Unlawfulness Flashcards
Private Defence and Necessity (33 cards)
What is unlawfulness?
Unlawfulness asseses whether there is an an abscence for justification of x’s conduct
What is the difference between a prohibition and an injunction?
- Prohibition: prohibits or forbids a person to act positively in a certain way
- eg: you may not commit murder
- Injunction: places duty on person to act positively and failing of which will lead to criminal liability
- eg: X has to pay tax and if he fails to do so > guilty of tax evasion
Formal and Material Unlawfulness
what is formal unlawfulness?
- the realisation of prohibited conduct & its particular definitional elements of crime > prima facie X shot Y which caused Y’s death therefore formal unlawfulness is present
Formal and Material Unlawfulness
What is material unlawfulness?
- look at substantive criminal law and whether X’s act can be justified on a ground of justification
Omissions
what is an omission?
1.where X fails to act positively under circumstances where a legal duty to
perform a positive act (must be voluntary)
2. Punishable only if legal duty on somebody to perform a certain type of conduct
3. If legal convictions of community demand there is such a duty > then there is, even if no statutory premises
Exceptions for Omissions
What did the B decision state regarding an omission?
special relationships can create a duty on a person to act positively
> the accused (1) > left her husband and moved in with her boyfriend but he abused the child > it culminated in an event where accused boyfriend(2) assaulted the child who lost consciousness and died
- Accused (1) and accused (2) were charged with murder
- whether mother was also guilty of murder? By virtue of fact she knew of abuse and failed to protect the child
- Court found her guilty > although she did not assault the child, she was aware of the assaults and failed in her parental duties (duty of protection toward child) to act positively > guilty of an omission
Exceptions for Omissions
What did the mahlangu case state regarding an omission?
Employer-Employee Relationship
special relationship of employer-employee > the accused and his friend were both employees at a filing station which was a target of a robbery > they had knowledge
of the robbery but failed to warn the owner
- During the robbery > the owner was killed
- They were found guilty as accomplices to murder
-whether their lack of warning was unlawful?
- Court held: it was indeed unlawful > there was a relationship of trust and legal duty to act in best interests of employer and as such boni mores expected an employee to act positively under these circumstances
Exceptions for Omissions
What are the statutory duties for omissions?
- Sec110 of Children’s Act; duty of anyone with knowledge of child abuse to report to
police - sec54 of Criminal Law Amendment Act (Sexual Offences): aware of any sexual
offence against a child or mentally disabled person to report to police and failure of which can lead to imprisonment
Exceptions for Omissions
What did the S v Kramer case state regarding omissions for potentially dangerous ojects?
- Anaesthesiologist placed a tube incorrectly in a child who was having a tonsillectomy > error of professional judgment > she lost oxygen > she died
- Both accused were not guilty
- It was the anaesthetists job > not the surgeon (Kramer; no legal duty on surgeon to check whether the anaesthetist performed their duties)
- Guilt attributed to the anaesthetist by virtue of his office > guilty of culpable homocide
Exceptions for Omissions
What did the Russell case state regarding prior conduct as an omission?
- facts: crane operator >was informed the electrical cable which was above them would be activated > Russel accepted this warning but failed to warn his co-workers
- One of his co-workers was electrocuted as a result of his failure to warn
- was Russel guilty of culpable homicide for failure to warn co-worker?
- Yes > he had accepted the warning which related to a potentially dangerous situation and there was a legal duty for him to inform others thereof
- Prior acceptance = resulted in guilt
Justifications
What are putative grounds of justification for unlawfulness?
- Where X’s conduct remains unlawful if he subjectively thinks or believes there is a ground of justification but in fact there is none
- X wrongly believes there is a ground of justification and mistakenly believe this conduct is covered by a ground of justification
- Objectively viewed there is no ground of justification
Grounds of Justification:Private Defence
How is private defence a ground of justification?
-A person acts in private defence and their
conduct is lawful if use of force to repel an unlawful attack which has already commenced, or which is immediately threatening their own life or somebody else’s life, bodily integrity or property
or other interest ought to be protected by law
-provided the threatened act is necessary, directed against the attacker and is not more harmful than necessary to ward off the attack
Grounds of Justification: Private Defence
What is the effect of private defence as a ground of justification?
Unlawfulness excluded by this ground of justification (and conduct is unlawful if it conflicts with the legal convictions of society
- If comply with requirements > X will act lawfully
Grounds of Justification
What did the van wyk case state regarding private defence for the protection of a legal interest?
- The attack must be directed against legal interest
- Can act in private defence against property
- Accused had a shop (robbed on few occasions)
- Such a point of seriousness to set up a mechanism > if person enters, a shot
would be fired from a fire arm and warning sign placed outside shop - Break in - Mechanism was triggered and shot intruder fatally wounding him
- Court held:
- Was there a less serious means?
- Property is a legally recognised interest
- Van Wyk acted reasonably and he had not exceeded boundaries
- Authority that you can act in private defence against your property
Grounds of Justification:Private Defence
What are the facts of Mogohlwane case for private defence as ground of justification?
- Facts: the accused on his way from work, paper bag containing his food and clothing
- Deceased grabbed bag from accused
- Accused tried to grab bag and was threatened with an axe
- Accused ran home seeking help
- Accused ran back to scene with knife (no help at home) - Tried to get his bag back
- He was threatened with axe - Stabbed deceased with knife
- Whether this was a continuous action, or an interruption?
Grounds of Justification:Private Defence
What did the court in the Mogohlwane case state regarding private defence asa ground of justification?
: these two occurrences were related to closely in time they can be seen as
one continuous attack and not separate instances
- There was a threatening and imminent attack
- No less harmful way to protect his interests and contents of this paper bag were valuable to the accused
- precedent: not two separate attacks (lapse of time not long enough and so
closely linked)
- He was found not guilty and succeeded with private defence
Grounds of Justification:Private Defence
What did the Van Vuuren case state regarding private defence for 3rd parties?
accused and his wife attended a prize giving function at a school > complainant felt aggrieved he had not been praised enough during ceremony and used foul language against accused’s wife
- Accused grabbed his arm in retaliation
- Then he laid a charge of assault against accused- argued: acted in protection of his wife’s dignity - You can act against an interest of another person
- He was found not guilty
What is putative defence?
- Where X subjectively but mistakenly/erroneously believes acting in private defence -Objectively unlawful
- And it is an objective test
- Has a bearing on fault but not on unlawfulness
What is the use of excessive force in instances of unlawfulness for private defence?
Ntuli case
-Ntuli went in search of his wife
-His mother in law attacked him first+ he threw an assegai at her+ then a walling stick back at her which killed her instantly
- He was charged with murder -
- he applied more force than necessary
- He was a strong, young male and she was an old, frail woman
- He was found guilty of culpable homicide and private defence failed
Grounds of Justification:Necessity
How is necessity a ground of justification?
-a person acts in necessity+ their conduct is lawful, if act in protection of his or her own or someone else’s life, bodily integrity, property or other legally recognised interest, which is endangered by a threat of harm that has commenced or is
immediately threatening and cannot be averted in another way,
-Person is not legally compelled to endure the danger and the interest protected by protective act is not out of proportion to interest infringed by the act
Grounds of Justification:Necessity
What are the facts of the Goliath case for necessity as a ground of justification?
- Accused 1-2 were charged with murder, they were walking and came across deceased >
demand him to hand cigarettes> money > > accused 1 ordered 2 to take hold of deceased so 1 could stab him - Accused 2 was scared of 1 but would be stabbed if he did not hold the deceased
- Deceased died by accused 1’s stab wounds - Could compulsion act as a complete defence to charge of murder?
- Yes but depend on circumstances
Grounds of justification:Necessity
What did the court hold in the Goliath case for necessity as a ground of justification?
- Majority felt accused 2 not guilty based on compulsion
- The judgment dealt with the defence of necessity due to compulsion and whether it can be a complete defence to a charge of murder
-Compulsion within the context of necessity does not exclude necessity - The question which arose was whether Goliath acted unlawfully when he executed the order to hold the deceased in order for accused number 1 to stab him
- The majority decision did not address the question as to whether necessity in this context should exclude unlawfulness or fault but held that his defence was successful
- It was further held that it would depend on the circumstances of each case as to whether necessity would succeed as a defence and it had to assessed objectively
Grounds of Justification:Necessity
What did the Nkhumeleni case state regarding necessity?
-You cannot act in necessity
where someone is acting in private defence against you
- Facts:
- Accused attacked the complainant by stabbing him with knife and also stabbed his dog
- He was charged with assault+ in terms of the Protection of Animal Cruelty Act
- Accused raised the: Defence of necessity
- Saying that the animal attacked him
- But court found: cannot act in necessity if someone acts in private defence against you (dog as protecting his owner)
- His defence failed
- It was not an act by means of necessity
- He was found guilty in terms of Animal Protection Act
Grounds of Justification:Necessity
What did the Pretorious decision state regarding necessity?
- Accused’s daughter had taken an overdose of disprin > he rushed her to hospital to save her life, exceeded speed limit > ground of necessity succeeded
- And stated: can even raise the ground of necessity even if you are the cause of the
situation requiring necessity
