CRW2601 - 8. Unlawfulness Questions with
Verified Correct Answers
Discuss Unlawfulness.
Conduct is unlawful if it conflicts with the boni mores or legal convictions of society. In
order to determine whether conduct is unlawful, one must therefore enquire 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.
Satisfying the definitional elements is not the only general requirement for liability: next step
is to determine whether act is unlawful.
Grounds of justification excludes unlawfulness, i.e.:
1. Private defense
2. Necessity
3. Consent
4. Official capacity
5. Parents' right of chastisement
Cannot define unlawfulness as absence of grounds of justification due to:
1. No limited number of grounds of justification
2. Each ground of justification has its limits
Cases: Fourie 2001, Clark v Hurst 1992
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.
Discuss Private defense.
A person acts in private defence and his conduct is therefore lawful if he uses force to repel
an unlawful attack which has already commenced, or which 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.
Defence can be used by people defending themselves as well as those defending others.
1. Private defence requirements:
a) Requirements of attack
b) The attack must be unlawful
c) The attack must be against interests which ought to be protected
d) must be threatening but not yet completed
2. Requirements of defence:
a) Defensive action must be directed against the attacker
b) Defensive action must be necessary
c) Defensive action must stand in a reasonable relationship to the attack
d) Defensive action must be taken while the defender is aware that he is acting in private
defense.
Discuss the Requirements of the Attack.
Verified Correct Answers
Discuss Unlawfulness.
Conduct is unlawful if it conflicts with the boni mores or legal convictions of society. In
order to determine whether conduct is unlawful, one must therefore enquire 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.
Satisfying the definitional elements is not the only general requirement for liability: next step
is to determine whether act is unlawful.
Grounds of justification excludes unlawfulness, i.e.:
1. Private defense
2. Necessity
3. Consent
4. Official capacity
5. Parents' right of chastisement
Cannot define unlawfulness as absence of grounds of justification due to:
1. No limited number of grounds of justification
2. Each ground of justification has its limits
Cases: Fourie 2001, Clark v Hurst 1992
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.
Discuss Private defense.
A person acts in private defence and his conduct is therefore lawful if he uses force to repel
an unlawful attack which has already commenced, or which 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.
Defence can be used by people defending themselves as well as those defending others.
1. Private defence requirements:
a) Requirements of attack
b) The attack must be unlawful
c) The attack must be against interests which ought to be protected
d) must be threatening but not yet completed
2. Requirements of defence:
a) Defensive action must be directed against the attacker
b) Defensive action must be necessary
c) Defensive action must stand in a reasonable relationship to the attack
d) Defensive action must be taken while the defender is aware that he is acting in private
defense.
Discuss the Requirements of the Attack.
