Wrongfulness: Grounds of Justification - Provocation

Question 1

Provocation
Ipeleng Gopane
85BH3RTR3

Answer 1

Grounds of justification -

Provocation

Question 2

Define provocation

Answer 2

Provocation takes place when the defendant is provoked or incited by words or actions to cause harm to the plaintiff

Question 3

What are the uncertainties about the correct legal basis for defence of provocation?

Answer 3

▪As a ground excluding fault or
▪Merely to mitigate damages
《▪》 Preferred view: as a ground of justification it renders the defendant’s conduct lawful (I.e. negates wrongfulness).

Question 4

Case law for the preferred view that provocation can negate wrongfulness?

Answer 4

Bester V Calitz (1982)

Question 5

How is the ground of justification of provocation assessed?

Answer 5

Objectively, weighing provocative conduct of the plaintiff against the reaction to it
- using the criterion of reasonableness- B/M test

Question 6

Distinguish between defence and provocation

Answer 6

• Defence: an act of defence against imminent attack or attack that has not yet ceased
• Provocation: an act of revenge immediately after provocative conduct has already terminated

Question 7

Provocation may be raised against action for violation of any aspect of personality e.g.?

Answer 7

▪Honour
▪Reputation
▪Physical intergrity

Question 8

What is the general rule of provocation in the case of physical assault?

Answer 8

•Provocation is not a complete defence where provocative words proceeded a physical attack
Insult 🤐 vs 🤕 Assault

Question 9

There are three ways in which provocation can take place :

Answer 9

○ A assaults B and B assaults A back
○ A insults B BUT B assaults A back
○ A insults B and B insults A back

Question 10

Where A assaults B and B assaults A back

Such defence may be considered as a complete defence of the two requirements are met:

Answer 10

♡The provocative conduct is reasonable

♡The conduct of provoked defendant(B) must be reasonable

Question 11

Where A insults B and B insults A

Req. For provocation as defence of bodily infringement:

Answer 11

◇ A reasonable person would have acted in the same way

◇ Defamation must stay within the limits

Question 12

Where A insults B BUT B assaults A back

Answer 12

Provocation in this case is NOT a complete defence

Question 13

Facts of the case (Bester V Calitz)

Answer 13

☆Plaintiff claimed satisfaction for iniuria –grounds: Adultery &; Contumelia
☆Defendant instituted a counter claim against plaintiff, grounds: defamation and iniuria
☆P alleged being provoked (adultery & contumelia)
~~main claim succeeded but counterclaim failed as a result of provocation~~

Question 14

Bester V Calitz

Court held??

Answer 14

~Provocation was a ground of justification- test?? reasonable person would have been provoked in the circumstance

Question 15

Difference between defence and provocation

Case???

Answer 15

R V Van Vuuren

Question 16

Facts:

R V Van Vuuren

Answer 16

• V grabbed B’s arm after he insulted his wife
• V charged with assault
• V raises private defence as g.o.j ~~grabbed the arm to stop the insults

Question 17

Court held??

R V Van Vuuren

Answer 17

~Court accepted private defence as V acted to avoid further damages

IF verbal abuse had stopped prior grabbing the arm then V WOULD NOT be able to claim for p.defence but prov.(act out of revenge)

Question 18

Would V be allowed to use provocation as defence (R V Van Vuuren)

Answer 18

NO, court doesn’t allow physical attack on retaliation to verbal prov.