By Andries Cornelissen B. Proc, Practical Legal Training, Accredited and Certified Mediator, International Accredited and Certified Mediator London School of Mediation, Certified and Accredited Conflict Coach, Practicing Associate: The Association of Arbitrators, Certified and Accredited AHI Representative
Lev Nikolayevich Tolstoy was one of the greatest authors of all time. In his lifetime he received nominations for the Nobel Price of Literature from 1902 – 1906 and for the Nobel Peace Prize in 1901, 1902 and 1909.
In the aftermath of the anarchy and destruction we bore witness to in South Africa within recent weeks, I cannot help but think of the remarkable writings by Mr. Tolstoy.
“I believe order is better than chaos, creation better than destruction. I prefer gentleness to violence, forgiveness to vendetta. On the whole I think knowledge is preferable to ignorance and I am sure human sympathy is more valuable than ideology.”
How relevant to our current circumstances.
South Africa is experiencing a time of severe uncertainty, trauma and turmoil. With the devastating loss of life of 337 people and damage to infrastructure and property totalling hundreds of billions, South Africans have been asking what their rights are in defending their property and or life.
This growing panic has prompted a wide range of self-protective measures. This situation poses dangers of its own. The question remains: When is a person legally allowed to protect their life, property or the lives of others within the ambit and protection of the law?
What constitutes self-defence?
- The attack against you or another must be unlawful
This refers to a situation where, for example, your property was entered illegally/ someone wilfully and intentionally causes you or another harm/ you are in imminent danger.
Persons acting in self-defence should however be very careful when interpreting a situation of imminent danger. Should the State later prove that such person acted in terms of mistaken belief, then such action would not be justifiable.
This scenario played out in S v De Oliveira 1993 (2) SACR 59 (A), where the appellate division held that the difference between private defence and putative private defence was significant. Even where a person honestly believed that his/ her life or property was in danger, but objectively viewed it was not the case = the defensive steps taken would not constitute private defence.
- The attack must be occurring when the defensive act is committed
The unlawful danger must exist at the same time as the defence, or the unlawful danger must be impending.
If an attacker were to run away, there would be no justification for a person to execute a defensive act and the defensive steps would be deemed unlawful.
- The defence act must be directed at the attacker
If the defender defends him/ herself or some other person against anybody else than the attacker, no lawful ground of justification in the form of private defence exists.
- The defence must be proportionate to the attack received
A person cannot claim private defence in a case of deadly force where less harmful defensive methods were available, obtainable and preferable to ward off the attack.
In S v Steyn 2010 1 SACR 411 (SCA) 417 the Supreme Court of Appeal listed some factors to be taken into consideration when determining the proportion between attack and defence. These factors include the parties’ relationship, gender, age differences, physical abilities, where the incident took place, the type of weapon used, the nature of the attack, the gravity of the attack, the perseverance of the attack, the types of means available to ward off the attack, the actual means used by the defender, and the nature and extent of any injuries the defence would cause.
For example, a slap in the face is no justification for a victim to draw a firearm and fire at the attacker. The defence in such instance is not appropriate to the attack and such action would be unlawful.
South Africans may not act as vigilantes or take the law into their own hands. When, however, faced with immediate danger and, provided one acts within the strict boundaries of self-defence, it may be lawful for threatened individuals to resort to private defence.
Andries Cornelissen from Legal Hero