Self-defence, the more you know ……
In a country riddled with the cruellest forms of violence aimed at women, children and minorities, self-defence as a defence against criminal prosecution is frequently offered by accused persons. It is therefore of great importance to better understand the defence itself and what the exact legal repercussions would be if the limits of self-defence would be exceeded.
What is Self-defence?
Self-defence is part of the wider concept of private defence (the defence against the attack of oneself, one’s interests, someone else or their interests). The general doctrine in English law is that in the act of self-defence, one can act in ways that otherwise would be illegal, such to include acts to prevent injury to one’s own body or others’ bodily interests, or to prevent criminal acts. It is accepted that one has the same right to protect another’s as the right to protect oneself. At common law the defence of self-defence operates in three spheres:
- it allows a person to use reasonable force to firstly defend himself from an attack,
- to prevent an attack on another person and
- to defend his property.
It is of great importance to understand that the South African legal system expects a person to seek other alternatives, such as going to the police or the courts, rather than taking the law into his or her own hands. Where these alternatives are not reasonably available the law permits a person to act on his or her own behalf thus self defence is a “last resort” option at best.
Self-defence therefore needs certain elements to be justifiable can be as follows:
- A “defender” must use force to fend off an unlawful attack;
- Upon his life, bodily integrity or other protected interests (that is worthy of being protected).
- The attack must have started or must be imminently threatening (but could not already have been completed (therefore self-defence can’t be in the form of retaliation).
- The defender must have reasonably believed he is actually acting in self-defence
- The act of self-defence was necessary in protection against the attack in question.
- The defensive act must have been taken against the attacker;
- And must be no more harmful than absolutely necessary (proportionality).
Exceeding the limits of self-defence.
In South African context, exceeding the limits of self-defence has the legal result of the defence having never been used at all, if for example A attacks B with an open hand (slaps B) and it can be seen that it wasn’t A’s intention to kill B and that B, in believing he is acting in self-defence shoots A resulting in A’s death, B could easily be found guilty of murder in its totality. The balance between the initial attack and the retaliation was not seen as proportional.
Although the above is true, the courts can view as a mitigating factor when he /she is sentenced, the fact that B, whilst exceeding the limits, acted in self-defence.
With the above in mind writer would recommend to avoid acting in “self-defence” as “self-defence” in common situations that lead to court cases such as bar fights, home invasions and road rage incidents are vigorously tested by the prosecution and can easily fall flat under cross examination. This in turn lead to persons being found guilty of crimes such as assault, assault with the intent to commit grievous bodily harm, attempted murder and in some serious cases even murder, all whilst they still believe they acted in self-defence.
Article by: Patrick Vosloo, Practising Attorney (Criminal Law, Labour Law, Firearms and Liquor licensing)