVELY speaking the learner’s life was never at risk.

See what your textbook says about the Pretorius case.

Question 7

Does Putative necessity constitute as necessity ?

Answer 7

No, it does not because necessity must be determined objectively.

Only actual necessity is important and not whether the defendant believed it to exist.

Putative necessities may be relevant where fault of the defendant is being determined.

Question 8

What was the facts of the case in S v Pretorius 1975 (2) SA 85 (SWA) ?

Answer 8

In S v Pretorius, the father exceeded the speed limit and believed his child swallowed pain tablets and thought that the child would die.

Question 9

What was the Court’s decision in S v Pretorius regarding Putative necessity?

Answer 9

The court held that the onus of proof in a defence of necessity rests on the State.

Putative necessity is not necessity and objectively the child’s life was never in danger. It was based on a subjective belief.

Question 10

Which court decision is similar to that of S v Pretorius ?

Answer 10

Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Rieck 2007 2 SA 118 (SCA) 122.

Question 11

What was the legal question in S v Goliath 1972 3 SA 1 (A) ?

Answer 11

Could homicide be justified by necessity?

Question 12

Which Case Law is applicable to the Court Decision below ?

A person may kill an innocent person under compulsion to protect his own life.

Answer 12

S v Goliath 1972 3 SA 1 (A)

Question 13

Necessity is a ground of justification. True or False ?

Answer 13

True

Question 14

Does necessity in general comply with the Constitution in terms of the Carmichael v Minister of Safety and Security case ?

Answer 14

In Carmichele v Minister, the Constitutional Court stated unequivocally that where common law deviates from the spirit, purport and objects of the Bill of rights, the courts have a duty to develop the common law to eliminate the deviation.

In this concept Necessity protects the interests of the defendant and or someone else and therefore complies with the Bill of Rights.

Question 15

List the four requirements of Necessity

Answer 15

1. The state of necessity must exist or be imminent.
2. A legally recognized or protected interest of the actor or someone else must have been endangered
3. The act in necessity must have been endangered.
4. The act in necessity must have been necessary to protect the threatened interest.
5. The means used for averting the danger must not have been excessive but reasonable in the circumstances.

Question 16

Give examples of interests that the defendant may protect someone else or himself from being endangered.

Answer 16

• Life
• Physical integrity
• Privacy
• Feelings

Question 17

List case law that is relevant to this ground of justification. (Must be able to summarize each of them)

Answer 17

• S v Goliath 1972 3 SA 1 (A)
• S v Pretorius 1975 2 SA 85 (SWA)
• Rv Dudley and Stephens (1884) 14 QBD 273

Question 18

With regards to Proportionality, fill in the missing words of what the court found in R v Dudley and Stephens (1884) 14 QBD 273. On page 101, footnote 477 the textbook.

The court a)__________ a plea of necessity as a b)__________ against a murder charge and found that necessity can never c)___________ the killing of an d)___________ person.

Answer 18

A) rejected
B) defence
C) justify
D) innocent

Question 19

Is the state of necessity determined subjectively or objectively ?

Answer 19

It is determined objectively as the court uses objective test to determine wrongfulness and subjectivity of the defendant does not justify the conclusion of necessity.

Question 20

What is a common example of a subjective factor when it come to Putative necessity?

Answer 20

Fear or terror

Question 21

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Full name: Natasha Nekuta

Answer 21

Necessity as a ground of justification

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