Recent Case: General principles and specific offences

• Pages: 751-760
• Author: Hoctor, S.
• Published date: 04 March 2021
• Date: 04 March 2021
• DOI: https://doi.org/10.47348/SACJ/v33/i3a12
• Citation: (2020) 33 SACJ 751

General principles and specic

offences

SHANNON HOCTOR

University of Kwazulu-Natal, Pietermaritzburg

1 General principles

1.1 Private defence/putative private defence

The case of S v Makaula 2020 JDR 1746 (ECM) dealt with an appeal

against a murder conviction. The basis for the conviction was that

the appellant stabbed the deceased to death following a confrontation

between them outside a tavern. The appellant alleged that he had

acted in self-defence, as the deceased had threatened him with an

empty bottle. The existence of the bottle was however placed in

doubt by the State witness, and the trial cour t had not accepted that a

bottle had featured at all in the confrontation. It has been previously

accepted in the case law that an empty bot tle could be regarded as a

weapon which could be used in an unlawful attack, leading in tur n

to a successful reliance on the justication ground of private defence.

A notable example of this may be found in the Appellate Division case

of S v Teixeira 1980 (3) SA 755 (A), where the deceased had allegedly

stolen some chocolates from the appellant’s store, and when the

appellant approached the deceased, the deceased advanced towards

the appellant ‘evincing a clear intention of striking him with the bott le’

(at 765). The subsequent shooting of the deceased by the appellant,

when he was less than a metre away from him, was held to found

private defence: ‘the State failed to prove beyond any reasonable doubt

that appellant’s conduct in killing the deceased was not justied, ie

that he had acted unlawful ly’ (ibid).

Though the mysterious bottle could not be properly identied by

the defence witness, or indeed the appellant, who testied that when

he stabbed the deceased he did not see the bottle (at para [32]), the

court seems to have not discarded the possibil ity of it being present

in its assessment of the appellant’s liability (see para [34]). Wh ile the

court commendably sets out the requirements for the test for private

defence and putative private defence (at paras [26]–[28]) relying on

RECENT CASES

751

https://doi.org/10.47348/SACJ/v33/i3a12

(2020) 33 SACJ 751

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