Study unit 5

Unlawfulness I

Contents

LEARNING OUTCOMES

5.1 Background
5.2 The meaning of “unlawfulness”
5.2.1 General
5.2.2 Acts that comply with the definitional elements are not necessarily
unlawful: examples
5.2.3 The content of unlawfulness
5.2.4 Unlawfulness distinguished from culpability
5.3 Private defence
5.3.1 Definition of "private defence"
5.3.2 Requirements of the attack
5.3.3 Requirements of the defence
5.3.4 The test for private defence
5.3.5 Exceeding the limits of private defence
5.4 Glossary
5.5 Summary
5.6 Test yourself

LEARNING OUTCOMES
Once you have finished this study unit, you should be able to

• demonstrate your understanding of the application of the general criterion of

unlawfulness (i.e. the boni mores or legal convictions of society) in solving a dispute
about the unlawfulness of a particular act that complies with the definitional elements
of a crime, but not with the requirements of any recognised ground of justification.
• determine whether certain conduct falls within the scope of a generally recognised
ground of justification, with reference to the general criterion of unlawfulness
• apply the rules pertaining to the ground of justification known as private defence to
the facts of a particular case
5.1 BACKGROUND
In study unit 1, we stated that the four cardinal requirements of liability for a crime
are

(1) act or conduct

(2) compliance with the definitional elements

(3) unlawfulness

(4) culpability

We have already dealt with the first two of these requirements. In this study unit we
begin our discussion of the third requirement, namely unlawfulness. In this study unit
we first discuss the meaning of "unlawfulness" and, thereafter, the first ground of
justification, namely private defence.

5.2 THE MEANING OF "UNLAWFULNESS"

(Criminal Law 95–102; Casebook 70–74)

5.2.1 General

The mere fact that there is an act that corresponds to the definitional elements does
not mean that the person who performs the act is liable for the particular crime.
Therefore, satisfying the definitional elements is not the only general requirement for
liability. The next step in the determination of liability is to inquire whether the act that
complies with the definitional elements is also unlawful.

In all probability, a layperson will be of the opinion that once it is clear that the
requirements for liability set out thus far (namely that the law prohibits certain conduct
as criminal and that X has committed an act that falls within the definitional elements)
have been complied with, X will be liable for the crime and may be convicted.
However, a person trained in the law will realise that there are still two very important
further requirements that must be complied with, namely the requirements of
unlawfulness and culpability.

The reason why a layperson is likely to be unaware of the latter two requirements is
because they are "unwritten" or "invisible" in the sense that what is understood by
"unlawfulness" and "culpability" does not ordinarily form part of the "letter" or "visible
part" of the legal provision in question, namely the definitional elements. Therefore, if
you consult the definition of a crime in a statute, you will normally not even come
across the word "unlawful", neither can you expect to find words that express the
culpability requirement, such as "intentional" or "negligent". Nevertheless, a court will
 never convict a person of a crime unless it is convinced that the act that complies with
the definitional elements is also unlawful and accompanied by culpability, in other
words, that the so-called unwritten or invisible requirements have also been complied
with.

5.2.2 Acts that comply with the definitional elements are not necessarily
unlawful: examples

An act that complies with the definitional elements is not necessarily unlawful. This
will immediately become clear if you consider the following examples:

(1) In respect of murder, the definitional elements are "the killing of another human
being". Nevertheless, a person is not guilty if they kill somebody in self-defence;
their act is not unlawful in that case.

(2) X inserts a knife into Y's body. Although his act may satisfy the definitional
elements of assault, it is not unlawful if X is a medical doctor who is performing
an operation on Y with Y's permission, in order to cure him of an ailment.

(3) X exceeds the speed limit while driving his motor car. His conduct satisfies the
definitional elements of the crime of exceeding the speed limit. However, if he
does so in order to get his seriously ill child to hospital for emergency treatment,
his conduct is not unlawful (Pretorius 1975 (2) SA 85 (SWA)).

There are many other examples of conduct that satisfies the definitional elements
but is nevertheless not unlawful. It is very common for an act that seems to fall within
the letter of the law (i.e. corresponds to the definitional elements) to prove, upon
closer inspection, to be not contrary to the law, as the examples above illustrate. In
these cases, the law tolerates the violation of the legal norm.

5.2.3 The content of unlawfulness

When is conduct that corresponds to the definitional elements not unlawful? In other
words, what precisely is meant by "unlawful" and what determines whether an act is
unlawful?

(1) Grounds of justification

There are a number of well-known cases or situations where an act that corresponds
to the definitional elements is, nevertheless, not regarded as unlawful. Unlawfulness
is excluded because of the presence of grounds of justification. Some well-known
grounds of justification are private defence (which includes self-defence), necessity,
consent, official capacity and parents' right of chastisement.
At this point, it would be tempting simply to define unlawfulness as "the absence of
a ground of justification". However, such a purely negative definition of unlawfulness
is not acceptable for two reasons:

(a) Jurists agree that the number of grounds of justification is unlimited. If this is
the case, how can we determine the lawfulness or unlawfulness of conduct that
does not fall within the ambit of one of the familiar grounds of justification?

(b) Each ground of justification has its limits. Where an act exceeds these limits, it
is unlawful. So what is the criterion for determining the limits of the grounds of
justification?

The answers to these questions are found under the next subheading.

(2) Legal convictions of society

Opinions differ on the material content of the concept of unlawfulness, but we do not
intend discussing the philosophical arguments underlying the differences of opinion
here. The current approach (with which we agree) is the following:

Conduct is unlawful if it conflicts with the boni mores (literally "good morals")
or legal convictions of society (Fourie 2001 (2) SACR 674 (C) 678). The law
must continually strike a balance between the conflicting interests of individuals
themselves, or between the conflicting interests of society and the individual. If
certain conduct is regarded as unlawful by the law, this means that, according to
the legal convictions (or boni mores) of society, certain interests or values protected
by the law (such as life, property or dignity) are regarded as more important than
others (Clark v Hurst 1992 (4) SA 630 (D) 652–653). The contents of the Bill of
Rights in Chapter 2 of the Constitution must obviously play an important role in
deciding whether conduct is in conflict with public policy or the community's
perception of justice. The values mentioned in section 1 of the Constitution, namely
"human dignity, the achievement of equality and the advancement of human rights
and freedoms" are also crucial in deciding this issue.

Therefore, in order to determine whether conduct is unlawful, we must inquire

whether the conduct concerned conflicts with the boni mores or legal
convictions of society. The grounds of justification must be seen as practical
aids in the determination of unlawfulness. In effect, they merely represent those
situations encountered most often in practice, which have therefore come to be
known as easily recognisable grounds for the exclusion of unlawfulness. They do
not cover the entire subject-field of this discussion, namely the demarcation of lawful
and unlawful conduct.

In Fourie 2001 (2) SACR 674 (C), the facts were the following: X, a regional-court
magistrate, was caught exceeding the speed limit on his way to court. He pleaded
 not guilty. X’s defence was that even though he had exceeded the speed limit, his
act was not unlawful, despite none of the established grounds of justification being
applicable to his conduct. X argued that his conduct should be regarded as lawful
because it was not in conflict with the legal convictions of society. By trying to arrive
in court on time, his only aim was to promote the interests of the administration of
justice. He did not seek to promote his own private interests, but those of the state,
and, more particularly, those of the administration of justice.

The court dismissed this defence. If this defence were valid, it would open the
floodgates to numerous unpunishable contraventions of the speed limits on our
roads. Many people would then be entitled to allege that, since they would otherwise
be late for an appointment in connection with a service they render to the state, they
are allowed to contravene the speed limit. In the course of the judgment, the court
confirmed the principle set out above, namely that the inquiry into unlawfulness is
preceded by an inquiry into whether the act complied with the definitional elements,
and also that the test to determine unlawfulness is the boni mores or legal
convictions of the community.

From what has been said above, it is clear that we have to distinguish between

(1) an act that complies with the definitional elements and (2) an act that is unlawful.

The act described in (1) is not necessarily unlawful; it is only "provisionally" unlawful.
Students often confuse the two concepts. One of the reasons for the confusion is
that, for the layperson, the word "unlawful" probably means only that the act is an
infringement of the "letter" of the legal provision in question (i.e. the definitional
elements). You may overcome this possible confusion by always using the
expression "without justification" as a synonym for "unlawful": an act complying with
the definitional elements is unlawful only if it cannot be justified.

5.2.4 Unlawfulness distinguished from culpability

Unlawfulness is usually determined without reference to X's state of mind; whether

he thought that his conduct was lawful or unlawful is irrelevant. What he subjectively
imagined to be the case comes into the picture only when the presence of culpability
has to be determined.

We will now proceed to a discussion of the different grounds of justification. The rest
of this study unit is devoted to a discussion of the first ground of justification, namely
private defence. In the next study unit we will deal with the remaining grounds of
justification.
5.3 PRIVATE DEFENCE

(Criminal Law 102–114; Casebook 74–93)

5.3.1 Definition of private defence

A person acts in private defence – and his conduct is therefore lawful – if he uses
force to repel an unlawful attack that has already commenced, or that immediately
threatens his or somebody else's life, bodily integrity, property or other interest that
ought to be protected by the law, provided the defensive action is necessary to
protect the threatened interest, is directed against the attacker, and is no more
harmful than is necessary to ward off the attack.

(Don't feel discouraged if, when reading the definition for the first time, it seems to
be complicated, or if you do not immediately understand all the details it contains.
We will explain the details of this ground of justification below. By the time you come
to the end of the discussion of this ground of justification, you ought to understand
all the contents of this definition.)

This ground of justification is commonly referred to as "self-defence", but this

description is too narrow, since not only persons who defend themselves, but also
those who defend others, can rely upon this ground of justification. A person acting
in private defence acts lawfully, provided his conduct complies with the requirements
of private defence and he does not exceed its limits.

For purposes of classification, it is convenient to divide the requirements and the

most important characteristics of private defence into two groups. The first group
comprises those requirements or characteristics with which the attack against a
person acting in private defence must comply; the second comprises the
requirements with which the defence must comply.

In order to assist you in your studies, we will first summarise the requirements in the
following diagram. This is the framework of the knowledge you should acquire.

Private defence requirements

(1) Requirements of attack

The attack

(a) must be unlawful

(b) must be against interests that ought to be protected

 (c) must be threatening, but not yet completed

(2) Requirements of defence

The defensive action

(a) must be directed against the attacker

(b) must be necessary

(c) must stand in a reasonable relationship to the attack

(d) must be taken while the defender is aware that he is acting in private
defence

We will now elaborate on the abovementioned private defence requirements.

5.3.2 Requirements of the attack

(1) The attack must be unlawful

Private defence against lawful conduct is not possible. For this reason, a person acts
unlawfully if he attacks a policeman who is authorised by law to arrest a person. If
the policeman is not authorised by law to perform a particular act, or if he exceeds
the limits of his authority, he may lawfully be resisted.

Can X rely on private defence if he kills Y in the course of a prearranged duel? In

Jansen 1983 (3) SA 534 (NC), X and Y decided to "settle their differences" in a knife
duel. During the fight, Y first stabbed at X, and then X stabbed Y in the heart, killing
him. The court held, quite justifiably, that X could not rely on private defence, and
convicted him of murder. X's act of averting the blow was merely part of the execution
of an unlawful attack that he had planned beforehand.

In deciding whether the attack of Y (the aggressor) on X is unlawful, there are three
considerations These three considerations, marked (a) to (c) below, are the
following:

(a) The attack need not be accompanied by culpability. X can therefore act in
private defence, even if his act is directed against a non-culpable act by Y (e.g.
if Y was mentally ill when he attacked X).

(b) The attack need not be directed at the defender. X (the “defender”) may
therefore also act in private defence to protect a third person (Z), even if there
is no family or protective relationship between X and Z (Patel 1959 (3) SA 121
(A)). Figure 5.1 depicts what happened in the aforementioned case: the
criminal, Y, initially attacked the lady, Z, whereupon the "hero", X, appeared on
the scene and, in defence of Z, attacked Y, thereby preventing him from
 continuing with his attack upon Z. As will be pointed out later, the defensive act
must be directed against the attacker, in this case, Y.

Figure 5.1: Criminal Y is attacked by Hero X as he defends victim Z

(c) The attack need not necessarily consist in a positive act, despite the fact that
it nearly always does. Although it is unlikely to occur very often, an omission may
also qualify as an "attack", provided the other requirements for private defence are
present. An example in this respect is that of a convict who assaults prison warders
and escapes when his term of imprisonment has expired, but he has not yet been
released.

(2) The attack must be directed against interests that, in the eyes of the law,
ought to be protected

Private defence is usually invoked in protection of the attacked party's life or physical
integrity, but, in principle, there is no reason why it should be limited to the protection
of these interests. Therefore, the law has recognised that a person can also act in
private defence

• in protecting property (Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1)
SA 488 (A))
• in protecting dignity (Van Duren 1961 (3) SA 305 (EC))
• in preventing unlawful arrest (Mfuseni 1923 NPD 68)
• in preventing attempted rape (Mokoena 1976 (4) SA 162 (0))
 As far as protection of property is concerned, the most important decision in our case
law regarding private defence is Ex parte die Minister van Justisie: in re S v Van Wyk
1967 (1) SA 488 (A). The Appeal Court held that, in extreme circumstances, a person
is entitled to kill another person in defence of property, but also had to comply
withmost of the requirements of private defence referred to above.

As far as protection of dignity is concerned, it was held in Van Duren (supra) that a
person may rely on private defence in order to defend someone's dignity. In this case,
Y insulted X's wife in public, whereupon X dealt Y a few blows. The court held that X
was not guilty of assault. There was a distinct possibility that Y would have continued
insulting X's wife, and X wanted to prevent this.

(3) The attack must be threatening, but not yet completed

X cannot attack Y merely because he expects Y to attack him at some time in the
future. He can attack Y only if there is an attack or immediate threat of attack by Y
against him; in this case, it is, of course, unnecessary that he wait for Y's first blow –
he may defend himself by first attacking Y, with the precise object of averting Y's first
blow (Patel 1959 (3) SA 121 (A)). Private defence is not a means of exercising
vengeance, neither is it a form of punishment. For this reason X acts unlawfully if he
attacks Y when Y's attack upon him is already something of the past.

You can also refer to the case of Mogohlwane 1982 (2) SA 587 (T), where Y tried to
take a paper bag containing clothes, a pair of shoes and some food from X. X resisted,
but Y threatened X with an axe and therefore gained possession of the bag. X
immediately ran to his house, some 350 metres away, fetched a table knife, returned
to Y and tried to regain his property. When Y again threatened X with the axe, X fatally
stabbed Y with his knife in order to prevent him (Y) from escaping with his bag of
possessions. The court decided that X acted in private defence: the attack on X was
not completed, because when X ran home and fetched the knife, it was part of one
and the same immediate and continued act of resistance. X was a poor man and the
contents of the bag were of value to him. If Y had run off with the bag, X would never
have seen it again.

5.3.3 Requirements of the defence

(1) It must be directed against the attacker

If Y attacks X, X cannot direct his act in private defence against Z.

(2) The defensive act must be necessary

The defensive act must be necessary in order to protect the interest threatened in the
sense that it must not be possible for the person threatened to ward off the attack in
another, less harmful way (Attwood 1946 AD 331 340).

For example, if, at the end of a lease, a stubborn tenant refuses to leave the rented
premises, the lessor is not entitled to seize him by the collar and expel him from the
premises forcibly. The lessor may protect his rights and interests only by using the
ordinary legal remedies, which involve obtaining an ejectment order from a court and,
possibly, claiming damages.

The basic concept underlying private defence is that a person is allowed to "take the law
into his own hands" only if the ordinary legal remedies do not afford him effective
protection. It would seem that our courts require an assaulted person to flee, if possible,
rather than kill his assailant – unless such an escape would be dangerous. For criticism
of this attitude, read the discussion in Criminal Law 107–109.

(3) There must be a reasonable relationship between the attack and the defensive
act

Another way of expressing this requirement is by saying that the act of defence may not
be more harmful than necessary to ward off the attack (Trainor 2003 (1) SACR 35 (SCA)).

It stands to reason that there ought to be a certain balance between the attack and the
defence. After all, a person is not entitled to shoot and kill someone who is about to steal
his pencil! There should be a reasonable relationship between the attack and the
defensive act in the light of the particular circumstances in which the events take place.
If, for example, the attacked party could have overcome the threat by using his fists or by
kicking the assailant, he may not use a knife, let alone a firearm.

In order to decide whether there was a reasonable relationship between the attack and
the defence, factors such as the following should be taken into consideration:

• the relative strength of the parties (If X is strongly built, but Y, the aggressor,
is weakly built, X ought normally to be able to overcome Y's attack without
resorting to extreme measures.)
• the sex/gender of the parties
• the ages of the parties
• the means they have at their disposal
• the nature of the threat
• the value of the interest threatened
• the persistence of the attack
 (4) The attacked person must be aware of the fact that he is acting in private
defence

There is no such thing as inadvertent or accidental private defence. Private defence

cannot succeed as a defence in cases where it is pure coincidence that the act of
defence was, in fact, directed at an unlawful attack. Example: X decides to kill Y,
whom he dislikes, and shoots and kills him while he is sitting in a bus together with
other passengers. Only afterwards is it discovered that Y was an urban terrorist who
was on the point of blowing up the bus and all its passengers by means of a hand
grenade. If X had not killed Y in time, he (X) himself would have been killed in the
explosion. X would, however, not be allowed to rely on private defence in such
circumstances. (There is, thus far, no direct authority in our case law dealing with
this requirement for private defence.)

5.3.4 The test for private defence

The question whether X's acts fell within the limits of private defence must be
considered objectively, that is, in the light of the actual facts, and not according to
what X (at the time) took the facts to be. A person cannot rely on private defence if it
appears that he was not, in fact, exposed to any danger, but merely thought that he
was.

Example: Y goes out one evening to play cards with his friends. On his way home,
he loses his keys, perhaps because he has had one or two drinks too many. Arriving
at his home, he decides not to wake his wife, X, by knocking on the door, but rather
to climb through an open window. His wife wakes up and, in the dark, sees a figure
climbing through the window. She does not expect it to be her husband and takes it
to be a burglar. She seizes a pistol and fires at the "burglar" (her husband), killing
him. X cannot rely on private defence because, from an objective point of view, she
did not find herself in any danger. She merely thought she was in danger. We can
refer to this type of situation as putative private defence. (The word "putative" is
derived from the Latin word putare, which means "to think". Thus "putative private
defence" means defence that existed only in X's thoughts.) This is not actual private
defence. However, the fact that X cannot rely on private defence does not mean that
she is therefore guilty of murder. She may, as a defence, rely on absence of
culpability, because she was mistaken and because her mistake excluded the
intention to murder her husband. We will return to this point later.

Whether there actually was danger or an attack warranting the exercise of private
defence must be determined objectively ex post facto (after the event). Here the rule
is that the court should not act as an armchair critic, but should try to visualise itself
in the position of the attacked person at the critical moment, when he possibly had
only a few seconds to make a decision that was of vital importance to him.
5.3.5 Exceeding the limits of private defence

If X is attacked by Y. but in retaliating, he exceeds the limits of private defence (e.g.

because he causes the attacker more harm or injury than is justified by the attack),
he himself becomes an attacker and acts unlawfully. Whether he is then guilty of a
crime such as murder, assault or culpable homicide will depend on his culpability, in
other words, his possible intention or negligence (see study unit 11).

ACTIVITY 5.1

Assume that X, who is sleeping in his home, is woken up in the middle of the
night by Y, an armed burglar, who approaches his room or that of a family
member. X shoots at Y in order to protect his family. Y dies as a result of the
shot. Can X's conduct be justified on the grounds of private defence?

FEEDBACK ON ACTIVITY 5.1

It would be unfair to expect X first to ask Y to identify himself and state the purpose
of his visit in order to decide what, objectively, the appropriate defensive
measures would be in the circumstances. It would also be unfair to expect X first
to try to arrest Y and then call the police. Experience tells us that even a moment's
hesitation by X in such circumstances might be fatal to X. To deny X the right to
shoot in such circumstances is to require him to gamble with his life or with the
lives of the other people in the house.

Even if a court holds that X cannot rely on private defence because, objectively,
there was a less harmful way in which he could have overcome the danger, the
court would, in most cases refuse to convict X of murder if he shot and killed Y:
although X acted unlawfully, he lacked intention because he honestly believed
that his life or the lives of his family members were in danger. This means that
there was no awareness of unlawfulness on his part and therefore no intention.
He was mistaken about the unlawfulness of his action and therefore lacked
intention. This will become clearer later in the guide where, as part of the
discussion of intention, we discuss the effect of mistake relating to unlawfulness.
However, X may still be found guilty of culpable homicide if the reasonable person
would have acted differently in the circumstances. Refer to study unit 11: 11.9.3.
5.4 GLOSSARY

LEGAL TERM ENGLISH ZULU

boni mores good morals ukuziphatha okuhle

putare to think ukucabanga

5.5 SUMMARY

(1) Once it is clear that X has committed an act that complies with the definitional
elements, the next step in inquiring into the question of criminal liability is to determine
whether X's act was also unlawful.

(2) Conduct is unlawful if it is in conflict with good morals (boni mores) or the legal
convictions of society.

(3) The grounds of justification are practical aids for determining unlawfulness. They
represent situations often encountered in practice that have come to be known as
easily recognisable grounds for the exclusion of unlawfulness.

(4) Definition of private defence: see definition above.

(5) The requirements with which the attack and the act of defence must comply in order
to succeed with a plea of private defence: see the summary above.

(6) In Ex parte die Minister van Justisie: in re S v Van Wyk, the Appeal Court held that X
may, in extreme circumstances, even kill another in private defence to protect his (X's)
property. The constitutionality of this rule is questioned by legal writers.

(7) Putative private defence occurs when X thinks that he is in danger, but, in fact, he is
not. This is not actual private defence, but it may exclude X's culpability.

5.6 TEST YOURSELF

5.6.1 When will conduct be regarded as unlawful? [3]

5.6.2 Are there a limited number of grounds of justification? Discuss briefly. [3]

5.6.3 State whether the following is true or false: Conduct is unlawful if it accords
with the definitional elements. [2]

5.6.4 State whether the following is true or false: For conduct to be unlawful, it must
conflict with the boni mores or legal convictions of society. [2]

5.6.5 State whether the following is true or false: Unlawfulness is usually determined by
referring to an accused’s state of mind. [2]

5.6.6 Define private defence. [3]

5.6.7 State the requirements with which the attack and the act of defence must comply
in order to form the basis of a successful plea of private defence. In your answer,
you need only list the requirements of the attack and the defence, not discuss them.
[7]

5.6.8 Explain putative private defence by means of a practical example. [5]

5.6.9 List some of the interests that can be protected when invoking private defence as
a ground of justification. [5]

5.6.10 Explain the requirement that the attack in private defence must be directed against
interests that, in the eyes of the law, ought to be protected. [7]

5.6.11 In order to decide whether there was a reasonable relationship between the attack
and the defence in private defence, several factors should be taken into
consideration. List these factors. [7]

5.6.12 Explain the requirement that the attacked person must be aware of the fact that he
is acting in private defence. [6]

5.6.13 X, a 25-year-old man is walking to work one morning when he is approached by Y,

a 12-year-old pickpocket. Y tries to steal the plastic lunchbox that X is carrying. X
retaliates by pulling a gun out of his trouser pocket and shooting Y in the chest. Y
dies a few seconds later. Can X successfully rely on private defence on a charge
of murder? Discuss with reference to the requirements of the defence in private
defence. [10]

STUDY HINT: Make your own summary of this study unit for revision purposes.