Excessive self-defence and criminal liability

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Citation: (1999) 12 SACJ 143
• Author: George Mousourakis
• Date: 24 May 2019
• Pages: 143-154

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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