Question 2: Introduction to Criminal Law
Issue
Can Sally successfully raise the private defence of person to justify killing Luke?
Relevant Law
Private defence of person (also referred to as self-defence) justifies the use of force or violence
against another person, if the force is used to defend oneself, or someone else, against an
unlawful attack. The law does not permit the use of force to kill another person. This is prima
facie unlawful. Nevertheless, the law does allow the use of force to defend oneself from an
unlawful attack. This is justified and lawful. For an accused to be acquitted in terms of the
private defence of person, the attack and the defender’s response must meet certain
requirements.
Requirements for the attack
The first requirement is that the attack must be unlawful. In the case of R v Patel, the court
explained that in order to be acquitted on the grounds of self-defence, the accused must have
been unlawfully attacked.1 The second requirement is that the attack must have threatened a
legal interest which is worthy to protect using force. In the case of R v Patel, the court
established that an accused may be acquitted on the ground of self-defence, if it is evidently
clear that he was in danger of death or serious injury.2 The third requirement is that the attack
must be in progress.
Requirements for the defender’s response
The first requirement is that the use of force must have been necessary. In R v Patel, the court
held that for an accused to be acquitted in terms of the private defence of person, it must be
evidently clear that the means used to escape the attack were the only or least dangerous
means available.3 Furthermore, the law prefers retreating over the use of force to escape from
unlawful attacks. However, if resorting to force ensures maximum safety, it is permitted. In the
case of R v Zikalala, the Appellate Division held that an accused does not have an obligation
to risk his life upon reasonable alternative methods of escape.4
1
R v Patel 1959 (3) SA 121 (A).
2
Ibid.
3
R v Patel (See note 11 above).
4
R v Zikalala 1953 (2) SA 568 (A).
, The second requirement is that the amount of force used must have been reasonable. This
means that there must be a reasonable relationship between the attack and the defence. In
the case of S v Steyn, the Supreme Court of Appeal held that “the relationship between the
parties, their respective ages, genders and physical strengths, the location of the incident, the
nature, severity and persistence of the attack, the nature of any weapon used in the attack,
the nature and severity of any injury or harm likely to be sustained in the attack, the means
available to avert the attack, the nature of the means used to offer defence and the nature and
extent of the harm likely to be caused by the defence are relevant factors to determine whether
the accused acted reasonably to defend himself from the attack.”5
The speed of the attack and the speed of the consequent imminence of the harm must also
be considered when assessing the reasonableness of an accused’s response. In the case of
R v Patel, the court held that decisions made in situations of crisis in which there were alternate
options available must not be judged as if time and opportunity were afforded to make the
decision.6
The final requirement is that the force must have been directed against the unlawful attacker.
The individual cannot raise the private defence of person, if the force harmed a third innocent
person.
Application
Sally shot and killed Luke in defence of her life. Luke threatened to murder Sally and
immediately carried out an instantaneous attack. During the time that Sally pulled the trigger,
Luke was rushing towards her with a steak knife. This was an unlawful attack by Luke. This
attack threatened Sally’s life. Sally was in danger of death. Life is a legal interest which is
worthy to protect using force. The attack was in progress as Luke was rushing towards her
with a steak knife.
Luke started running towards Sally with a knife and this placed Sally in a moment of crisis.
Sally may have not been able to safely escape the attack by retreating. Sally resorted to the
only means available that ensured maximum safety. Sally does not have an obligation to risk
her life upon reasonable alternative methods of escape. Thus, the use of force was necessary
to protect her life and pulling the trigger was the only means available that ensured maximum
safety.
Sally being a female and a little advanced in age would have not been able to outpower Luke
or ward off Luke’s attack. Luke being a male is stronger than Sally. The incident occurred at
5
S v Steyn 2010 (1) SACR 411 (SCA).
6
R v Patel 1959 (3) SA 121 (A).
Issue
Can Sally successfully raise the private defence of person to justify killing Luke?
Relevant Law
Private defence of person (also referred to as self-defence) justifies the use of force or violence
against another person, if the force is used to defend oneself, or someone else, against an
unlawful attack. The law does not permit the use of force to kill another person. This is prima
facie unlawful. Nevertheless, the law does allow the use of force to defend oneself from an
unlawful attack. This is justified and lawful. For an accused to be acquitted in terms of the
private defence of person, the attack and the defender’s response must meet certain
requirements.
Requirements for the attack
The first requirement is that the attack must be unlawful. In the case of R v Patel, the court
explained that in order to be acquitted on the grounds of self-defence, the accused must have
been unlawfully attacked.1 The second requirement is that the attack must have threatened a
legal interest which is worthy to protect using force. In the case of R v Patel, the court
established that an accused may be acquitted on the ground of self-defence, if it is evidently
clear that he was in danger of death or serious injury.2 The third requirement is that the attack
must be in progress.
Requirements for the defender’s response
The first requirement is that the use of force must have been necessary. In R v Patel, the court
held that for an accused to be acquitted in terms of the private defence of person, it must be
evidently clear that the means used to escape the attack were the only or least dangerous
means available.3 Furthermore, the law prefers retreating over the use of force to escape from
unlawful attacks. However, if resorting to force ensures maximum safety, it is permitted. In the
case of R v Zikalala, the Appellate Division held that an accused does not have an obligation
to risk his life upon reasonable alternative methods of escape.4
1
R v Patel 1959 (3) SA 121 (A).
2
Ibid.
3
R v Patel (See note 11 above).
4
R v Zikalala 1953 (2) SA 568 (A).
, The second requirement is that the amount of force used must have been reasonable. This
means that there must be a reasonable relationship between the attack and the defence. In
the case of S v Steyn, the Supreme Court of Appeal held that “the relationship between the
parties, their respective ages, genders and physical strengths, the location of the incident, the
nature, severity and persistence of the attack, the nature of any weapon used in the attack,
the nature and severity of any injury or harm likely to be sustained in the attack, the means
available to avert the attack, the nature of the means used to offer defence and the nature and
extent of the harm likely to be caused by the defence are relevant factors to determine whether
the accused acted reasonably to defend himself from the attack.”5
The speed of the attack and the speed of the consequent imminence of the harm must also
be considered when assessing the reasonableness of an accused’s response. In the case of
R v Patel, the court held that decisions made in situations of crisis in which there were alternate
options available must not be judged as if time and opportunity were afforded to make the
decision.6
The final requirement is that the force must have been directed against the unlawful attacker.
The individual cannot raise the private defence of person, if the force harmed a third innocent
person.
Application
Sally shot and killed Luke in defence of her life. Luke threatened to murder Sally and
immediately carried out an instantaneous attack. During the time that Sally pulled the trigger,
Luke was rushing towards her with a steak knife. This was an unlawful attack by Luke. This
attack threatened Sally’s life. Sally was in danger of death. Life is a legal interest which is
worthy to protect using force. The attack was in progress as Luke was rushing towards her
with a steak knife.
Luke started running towards Sally with a knife and this placed Sally in a moment of crisis.
Sally may have not been able to safely escape the attack by retreating. Sally resorted to the
only means available that ensured maximum safety. Sally does not have an obligation to risk
her life upon reasonable alternative methods of escape. Thus, the use of force was necessary
to protect her life and pulling the trigger was the only means available that ensured maximum
safety.
Sally being a female and a little advanced in age would have not been able to outpower Luke
or ward off Luke’s attack. Luke being a male is stronger than Sally. The incident occurred at
5
S v Steyn 2010 (1) SACR 411 (SCA).
6
R v Patel 1959 (3) SA 121 (A).
