When is Private Defence against attacks justifiable
13 August 2021 12:00
The devastating riots and widespread looting bore witness to many brave acts of private defence against unlawful attacks against persons, property and other legal interests. Unfortunately, neither rioting, looting and general lawlessness are going to go away, and with them, the issue of private defence.
According to the Law of South Africa (LAWSA)[i], the conditions necessary to justify private defence should first be analysed according to the nature of the attack and second, according to the nature of the defence. A brief analysis involves the following elements:
1. The Attack
The attack can consist in a voluntary act of commission, for instance, assault or threatened assault on a person, damage to or theft of property, search or entering of premises; or a voluntary act of omission, for example, refusing to leave premises.
It must be unlawful
A person can’t defend themselves against, for example, a lawful arrest or search.
That the attack is unlawful must be justified even if the attacker lacks mens rea or criminal capacity, for example, if the attack is by a child, lunatic or drunkard. Assessing whether it is unlawful must be an objective test, meaning it is irrelevant if the attacker believes the attack to be lawful.
It must be an attack against a legal interest
For example, to protect:
- Life and limb from injury,
- Property from damage or theft,
- Against unlawful arrest, search, or imprisonment,
- Against attempted rape,
- Against injury to dignity such as verbal abuse.
Interest of the defender or another person
An act of private defence against an unlawful attack by a third person, for instance, a security guard or a good Samaritan, will be treated in the same way as if they were defending their own person, property, or interests.
It must have commenced or be imminent
Private defence must be aimed at an attack which has already begun or is imminent, taking into account all the surrounding circumstances. “Defences” against anticipated future attacks or completed attacks are not justified.
2. The Defence
It must be directed against the attacker
If a defender injures a third party or causes damage to property during the attack, they can’t rely on private defence, but rather necessity. Because private defence is assessed objectively, an act of defence can still be one even if the defender repelling an unlawful attack by force, is not doing so (subjectively) to protect a legal interest, since it is directed against the attacker.
It must be necessary to protect an interest
It must be the only way available at the time to protect a threatened legal interest with no other legal alternatives available, or, where personal injury is threatened, there must be no possibility for the person under attack to flee. The basis of the decision to act must be one of reasonableness under the circumstances.
Reasonable means must be used in the defence
An enquiry into the force necessary to repel an unlawful attack is dependent upon the reasonableness necessary under the circumstances to deter the attack, not on the nature of the threatened harm, or whether other methods of defence might have worked. For example, the nature of the weapon used in the attack, the relative physical strength and number of attackers and defenders, the age of the defender, and the general nature and extent of the danger have all been considered by the courts in ascertaining reasonableness.
The lawfulness of the conduct of the defender is also dependent on whether the motivation for the conduct would have been shared by a reasonable person, even if it is mistaken, provided a reasonable person would have reached the same conclusion.
Excessive defence may result in criminal liability for assault, culpable homicide or even murder, for example, if the defender was negligent and should have realised that the defence was excessive (culpable homicide) or intentionally used more force than reasonably necessary to repel an attack and the attacker died (murder).
[i] The Law of South Africa Criminal Law (Volume 11 - Third Edition) Paragraphs 38 et seq