The double life of unlawfulness: Fact and law

• Jurisdiction: South Africa
• Date: 24 May 2019
• Pages: 1-16
• Published date: 24 May 2019
• Author: James Grant

ARTICLES

The double life of unlawfulness:

fact and law

JAMES GRANT

*

ABSTRACT

This article examines the distinction between questions of fact and law in

enquires into unlawfulness and grounds of justification. It argues that these

enquiries comprise both questions of law and fact and that failure to recognise

this may lead to arbitrariness or impede the development of the law of

unlawfulness.

Introduction

There are several tests available to determine unlawfulness:objective, reality

fact-oriented, thelegal convictions of the community and, the test of the rea-

sonable person. Which of these tests is appropriate to test unlawfulness

must be determined to avoid divergent decisions and possible arbitrariness.

It will be argued that these tests can be reconciled and resolved down

into two components of the enquiry of unlawfulness, both being objec-

tive: a normative (legal) and factual component. Also, it will be argued

that this dual component analysis must be observed in order to permit

the proper functioning of the normative component that is for the law of

unlawfulness and grounds of justification to be declared and observed.

Where determinations of fact are permitted to interfere with questions of

law miscarriages may occur.

* B Proc LLB BA Hons (psyc) PhD Candidate, Advocate of the High Court of South Africa.I

dedicate this article to Professor Andrew Skeen whose passing has taken from us a brilliant

legal mind but also a brave, caring and steadfast mentor, colleague and friend. I am

grateful to have received his comments and guidance on this article but sad that it was the

last conversation I will ever have with him. I am also indebted to Professors Angelo

Pantazis and Andrew Paizes for their support and insightful comments on previous drafts

and to Professor Roger Whiting for his comments on some of the arguments made here.

1

(2007) 20 SACJ 1

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The recent case of Engelbrecht

1

raises this issue and will be referred

to to illustrate the arguments presented here.

Test of unlawfulness

The focus of this section is to determine what the test and nature of the

unlawfulness enquiry is. The test for unlawfulness, and the associated

grounds of justification,

2

is objective in that it is not concerned with the

subjective perceptions of the accused.

3

Whether, for instance, private defence may be resorted to will be

determined upon an examination of the circumstances in which the

accused acted and not from the perspective of the circumstances as the

accused perceived them to be.

4

The enquiry is based on the circum-

stances ‘in fact’,

5

judged from an external perspective.

6

This postulates

what may be termed a reality based enquiry.

Yet the ultimate test of unlawfulness, as for the grounds of justifica-

tion, is the legal convictions of the community,

7

now as informed by the

values in the Constitution.

8

Nonetheless, there is some precedent for the

notion that the test of unlawfulness and the grounds of justification, such

as private defence and necessity, is determined by reference to what the

reasonable person would have done.

9

Further, there is apparent confu-

sion as to whether a mistake relating to unlawfulness is a mistake of law

or fact.

10

1

S v Engelbrecht 2005 (2) SACR 41 (WLD). See generally A Pieterse-Spies ‘A South African

Perspective on Battered Women Who Kill Their Abusive Partners’ (2006) 69 THRHR;M

Reddi ‘General Principles: Private Defence’ (2005) 3 SACJ 335; J Burchell Principles of

Criminal Law 3ed Revised (2006) 451-3; E Bonthuys, TL Field, S Mills, A Pieterse-Spies and

L Wolhuter ‘Gender’ in The Law of South Africa (2005).

2

Which are merely crystallised and well recognised exceptions to unlawfulness, such as

private or self defence, necessity, and consent: CR Snyman Criminal Law 4ed (2002)

96.

3

S v Goliath 1972 (3) SA 1 (A); JC De Wet Strafref 4ed (1985) 69; S v Ntuli 1975 (1) SA

429 (A); S v Motleleni 1976 (1) SA 403 (A).

4

Ntuli supra (n3); S v De Oliveira 1993 (2) SACR 59 (A).

5

Snyman op cit (n2) 111.

6

J Burchell Principles of Criminal Law 3ed (2005) 242.

7

S v Chretien 1981 (1) SA 1097 (A) at 1103D-F; S v Gaba 1981 (3) SA 745 (O) at 751;

Clarke v Hurst NO 1992 (4) SA 630 (D); S v Fourie 2001 (2) SACR 674 (C) at 681A-B.

8

The Constitution of the Republic of South Africa, 1996. See Carmichele v Minister of

Safety and Security 2001 (4) SA 938 (CC); Snyman op cit (n2) 95; Minister of Safety and

Security v Van Duivenboden 2002 (6) SA 431 (SCA); Van Eeden v Minister of Safety

and Security 2003 (1) SA 389 (SCA).

9

Goliath supra (n3) at 26; S v Peterson 1980 (SA) SA 938 (A); Motleleni supra (n3) at

406C; Ntuli supra (n3) at 436; De Oliveira supra (n4) at 63; R v Patel 1959 (3) SA 121

(A) at 123; R v Jack Bob 1929 SWA 32.

10

JCW van Rooyen ‘Regsdwaling en Dolus in die Strafreg’ (1974) 37 THRHR 5, 31.

2SACJ *(2007) 1

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