Criminal Law
314
Bonny-Lyle Young
[]
2 Year PG LLB
, Criminal Law 314
Theme 4: Unlawfulness
Week 5: Unlawfulness
Date to do: Content: Activity:
Tuesday, 11 March Hoctor / Snyman 79-85
Introduction to Unlawfulness Podcast
Quiz
Hoctor / Snyman 86-95
Burchell 121-142
Private Defence Podcast
Quiz
Attack Requirements 1 Podcast
Quiz
Attack Requirements 2 Podcast
Quiz
Wednesday, 12 Attack Requirements 3 Podcast
March Quiz
Hoctor / Snyman 88-95
Defensive Conduct 1 Podcast
Quiz
Monday, 17 March Defensive Conduct 2 Podcast
Quiz
Defensive Conduct 3 Podcast
Quiz
Defensive Conduct 4 Podcast
Quiz
S v Engelbrecht Case
Ex parte die Minister van Justisie: In re S v Van Case
Wyk
Tuesday, 18 March Necessity 1 Podcast
Quiz
Necessity 2 Podcast
Quiz
Wednesday, 19 Necessity 3 Podcast
March Quiz
S v Goliath Case
Monday, 24 March Intro to Consent Podcast
Quiz
Consent Recognised by law Podcast
Quiz
Consent assault details Podcast
Quiz
Tuesday, 25 March Real Consent Podcast
Quiz
Capacity to consent Podcast
Quiz
Bonny-Lyle Young 26079232
, Criminal Law 314
Prescribed Material:
- Hoctor / Snyman: 79-84; 85-95; 95-102; 102-106.
- Burchell: 114-117; 121-142; 164-186; 208-237.
Concept Maps:
- Unlawfulness Introduction Concept Map
- Private Defence Concept Map
- Necessity Concept Map
- Consent Concept Map
Problem Question:
- Problem question 1-3
Case Law
Private Defence:
S v Engelbrecht 2005 (2) SACR 41 (W) (prescribed): FOCUS ON: headnote; paras 1-
22; 214-249; 327-449.
o Guidelines and questions related to reading the Engelbrecht case
S v Mogohlwane 1982 (2) SA 587 (T) (not prescribed)
Ex Parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488
(A) (prescribed)
Ex Parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488
(A) (ENGLISH TRANSLATION)
o Guidelines and questions related to reading the Van Wyk case
S v T 1986 (2) SA 112 (O) (not prescribed)
S v Trainor 2003 (1) SACR 35 (SCA) (not prescribed)
S v Steyn 2010 (1) SACR 411 (SCA) (not prescribed)
S v Botha 2019 (1) SACR 127 (SCA) (not prescribed)
Necessity
R v Canestra 1951 (2) SA 317 (A) (not prescribed)
S v Bradbury 1967 (1) SA 387 (A) (not prescribed)
S v Pretorius 1975 (2) SA 85 (SWA) (not prescribed)
S v Malan 1998 (2) SACR 143 (C) (not prescribed)
R v Dudley & Stephens [1884] 14 QB 273 (not prescribed)
Re A: Conjoined Twins (2001) Fam 147 report (not prescribed)
S v Goliath 1972 (3) SA 1 (A) (prescribed)
S v Goliath 1972 (3) SA 1 (A) [ENGLISH TRANSLATION]
o Guidelines and questions related to reading the Goliath case
Consent:
S v Hartmann 1975 (3) SA 532 (C) (not prescribed)
S v Nkwanyana 2003 (1) SACR 67 (W) (not prescribed)
Stransham-Ford v Minister of Justice and Correctional Services and
others 2015 (4) SA 50 (GP) (not prescribed)
Minister of Justice and Correctional Services v Estate Stransham-Ford 2017
(3) SA 152 (SCA) (not prescribed)
Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T) (not prescribed)
S v W en ’n ander 2004 (1) SACR 460 (C) (not prescribed)
Other sources / Ander bronne
South African Law Reform Commission report: “Euthanasia and the Artificial
Preservation of Life” Project 86 (November 1998) [extract / uittreksel] (not
prescribed)
Section 129 Children's Act 38 of 2005 / Artikel 129 Kinderwet 38 van 2005 (not
Bonny-Lyle Young 26079232
, Criminal Law 314
- Unlawfulness -
This Criminal Law theme is about the element of the crime UNLAWFULNESS. Here you
will find all the sources you need (podcasts, case law, textbook references, quizzes, etc.) to
make a success of this section of the work. After studying this work you will be able to to
decide whether a ground of justification excluding unlawfulness is applicable to the facts;
which ground of justification may apply; and whether all the requirements for that particular
ground of justification have been complied with.
Tuesday, 11 March 2025
Wednesday 13 March 2025
Introduction to unlawfulness
Brand new element of a crime
“Unlawfulness = invisible requirements of liability” – SNYMAN
This is because it doesn’t necessarily form part of the wording of a legal
rule or definition of a crime but it still needs to be proven beyond
reasonable doubt
Even if conduct looks like it matches the definition of a crime, it will not
necessarily be unlawful
The circumstances under which it was committed may justify what was
done
For example:
X uses a sharp blade to cut at Y’s tummy.
This can look like assault or attempted murder
But what if X is a doctor and has “stabbed” Y as part of an operation /
medical procedure, one to which Y has given consent?
o Our law recognises that conduct may look bad/wrong in certain
instances, but it is indeed acceptable and allowed in the eyes of the
law
o In such cases, society feels that the conduct need not be punished,
despite what it may look like (death in a risky surgery vs murder)
o Such conduct will be “justified”
“an unlawful act” = conduct not justified i.t.o. the criteria of unlawfulness
i.e. when we establish something as being unlawful, we are not actually
looking for the presence of unlawfulness per say.
o instead, we are inquiring into the absence of something
o this something will be the justification which we are looking for
o we are looking on the face of it, prima facie, as if it is unlawful.
Bonny-Lyle Young 26079232
, Criminal Law 314
What can justify unlawful conduct?
Unlawful conduct is justified by the presence of a defence, excluding
unlawfulness
- A ground of justification
- This is a situation or circumstance which has crystalised out over
the years, and our law doesn’t blame people for doing things that
look like criminal conduct
What is the standard against which we measure
whether conduct is lawful or unlawful?
- The standard or criteria we apply is simply:
- The legal convictions of the community; or
- i.e. the community’s perception of justice; or
- bone mores (good morals)
grounds of justification:
Ground for justification = defence given by the accused
o When the legal convictions of the community require that an act,
that seems to break the law, be regarded as lawful
o and conversely, unlawful conduct is conduct which is contrary to the
community’s perceptions of justice, or the legal convictions of the
community.
Not necessarily a closed list:
Should circumstances arise where we want to add a defence, excluding
unlawfulness, and to do so would be in accordance with justice or the
legal convictions of the community
- this ought to be permissible
- will not contravene the principle of legality to do so
- will benefit the accused (in faverum libertatus)
The onus of proving unlawfulness still rests on the State
thus, the prosecution will have to prove beyond reasonable
doubt
that the accused’s conduct complies with the element of a
crime; AND that it was unlawful
- the accused does not have to prove the requirements of a ground
of justification if the accused raised a ground of justification as a
defence
the State will have to disprove the existence of that ground of
justification, beyond reasonable doubt
if the State cannot do this, then the accused will be acquitted
Bonny-Lyle Young 26079232
, Criminal Law 314
conduct that complies with the formal definition of a crime:
= unlawful conduct
This is unless it can be justified through a ground of justification in
accordance with the legal convictions of the community
But unlawful conduct may be regarded as lawful conduct through
grounds of justification
grounds of justification
defence excluding unlawfulness
Private Defence Necessity Consent
More grounds which will be discussed at a later time
Impossibility Entrapment Public authority
Superior orders De minimis non curat lex Negotiorum gestio
(Military orders) (Acting on someone
else’s behalf)
Disciplinary chastisement
Corporal punishment
No longer a ground of
justification
May no longer be done in
schools, and also not in homes
grounds of justification
defence excluding unlawfulness
Private Defence Necessity Consent
Inevitable evil / Danger
The attack must be an An unlawful human
unlawful attack An animal
A natural disaster
Attack must be against a
recognised legal interest
Against a recognised legal
The attack must have interest
commenced of be Having commenced or is
imminent imminent
Not caused by the accused’s own
fault
Defensive conduct
Necessary Absolute necessity
A reasonable response
Aimed against the unlawful Absolute proportionality
attacker
Bonny-Lyle Young 26079232
, Criminal Law 314
Private defence as a ground for justification
self-defence: protecting yourself from an attack by using force against
your attacker
private defence includes “self-defence” and extends even further on
you are allowed to protect yourself and other when warding off an
unlawful attack
why do we have this defence?
POD of criminal law is that people are not allowed to resort to
force or violence to protect their own interests, or the interests
of others
The idea of the social contract is that we all collectively abandon the
concept of self-help
o And instead entrust the State with the task of protecting and
enforcing our rights, which acts on our behalf
o Thus, we don’t have to track down, beat up and recollect the phone
of yours which was stolen by a thief
o Instead, we report the crime to the police and let the criminal
justice system take its course Police & courts hold the responsibility of investigating
and punishing
o Burchell:
permitting and condoning private vengeance, retaliation and other forms
of self-help, would to be to the detriment of peace, order and the rule of
But the authorities are not available 24/7 to protect persons from an attack!!
And the law recognises this…
Thus, one of the residual and inherent rights we all have is to temporarily act on behalf of the state in
upholding law in an emergency
This is not an open invitation for self-help and vigilantism to take the law into their own hands
law
Private defence is only allowed in very limited circumstances:
If the bounds of its limits are If within bounds
exceeded,
the accused’s conduct will then be Then it will be justified in terms of the legal
unlawful convictions of the community
This is so, even if the defensive conduct looks
like a VERY serious crime and conduct on the
face of it (e.g. murder, attempted murder,
assualt)
Requirements for private defence:
I. You may defend yourself, or another person, against someone who
has already/ is about to launch an unlawful attack upon the person/
property/ recognised interests, either of yourself or of someone else
II. Your defensive conduct must be intended to repel the unlawful
attack
III. It must be necessary to protect the threatened interests
Bonny-Lyle Young 26079232
314
Bonny-Lyle Young
[]
2 Year PG LLB
, Criminal Law 314
Theme 4: Unlawfulness
Week 5: Unlawfulness
Date to do: Content: Activity:
Tuesday, 11 March Hoctor / Snyman 79-85
Introduction to Unlawfulness Podcast
Quiz
Hoctor / Snyman 86-95
Burchell 121-142
Private Defence Podcast
Quiz
Attack Requirements 1 Podcast
Quiz
Attack Requirements 2 Podcast
Quiz
Wednesday, 12 Attack Requirements 3 Podcast
March Quiz
Hoctor / Snyman 88-95
Defensive Conduct 1 Podcast
Quiz
Monday, 17 March Defensive Conduct 2 Podcast
Quiz
Defensive Conduct 3 Podcast
Quiz
Defensive Conduct 4 Podcast
Quiz
S v Engelbrecht Case
Ex parte die Minister van Justisie: In re S v Van Case
Wyk
Tuesday, 18 March Necessity 1 Podcast
Quiz
Necessity 2 Podcast
Quiz
Wednesday, 19 Necessity 3 Podcast
March Quiz
S v Goliath Case
Monday, 24 March Intro to Consent Podcast
Quiz
Consent Recognised by law Podcast
Quiz
Consent assault details Podcast
Quiz
Tuesday, 25 March Real Consent Podcast
Quiz
Capacity to consent Podcast
Quiz
Bonny-Lyle Young 26079232
, Criminal Law 314
Prescribed Material:
- Hoctor / Snyman: 79-84; 85-95; 95-102; 102-106.
- Burchell: 114-117; 121-142; 164-186; 208-237.
Concept Maps:
- Unlawfulness Introduction Concept Map
- Private Defence Concept Map
- Necessity Concept Map
- Consent Concept Map
Problem Question:
- Problem question 1-3
Case Law
Private Defence:
S v Engelbrecht 2005 (2) SACR 41 (W) (prescribed): FOCUS ON: headnote; paras 1-
22; 214-249; 327-449.
o Guidelines and questions related to reading the Engelbrecht case
S v Mogohlwane 1982 (2) SA 587 (T) (not prescribed)
Ex Parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488
(A) (prescribed)
Ex Parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488
(A) (ENGLISH TRANSLATION)
o Guidelines and questions related to reading the Van Wyk case
S v T 1986 (2) SA 112 (O) (not prescribed)
S v Trainor 2003 (1) SACR 35 (SCA) (not prescribed)
S v Steyn 2010 (1) SACR 411 (SCA) (not prescribed)
S v Botha 2019 (1) SACR 127 (SCA) (not prescribed)
Necessity
R v Canestra 1951 (2) SA 317 (A) (not prescribed)
S v Bradbury 1967 (1) SA 387 (A) (not prescribed)
S v Pretorius 1975 (2) SA 85 (SWA) (not prescribed)
S v Malan 1998 (2) SACR 143 (C) (not prescribed)
R v Dudley & Stephens [1884] 14 QB 273 (not prescribed)
Re A: Conjoined Twins (2001) Fam 147 report (not prescribed)
S v Goliath 1972 (3) SA 1 (A) (prescribed)
S v Goliath 1972 (3) SA 1 (A) [ENGLISH TRANSLATION]
o Guidelines and questions related to reading the Goliath case
Consent:
S v Hartmann 1975 (3) SA 532 (C) (not prescribed)
S v Nkwanyana 2003 (1) SACR 67 (W) (not prescribed)
Stransham-Ford v Minister of Justice and Correctional Services and
others 2015 (4) SA 50 (GP) (not prescribed)
Minister of Justice and Correctional Services v Estate Stransham-Ford 2017
(3) SA 152 (SCA) (not prescribed)
Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T) (not prescribed)
S v W en ’n ander 2004 (1) SACR 460 (C) (not prescribed)
Other sources / Ander bronne
South African Law Reform Commission report: “Euthanasia and the Artificial
Preservation of Life” Project 86 (November 1998) [extract / uittreksel] (not
prescribed)
Section 129 Children's Act 38 of 2005 / Artikel 129 Kinderwet 38 van 2005 (not
Bonny-Lyle Young 26079232
, Criminal Law 314
- Unlawfulness -
This Criminal Law theme is about the element of the crime UNLAWFULNESS. Here you
will find all the sources you need (podcasts, case law, textbook references, quizzes, etc.) to
make a success of this section of the work. After studying this work you will be able to to
decide whether a ground of justification excluding unlawfulness is applicable to the facts;
which ground of justification may apply; and whether all the requirements for that particular
ground of justification have been complied with.
Tuesday, 11 March 2025
Wednesday 13 March 2025
Introduction to unlawfulness
Brand new element of a crime
“Unlawfulness = invisible requirements of liability” – SNYMAN
This is because it doesn’t necessarily form part of the wording of a legal
rule or definition of a crime but it still needs to be proven beyond
reasonable doubt
Even if conduct looks like it matches the definition of a crime, it will not
necessarily be unlawful
The circumstances under which it was committed may justify what was
done
For example:
X uses a sharp blade to cut at Y’s tummy.
This can look like assault or attempted murder
But what if X is a doctor and has “stabbed” Y as part of an operation /
medical procedure, one to which Y has given consent?
o Our law recognises that conduct may look bad/wrong in certain
instances, but it is indeed acceptable and allowed in the eyes of the
law
o In such cases, society feels that the conduct need not be punished,
despite what it may look like (death in a risky surgery vs murder)
o Such conduct will be “justified”
“an unlawful act” = conduct not justified i.t.o. the criteria of unlawfulness
i.e. when we establish something as being unlawful, we are not actually
looking for the presence of unlawfulness per say.
o instead, we are inquiring into the absence of something
o this something will be the justification which we are looking for
o we are looking on the face of it, prima facie, as if it is unlawful.
Bonny-Lyle Young 26079232
, Criminal Law 314
What can justify unlawful conduct?
Unlawful conduct is justified by the presence of a defence, excluding
unlawfulness
- A ground of justification
- This is a situation or circumstance which has crystalised out over
the years, and our law doesn’t blame people for doing things that
look like criminal conduct
What is the standard against which we measure
whether conduct is lawful or unlawful?
- The standard or criteria we apply is simply:
- The legal convictions of the community; or
- i.e. the community’s perception of justice; or
- bone mores (good morals)
grounds of justification:
Ground for justification = defence given by the accused
o When the legal convictions of the community require that an act,
that seems to break the law, be regarded as lawful
o and conversely, unlawful conduct is conduct which is contrary to the
community’s perceptions of justice, or the legal convictions of the
community.
Not necessarily a closed list:
Should circumstances arise where we want to add a defence, excluding
unlawfulness, and to do so would be in accordance with justice or the
legal convictions of the community
- this ought to be permissible
- will not contravene the principle of legality to do so
- will benefit the accused (in faverum libertatus)
The onus of proving unlawfulness still rests on the State
thus, the prosecution will have to prove beyond reasonable
doubt
that the accused’s conduct complies with the element of a
crime; AND that it was unlawful
- the accused does not have to prove the requirements of a ground
of justification if the accused raised a ground of justification as a
defence
the State will have to disprove the existence of that ground of
justification, beyond reasonable doubt
if the State cannot do this, then the accused will be acquitted
Bonny-Lyle Young 26079232
, Criminal Law 314
conduct that complies with the formal definition of a crime:
= unlawful conduct
This is unless it can be justified through a ground of justification in
accordance with the legal convictions of the community
But unlawful conduct may be regarded as lawful conduct through
grounds of justification
grounds of justification
defence excluding unlawfulness
Private Defence Necessity Consent
More grounds which will be discussed at a later time
Impossibility Entrapment Public authority
Superior orders De minimis non curat lex Negotiorum gestio
(Military orders) (Acting on someone
else’s behalf)
Disciplinary chastisement
Corporal punishment
No longer a ground of
justification
May no longer be done in
schools, and also not in homes
grounds of justification
defence excluding unlawfulness
Private Defence Necessity Consent
Inevitable evil / Danger
The attack must be an An unlawful human
unlawful attack An animal
A natural disaster
Attack must be against a
recognised legal interest
Against a recognised legal
The attack must have interest
commenced of be Having commenced or is
imminent imminent
Not caused by the accused’s own
fault
Defensive conduct
Necessary Absolute necessity
A reasonable response
Aimed against the unlawful Absolute proportionality
attacker
Bonny-Lyle Young 26079232
, Criminal Law 314
Private defence as a ground for justification
self-defence: protecting yourself from an attack by using force against
your attacker
private defence includes “self-defence” and extends even further on
you are allowed to protect yourself and other when warding off an
unlawful attack
why do we have this defence?
POD of criminal law is that people are not allowed to resort to
force or violence to protect their own interests, or the interests
of others
The idea of the social contract is that we all collectively abandon the
concept of self-help
o And instead entrust the State with the task of protecting and
enforcing our rights, which acts on our behalf
o Thus, we don’t have to track down, beat up and recollect the phone
of yours which was stolen by a thief
o Instead, we report the crime to the police and let the criminal
justice system take its course Police & courts hold the responsibility of investigating
and punishing
o Burchell:
permitting and condoning private vengeance, retaliation and other forms
of self-help, would to be to the detriment of peace, order and the rule of
But the authorities are not available 24/7 to protect persons from an attack!!
And the law recognises this…
Thus, one of the residual and inherent rights we all have is to temporarily act on behalf of the state in
upholding law in an emergency
This is not an open invitation for self-help and vigilantism to take the law into their own hands
law
Private defence is only allowed in very limited circumstances:
If the bounds of its limits are If within bounds
exceeded,
the accused’s conduct will then be Then it will be justified in terms of the legal
unlawful convictions of the community
This is so, even if the defensive conduct looks
like a VERY serious crime and conduct on the
face of it (e.g. murder, attempted murder,
assualt)
Requirements for private defence:
I. You may defend yourself, or another person, against someone who
has already/ is about to launch an unlawful attack upon the person/
property/ recognised interests, either of yourself or of someone else
II. Your defensive conduct must be intended to repel the unlawful
attack
III. It must be necessary to protect the threatened interests
Bonny-Lyle Young 26079232
