Excessive self-defence and criminal liability

JurisdictionSudáfrica
Citation(1999) 12 SACJ 143
Published date24 May 2019
Date24 May 2019
Pages143-154
ARTICLES • ARTIKELS
Excessive self-defence and
criminal liability
GEORGE MOUSOURAKIS*
Introduction
This article draws together and examines questions that arise in cases lying
on the borderline between provocation and self-defence. The discussion
focuses on the question of culpability for homicide in imperfect or excessive
self-defence cases, and on how such cases are dealt with under current legal
doctrine. Attention is drawn to doctrinal issues that emerge from a
comparative examination of self-defence and provocation in the light of
the theory of justification and excuse. It is argued that in so far as killing by
using excessive force in defence cannot be said to be partially justified, such
cases may be treated under either provocation or a partial excuse of honest
mistake relating to conditions of justification. The latter defence — if such a
general defence were to be recognized — should rest on the assumption that
a mistaken belief as to the amount of defensive force needed, unreasonable
though it may be, eliminates the degree of moral culpability required for
murder.
Self-defence as a justification
When an accused pleads self-defence, or another justification-based defence,
her claim is that her harm-causing conduct was, in the circumstances, lawful
or permissible. A distinction has been proposed between what is referred to
as the 'implicit elements' approach and the 'licence' approach to legal
justification.
1
According to the implicit elements approach, when an accused
acts under a valid justification, e g self-defence, he or she cannot commit the
offence charged. Her conduct may have satisfied all the explicit elements
of the offence, as provided for by the offence definition, but it has not
* PhD,
Lecturer in Law, University of Queensland, Australia.
1
See DH Husak,
Philosophy of Criminal Law
(1987).
143
(1999) 12 SACJ 143
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