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  1. Today's lesson drawn directly from studies: The principles of self defence (known as private defence) in South African law Private defence may be raised where the following requirements are met: The attack: - Must be unlawful - Must be against interests that ought to be protected - Must be threatening but not yet completed The defensive action: - must only be directed against the attacker - must be necessary - must be in reasonable relationship to the attack - must be taken while the defender is aware that he/she is acting private defence. Detail Regarding the unlawful nature of the attack, it is obviously not possible to raise private defence where the attack is lawful (ie: attacking a policeman trying to lawfully arrest you). It is further not possible to raise private defence in cases where you are defending against an attack which was, itself, in defence of an attack you unlawfully carried out (Jansen). One can act in private defence even where the attacker lacks criminal capacity by virtue of minority, isanity, lack of intent and so on. Animals cannot, of course, act unlawfully, and so defense against an animal attack falls outside of the scope of private defence. Regarding the interests protected, the attack need not be directed at the defending party. Accordingly, a person may intervene to defend another against attack to protect their interests even where there is no other connection between them (Patel). Further, the interests themselves need not be limited to life or bodily integrity. Indeed, our law has recognised valid cases of private defence in service of protecting property (Ex parte die Minister van Justicie: in re S v Van Wyk), dignity (Van Vuuren) and preventing unlawful arrest (Mfuseni). The case of Van Wyk is very interesting in this regard, because it involved a bunch of issues which tested the abovementioned requirements in interesting ways - it will crop up again. Van Vuuren is also interesting, because it involved a case where a man successfully argued against a charge of assault based on the fact that the other party had insulted his wife. Turning to the threatening nature of the attack, it should be pretty obvious that one cannot attack someone pre-emptively because they expect to be attacked in the future. However, this does not mean that you need to wait until the first blow has landed - Patel (supra) established that one may attack first in service of defending against an impending blow. In the case of Van Wyk (supra) the defendant (a shopkeeper) had set up an automatic mechanism designed to wound a would-be thief. This was held not to invalidate the requirment of immenant attack, as the device was only triggered when the 'attack' occured (IE: when the thief broke in). In another case; Mogohlwane; the defendant had his possessions stolen at axe-point, ran home, fetched a weapon, and killed his attacker when he was again threatened. This was held to form one continuous act of resistance and therefore also complied with the requirement. Turning to the requirments for defensive action, it is pretty obvious that one cannot claim private defence in cases where your acts are directed at somoeone other than your attacker. Equally; the requirment of necessity simply states that the defensive action must have been the only remaining option at the time (Attwood). Here our law is perhaps too strict, as present precedent requires that a person has a duty to flee unless no other option presents itself. Here Snyman (Snyman; Criminal Law 5th Edition; pg 107-109) has the following to say (emphasis mine): "...our courts recognise the principle that if it is dangerous for X to flee in the sense that she would expose herself... she need not flee, but may act pro-actively and put her attacker out of action... It is the attacker, who unlawfully and intentionally launches the attack, who carries the risk of injury and death, and not the attacked party." "...the law does not expect X to flee from her own house if she is attacked there. Her house or place of residence is her last refuge - her castle - where she may protect herself against an unlawful attack." "It is submitted that there is not duty on the attacked party to flee. To recognise a duty to flee is to deny the very essence of the present defence. Private defence deals with the defence of the legal order, that is, the upholding of justice. Fleeing is no defence; it is the capitulation to injustice. Why must justice yeild to injustice?" Turning to the requirment for a reasonable relationship between the attack and defensive act; this may be interpreted as suggesting that no more force be used than is needed to ward off the attack (Trainor). This is obvious if you contemplate the idea of, say, warding off the office sandwich thief by placing a mine under your lunchbox. However, there is equally also no requirment that the defender 'play fair' by limiting himself/herself to whatever the attacker is using. Equally, there is no requirement that the damage sustained by both sides must be equal. Finally, there need not be any particular relationship between the nature of the interest threatened and the nature of the interest impaired in the course of defence. Here the case of Steyn provides some useful guidelines on the definition of 'reasonable' for this requirement. Finally, the defender must be aware that they are acting in private defence. This is sort of non-intuitive, but makes sense if one considers an example where one person kills another for their own reasons, and thus inadvertently prevents them from attacking a third party. I hope that the above is interesting and useful in comparison to your own self defence/private defence law. Feel free to comment about any aspects which are similar or differ, and about the concept of self defence in general.
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