Ans: Conduct is unlawful if it conflicts with the boni mores or legal convictions of
society. In order to determine whether conduct is unlawful, one must therefore enquire
whether the conduct concerned conflicts with the boni mores or legal convictions of
society. The grounds of justification must be seen as practical aids in the determination
of unlawfulness.
Satisfying the definitional elements is not the only general requirement for liability: next
step is to determine whether act is unlawful.
Grounds of justification excludes unlawfulness, i.e.:
1. Private defense
2. Necessity
3. Consent
4. Official capacity
5. Parents' right of chastisement
Cannot define unlawfulness as absence of grounds of justification due to:
1. No limited number of grounds of justification
2. Each ground of justification has its limits
Cases: Fourie 2001, Clark v Hurst 1992
Unlawfulness is usually determined without reference to X's state of mind. Whether he
thought that his conduct was lawful or unlawful is irrelevant. What he subjectively
imagined to be the case comes into the picture only when the presence of culpability has
to be determined.
2). Discuss private defense.
Ans: A person acts in private defence and his conduct is therefore lawful if he uses
force to repel an unlawful attack which has already commenced, or which immediately
threatens his or somebody else's life, bodily integrity, property or other interest that ought
to be protected by the law, provided the defensive action is necessary to protect the
threatened interest, is directed against the attacker, and is no more harmful than is
necessary to ward off the attack.
Defence can be used by people defending themselves as well as those defending others.
1. Private defence requirements:
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, a) Requirements of attack
b) The attack must be unlawful
c) The attack must be against interests which ought to be protected
d) must be threatening but not yet completed
2. Requirements of defence:
a) Defensive action must be directed against the attacker
b) Defensive action must be necessary
c) Defensive action must stand in a reasonable relationship to the attack
d) Defensive action must be taken while the defender is aware that he is acting in private
defense.
3). Discuss the requirements of the attack.
Ans: 1. Attack must be unlawful.
2. The attack must be directed against interests which, in the eyes of the law, ought to be
protected.
3. The attack must be threatening but not yet completed.
4). Discuss requirements of the defense.
Ans: 1. It must be directed against the attacker.
2. The defensive act must be necessary.
3. There must be a reasonable relationship between the attack and the defensive act.
4. The attacked person must be aware of the fact that he is acting in private defense.
5). Discuss necessity.
Ans: A person acts out of necessity and her conduct is therefore lawful if she acts in
the protection of her own or somebody else's life, physical integrity, property or other
legally recognised interest which is endangered by a threat of harm which has already
begun or is immediately threatening and which cannot be averted in any other way;
provided that the person who relies on the necessity is not legally compelled to endure the
danger, and the interest protected by the act of defence is not out of proportion to the
interest threatened by such an act.
Requirements for a plea of necessity
1. legal interest threatened (property, physical integrity).
2. may also protect another.
3. emergency already begun but not yet terminated.
4. may rely on necessity even if personally responsible for emergency.
5. not legally compelled to endure danger.
6. only way to avert danger.
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