Homicide in defence of property in an age of constitutionalism
| Jurisdiction | South Africa |
| Published date | 03 September 2019 |
| Author | Dane Ally |
| Pages | 121-136 |
| Date | 03 September 2019 |
ARTICLE
Homicide in defence of property
in an age of constitutionalism
DANE ALLY* AND FRANS VILJOEN**
ABSTRACT
This article examines the constitutionality of the common-law rule that one person
may kill another in defence of property. This rule is mostly associated with
Ex parte
Minister van Justisie: In re: S v Van Wyk.
The authors draw a clear distinction between
the use of violence (including homicide) in defence of life and limb, on the one hand,
and in defence of property, on the other. Most decided cases illustrate the close link
between the private defence of defending life and of protecting property. The
Constitutional Court recently declared unconstitutional s 49(2) of the Criminal
Procedure Act (allowing blameless killing to effect arrest). No court has yet
pronounced on the
Van Wyk
rule. Authors differ about its constitutionality. In this
article, following the two-phased approach to constitutional interpretation, the
authors conclude that the rule is unconstitutional: The serious limitation of rights
which the rule causes is not justifiable in terms of s 36 of the Constitution.
Introduction
In terms of our common law, a person may lawfully kill to protect property.'
The Constitution
2
dictates that the common law should be developed with a
view to giving effect to constitutional values.
3
The purpose of this article is to
consider whether this common-law rule withstands constitutional scrutiny.
This question seems all the more pertinent against the background of
continuous reports of people using lethal force to protect life and property.
4
* BA (Law) (UWC) BProc (UNISA) LLM (UP),
Lecturer•, Technikon Pretoria.
** LLB LLD (Pret) LLM (Cantab),
Professor of Law, University of Pretoria.
1
Ex Parte Minister van Justisie: In re S v Van Wyk
S v Mogohlwane
1982 (2)
SA 587 (T).
2
Act 108 of 1996.
3
Section 39(2) provides as follows: When interpreting any legislation, and when developing
the common law or customary law, every court, tribunal or forum must promote the spirit,
purport and objects of the Bill of Rights'.
4
For example, see the correspondence in
The Star,
30 December 2002, 2, 6 and 9 January 2003,
The Sunday Times,
29 December 2002 and Self-defence killings divide SA,'
Mail & Guardian
121
(2003) 16 SACJ 121
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122
SACJ •
(2003) 16
Pre-constitutional era
In the era before the 1993 and 1996 Constitutions, that is, the period
predating the introduction of a justiciable Bill of Rights as supreme law,
judicial development of self-defence took place on the basis of public policy.
The duty to develop the common law then, as it does now, fell to the courts.
Although private defence in protection of property is mostly associated with
the decision in
Ex parte Minister van Justisie: in re S v Van Wyk,
5
a number of
cases decided before
Van Wyk
are also relevant.
Pre
-
Van
Wyk
Three cases from the period before
Van Wyk
are discussed here. Milton,
6
writing after the
Van Wyk
judgment, shows that
Van Wyk
was not the first
case in South Africa dealing with this question. In 1832, in an unreported
case, Kakewich J acquitted a young farmer who had killed a cattle thief who
was driving off the cattle that had been stolen from him (the farmer). The
Governor of the Cape Colony at the time, Sir Benjamin D'Urban,
subsequently submitted to the Cape Supreme Court the question whether
existing laws in the Colony entitled inhabitants of the frontier districts to 'do
which is necessary' to prevent housebreaking and theft. The court answered
that inhabitants were justified in 'killing any persons' in defence of their
property. In support of its finding, the court referred to Grotius'
De iure belli
ac pacis: ' . . .
the thief flying with his plunder may, if the goods cannot
otherwise be recovered, be slain with a missile ...'.
7
On this basis, the court
limited the exercise of the right to circumstances where it was not possible to
prevent the theft in any other way. This requirement is linked to the further
one that deadly force may only be used if the thief defends himself forcibly.
In this case, the court did not restrict the right of using lethal force to the
owner of property, but opened the door to slaves and other third parties
present on, or in possession of the property, to use lethal force to preserve
property.
In
R v Stephen,
8
the accused stabbed an intruder to death whom he
thought had either the intention to steal or to attack him. The facts of this case
show that self-defence in defence of life and of property can be and are often
on line,
8 January 2003. The event sparking the debate was the repeated stabbing of a man
who broke into a couple's caravan. One of the recurring themes of this article is introduced, in
that the defence of property (the caravan) is closely linked to the defence of bodily integrity
(the intruder tried to rape the woman).
5
S v Van Wyk
(n1) and J Burchell and J Milton
Principles of Criminal Law
(Revised reprint
February 2002) 145.
6
J R L Milton 'Killing in defence of property: An historical footnote' (1968) 85
SALJ
327.
2.1.11, quoted in the original Latin.
8
1928 WLD 170.
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