The two reasons for the existence of private defence and their effect on the rules relating to the defence in South Africa

• Jurisdiction: South Africa
• Citation: (2004) 17 SACJ 178
• Published date: 03 September 2019
• Author: CR Snyman
• Date: 03 September 2019
• Pages: 178-192

The two reasons for the existence

of private defence and their effect

on the rules relating to the defence in

South Africa

CR SNYMAN*

ABSTRACT

There are two reasons for the existence of private defence in criminal law. The first is

the individual-protection theory, according to which private defence is aimed at

protecting the particular individual

who relies on this defence against an unlawful

attack. In this theory the individualistic notion of self-defence is predominant. One of

the effects of this theory is that a person does not have the right to assume the duties

of the police by protecting what he or she subjectively believes to be the interests of

justice. The second reason underlying the defence is that private defence

serves to

uphold justice.

Here, the emphasis is on preventing justice yielding to injustice. The

person acting in private defence acts in place of the state or police, because it is

impossible for the police always to protect everybody in society wherever they may

find themselves. At issue in all instances of private defence is the clash between justice

and injustice. This theory explains inter alia why the attack must be unlawful, why

proactive action by the attacked party is permissible, why there is no duty on the

attacked party to flee from the danger, why the attacked party must consciously act in

private defence, why one is entitled to protect also another party in private defence,

and why it is the attacking party, and not the defending party, who should carry the

risk of the consequences (death or injury) flowing from his or her action.

Introduction

The ground of justification known as private defence is an ancient one, and

in the historical development of criminal law it never gained a place: rather, it

merely maintained its place. In fact, because it forms part of the universally

recognised natural-law requisites for upholding a legally ordered society it

*



BA, LLD,

Professor of Criminal and Procedural Law, University of South Africa.

The research

that made it possible for the author to write this article was undertaken with financial

assistance from the Research Committee of the University of South Africa. The research was

done at the

Max-Planck-Institut fur ausländisches and internationales Strafrecht

in Freiburg,

Germany. The author wishes to thank the University of South Africa for the financial

assistance that made this research possible. Opinions expressed in this article or conclusions

drawn are those of the author, and should not be considered to be those of the University of

South Africa.

178

(2004) 17 SACJ 178

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