Different GOJ part 2 Private defence

Question 1

What is the aim of the private defence as GOJ?

Answer 1

It justifies the causation of harm in protecting legally recognised interest against actual or imminent wrongful attack- the attack is generally bodily injury

Question 2

What is the effect of a private defence?

Answer 2

Is that there is no wrongfulness, and no liabiliyu which can be imposed. not reasonable to impose liability on defendant in this situation

Question 3

Distinguish private defence from necessity

Answer 3

When you act in necessity you are causing harm to an innocent person and private defence is against someone causing or threatening to cause harm in a wrongful manner

Question 4

Founding principle of Private defence

Answer 4

Set out in Ntsomi decision: the principle that right does not have to yield to wrong; the victim of a wrongful attack has been entitled to defend his person or property by virtue of a rule of law which has existed in all familiar legal system for many centuries.

Question 5

What are the requirements for private defence?

Answer 5

1. There must be human conduct
2. There must have been a wrongful attack
3. The attack must have commenced or be threatening
4. The harm brought upon defender in positive or negative manner
5. Can act in selfdefence to protect any legally protected interest
6. Defending yourself against a source of danger
7. The attacker does not have to be at fault
8. You can protect someone elses interests through self defence
9. The defensive act must be necessary or reasonable
10. The defensive act must have been aimed against the attacker
11. Proportionality

Question 6

What is putative private defence

Answer 6

Basically imaginative private defence. Example: wher someone draws what you believe to be a gun in an alley, and you respond by drawing your own gun and killing the person

Question 7

What are the two approaches for putative private defence?

Answer 7

1. The traditional common law orthodox approach

2. The reasonable person approach

Question 8

The traditional common law orthodox approach: Kgaleng v Min of SS

Answer 8

The court adopted the traditional common law orthodox approach insisting that actual danger being objectively assessed ex post facto. The conclusion that needs to be drawn that there was no actual or imminent danger. Court assessed fault and there was no intention to kill , and with regards to negligence he behaved in a way which a reasonable person would have behaved in the same situation.
Conclusion: no fault no liability

Question 9

Second Approach being the reasonable man approach in Ntanjana v Vorster

Answer 9

The court did not insists on the common law ex post facto approach. When it dealt with the private defence requirement it asked whether the defendant acted like a reasonable person would have behaved and the answer was yes. The requirement for private defence were all met, no wrongfulness because GOJ was successful and no liability.
In this case the elements of wrongfulness and fault are conflated. The reasonable person approach must be used when establishing fault not wrongfulness. This approach should be avoided.