UNLAWFULLNESS

THE MEANING OF ``UNLAWFULNESS''

 General

The mere fact that there is an act which corresponds to the definitional elements

does not mean that the person who performs the act is liable for the particular crime.

Therefore satisfying the definitional elements is not the only general requirement for

liability. The next step in the determination of liability is to enquire whether the act

which complies with the definitional elements is also unlawful.

In all probability, a lay person will be of the opinion that once it is clear that the

prerequisites for liability set out thus far (namely that the law prohibits certain

conduct as criminal and that X had committed an act which falls within the

definitional elements) have been complied with, X will be liable for the crime and

may be convicted. However, a person trained in the law will realise that there are

still two very important further requirements that must be complied with, namely

the requirements of unlawfulness and of culpability

The reason why, in all probability, a lay person will be unaware of the two last mentioned requirements, is because they are, as it were, ``unwritten'' or ``invisible'': that which is understood by ``unlawfulness'' and ``culpability'' does not (ordinarily) form part of the ``letter'' or ``visible part'' of the legal provision in question, that is, the definitional elements.

Thus if one consults the definition of a crime in a statute, one will normally not even come across the word ``unlawful'‘; neither can one necessarily expect to find words by which the culpability requirement is expressed, such as ``intentional'' or `'negligent''. Nevertheless a court will never convict anybody of a crime unless it is convinced that the act which complies with the definitional elements is also unlawful and accompanied by culpability - in other words, that the so-called ``unwritten'' or ``invisible ''requirements have also been complied with.

Acts that comply with the definitional elements are not necessarily unlawful –examples An act which complies with the definitional elements is not necessarily unlawful. This will immediately become clear if one considers the following examples:

(1) In respect of murder the definitional elements read: ``the killing of another human being''. Nevertheless a person is not guilty if he kills somebody in self-defence; his act is then not unlawful.

(2) X inserts a knife into Y's body. Although his act may satisfy the definitional elements of assault, it is not unlawful if X is a medical doctor who is performing an operation on Y with Y's permission, in order to cure him of an ailment.

(3) X exceeds the speed limit while driving his motor car. His conduct satisfies the definitional elements of the crime of exceeding the speed limit. However, if he does so in order to get his gravely ill child to hospital for emergency treatment his conduct is not unlawful (Pretorius 1975 (2) SA 85 (SWA)).

There are many other examples of conduct which satisfies the definitional elements, but is nevertheless not unlawful. It is a very familiar phenomenon that an act which ostensibly falls within the letter of the law (in other words which corresponds to the definitional elements) proves upon closer scrutiny not to be contrary to the law, as the examples above illustrate. In these cases the law tolerates the violation of the legal norm.

Content of unlawfulness

When is conduct which corresponds to the definitional elements not unlawful? In other words, what precisely is meant by ``unlawful'' and what determines whether an act is unlawful?

(1) Grounds of justification

There are a number of cases or situations, well-known in daily practice, where an act which corresponds to the definitional elements is, nevertheless, not regarded as unlawful. Unlawfulness is excluded because of the presence of grounds of justification. Some well-known grounds of justification are private defence(which includes self-defence), necessity, consent, official capacity, and parents‘ right of chastisement.

The grounds of justification will subsequently be discussed one by one. At this point it is tempting simply to define unlawfulness as ``the absence of a ground of justification''. However, such a purely negative definition of unlawfulness is not acceptable, for two reasons:

(a) All jurists agree that there is no limited number (numerus clausus) of grounds of justification. If this were so, how would one determine the lawfulness or unlawfulness of conduct which does not fall within the ambit of one of the familiar grounds of justification?

(b) It should be remembered that each ground of justification has its limits. Where an act exceeds these limits, it is unlawful. What is the criterion for determining the limits of the grounds of justification?

The answer to this question is found directly below under the next heading.

(2) Legal convictions of society

Opinions differ on the material content of the concept of unlawfulness. We do not intend discussing the philosophical arguments underlying the differences of opinion. The current approach (with which we agree) is the following:

 Conduct is unlawful if it conflicts with the boni mores (literally ``good morals'') or legal convictions of society.

(Fourie 2001 (2) SACR 674 (C) 678). The law must continually strike a balance between the conflicting interests of individuals, or between the conflicting interests of society and the individual. If certain conduct is branded unlawful by the law, this means that according to the legal convictions (or boni mores) of society certain interests or values protected by the law (such as life, property or dignity) are regarded as more important than others (Clark v Hurst 1992 (4) SA630 (D) 652-653). The contents of the Bill of Rights in chapter 2 of the Constitution must obviously play an important role in deciding whether conduct is in conflict with public policy or the community's perception of justice. The values mentioned in section 1 of the Constitution, namely ``human dignity, the achievement of equality and the advancement of human rights and freedoms‘‘ are also of crucial importance in deciding this issue

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. They merely represent those situations encountered most often in practice, which have therefore come to be known as easily-recognisable grounds for the exclusion of unlawfulness. They do not cover the entire subject-field of this discussion, namely of the demarcation of lawful and unlawful conduct.

In Fourie 2001 (2) SACR 674 (C), the facts were the following: X is a regional-court magistrate resident in George. He has to preside at the sessions of the regional court in Knysna. The court's session commences at 9:00. Because of certain circumstances, he leaves George for Knysna in his motor car somewhat late on that particular day. On the road between George and Knysna he is in a hurry to get to Knysna as soon as possible, and is caught in a speed trap, which shows that he exceeded the speed limit of 80 km/h which applied to that part of the road. On a charge of exceeding the speed limit, he pleads not guilty. His defence is that, although he exceeded the speed limit, his act was not unlawful.

 He argued that although not one of the recognised grounds of justification, such as private defence, was applicable to the case, his act should nevertheless be regarded as lawful on the following ground: the act was not in conflict with the legal convictions of the community, because by merely striving to arrive at the court timeously he drove his car with the exclusive aim of promoting the interests of the administration of justice. He did not seek to promote his own private interests, but those of the state, and more particularly those of the administration of justice.

The court dismissed this defence. If this defence were valid, it would open the

floodgates to large-scale unpunishable contraventions of the speed limits on our

roads. Many people would then be entitled to allege that, since they would

otherwise be late for an appointment in connection with a service they render to

the state, they are allowed to contravene the speed limit. In the course of the

judgment, the court confirmed the principle set out above that the enquiry into

unlawfulness is preceded by an inquiry into whether the act complied with the

definitional elements, and also that the test to determine unlawfulness is the boni

mores or legal convictions of the community.

From what has been said above it is clear that one has to distinguish between

(1) an act which complies with the definitional elements, and

(2) an act which is unlawful

The act described in (1) is not necessarily unlawful. It is only ``provisionally'‘ unlawful. Students often confuse the two concepts. One of the reasons for the confusion is that for the layman the word ``unlawful'' probably only means that the act is an infringement of the ``letter'' of the legal provision in question (i.e. the definitional elements). You may overcome this possible confusion by always using the expression ``without justification'' as a synonym for ``unlawful'': an act complying with the definitional elements is unlawful only if it cannot be justified.

Unlawfulness distinguished from culpability 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.

We will now proceed to a discussion of the different grounds of justification. The rest of this study unit is devoted to a discussion of the first ground of justification, namely private defence. In the next study unit we will deal with the remaining grounds of justification.

PRIVATE DEFENCE

Definition of private defence

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.

Colloquially this ground of justification is often referred to as ``self-defence'', but this description is too narrow, since not only persons who defend themselves, but also those who defend others can rely upon this ground of justification. A person acting in private defence acts lawfully, provided his conduct complies with the requirements of private defence and he does not exceed its limits.

For purposes of classification it is convenient to divide the requirements and the most important characteristics of private defence into two groups. The first group comprises those requirements or characteristics with which the attack against which a person acts in private defence, must comply; the second comprises the requirements with which the defence must comply.

Private defence requirements

(1) Requirements of attack

The attack

(a) must be unlawful

(b) must be against interests which ought to be protected

(c) must be threatening but not yet completed

(2) Requirements of defence

The defensive action

(a) must be directed against the attacker

(b) must be necessary

(c) must stand in a reasonable relationship to the attack

(d) must be taken while the defender is aware that he is acting in private defence

Requirements of the attack

(1) The attack must be unlawful

Private defence against lawful conduct is not possible. For this reason, a person acts unlawfully if he attacks a policeman who is authorised by law to arrest somebody. If the policeman is not authorised by law to perform a particular act, or if he exceeds the limits of his authority, he may lawfully be resisted. Can X rely on private defence if he kills Y in the course of a pre-arranged duel? In Jansen 1983 (3) SA 534 (NC) X and Y decided to ``settle their differences'' in a knife duel. During the fight Y first stabbed at X, and then X stabbed Y in the heart, killing him. The court held, quite justifiably, that X could not rely on private defence, and convicted him of murder. X's averting the blow was merely part of the execution of an unlawful attack which he had planned before hand. In deciding whether the attack of Y (the aggressor) on X is unlawful, there are three considerations which should be left out of consideration. These three considerations, marked (a) to (c) below, are the following:

 

(a) The attack need not be accompanied by culpability. X can therefore act in private defence even if his act is directed against a non-culpable act by Y. What does this mean?

(i) As will be explained in the exposition of the culpability requirement below, culpability implies inter alia that a person must be endowed with certain minimum mental abilities. If he has these mental abilities, he is said to have criminal capacity. Examples of people who lack these mental abilities and who therefore lack criminal capacity are people who are mentally ill (``insane'') and young children.

The requirement for private defence presently under discussion is merely that Y's attack must be unlawful. Since even people who lack criminal capacity can act unlawfully, X can successfully rely on private defence even if his defensive act is directed at the conduct of a mentally ill person or a young child (K 1956 (3) SA 353 (A)).

Thus if X is attacked by Y, he may defend himself against Y in private defence even if the evidence brings to light that Y is mentally ill.

 

(ii) Another example of a situation in which a person acts unlawfully but

without culpability is where a person who does have criminal capacity

acts without intention because of a mistake on his part.

(Again, the exclusion of intention because of a mistake will be explained

later in the discussion of intention.) The following is an example of such

a situation:

Y thinks that he is entitled to arrest X. However, he is in fact not

entitled by law to do this. If Y tries to arrest X, Y is acting unlawfully

and X is entitled to defend himself in private defence against Y. Y's

lack of culpability does not debar X from relying on private defence.

(iii) Since the law does not address itself to animals, animals are not subject to the law and can therefore not act unlawfully. For this reason X does not

act in private defence if he defends himself or another against an attack by an animal. In such a situation X may, however, rely on the ground of justification known as necessity (which will be discussed below).

(b) The attack need not be directed at the defender. X may also act in private defence to protect a third person (Z), even if there is no family or protective relationship between X and Z (Patel 1959 (3) SA 121 (A)).

(c) The attack need not necessarily consist in a positive act(commissio), despite the fact that it nearly always does. Although unlikely to occur often, an omission (omissio) may also qualify as an ``attack'', provided the other requirements for private defence are present. An example in this respect is that of the convict who assaults prison warders and escapes when his term of imprisonment has expired but he has not yet been released.

(2) The attack must be directed against interests which, in the eyes of the law, ought to be protected

Private defence is usually invoked in protection of the attacked party's life or physical integrity, but in principle there is no reason why it should be limited to the protection of these interests. Thus the law has recognised that one can also actin private defence. in protecting property (Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1)SA 488 (A))

•in protecting dignity (Van Vuuren 1961 (3) SA 305 (EC))

•in preventing unlawful arrest (Mfuseni 1923 NPD 68) and

•in preventing attempted rape (Mokoena 1976 (4) SA 162 (0)).

 

case law regarding private defence is Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488 (A). The Appeal Court not only held that, in extreme circumstances, a person is entitled to kill another person in defence of property, but also had to apply most of the requirements of private defence referred to above.

We shall not discuss this case in detail, as we expect you to read the judgment in this case yourself. You must know what the interesting facts of this case were, what answers the court gave to the legal questions posed, and what the reasons for these answers were. However, we would like to point out that the common law rule in Van Wyk (i.e. that one may kill in defence of property) may possibly be challenged on the grounds that it amounts to an infringement of the constitutional rights of a person to life (s 11 of the Constitution) and to freedom and security (s 12).

An enquiry as to the constitutionality of this rule will involve a balancing of the rights of the aggressor to his life against the rights of the defender to his property. Legal authors have different points of view on the question which right (that of the aggressor to his life or that of the defender to his property) should prevail. We submit that killing in defence of property would at least be justifiable if the defender, at the same time as defending his property, also protected his life or bodily integrity. (See the facts of Mogohlwane 1982 (2) SA 587 (T), discussed in (3) hereunder.)

As far as protection of dignity is concerned, it was held in Van Vuuren supra that a person may rely on private defence in order to defend someone's dignity. In this case Y insulted X's wife in public. Thereupon X dealt Y a few blows. The court held that X was not guilty of assault. There was a distinct possibility that Y would have continued insulting X's wife, and X wanted to prevent this.

(3) The attack must be threatening but not yet completed

X cannot attack Y merely because he expects Y to attack him at some time in the future. He can attack Y only if there is an attack or immediate threat of attack by Y against him; in this case, it is, of course, unnecessary that he wait for Y's first blow -he may defend himself by first attacking Y, with the precise object of averting Y's first blow (Patel 1959 (3) SA 121 (A)). Private defence is not a means of exercising vengeance; neither is it a form of punishment. For this reason X acts unlawfully if he attacks Y when Y's attack upon him is already something of the past.

When automatic defence mechanisms are set up (such as a shot-gun which will go off during the night if the shop is entered by a thief), there is, at the time when the device is set up, no immediate threat of attack, but the law recognises that to setup such mechanisms which will be triggered the moment the threatened ``attack'‘ materialises may constitute valid private defence in certain narrowly-defined circumstances.

Such a case was Van Wyk supra, in which X, a shopkeeper whose shop was burgled repeatedly, set a shot-gun to go off and injure prospective burglars in the lower part of the body. One night Y broke into the shop and was fatally wounded. The Appeal Court held that X could rely on private defence.

In Mogohlwane 1982 (2) SA 587 (T) Y tried to take a paper bag containing clothes, a pair of shoes and some food, from X. X resisted, but Y threatened X with an axe and gained possession of the bag. X immediately ran to his house, some 350metres away, fetched a table knife, returned to Y and tried to regain his property. When Y again threatened X with the axe, X fatally stabbed Y with his knife, in order to prevent him (Y) from absconding with his bag. The court decided that X acted in private defence: the attack on X was not completed, because when X ran home and fetched the knife, it was part of one and the same immediate and continued act of resistance. X was a poor man, and the contents of the bag were of value to him. If Y had run off with the bag, X would never have seen it again.