1. S v Fourie 2001 (2) SACR 674 (C).

Facts:
A magistrate was charged for contravening the speed limit owing to being late
for work. He argued that his conduct was justified because it was not in conflict
with the legal convictions of society.
Legal question:
Was the conduct of the accused justified in terms of the legal convictions of
society?
Relevance:
The court confirmed that the legal convictions of society can be used as the
legal standard to determine the unlawfulness of the accused’s conduct.
The grounds of justification are not numerous clausus (not limited to the
recognised defences)
Judgement:
The judicial officer was found guilty because his conduct was unjustified.

2. R v Patel 1959 (3) SA 121 (A)

Facts:
The appellant killed the deceased in defence of his brother.
Legal question:
Did the accused exceed the limits of private defence?
Relevance:
An accused may act in self defence of another person’s life.
An accused may employ the same force as he would’ve done if he were the
threatened person.
Judgement:
Appeal against sentence and conviction upheld – the accused did not exceed the
bounds of private defence.
 3. Ex parte die Minister van Justisie: in re S v Van Wyk 1967 (1) SA 488
(A)

Facts:
Van Wyk’s shop had been broke into a number of times. He had unsuccessfully
exhausted all means necessary to deter the criminals. He set up a gun, upon
entry, it discharged itself, and led to the death of the deceased.
Legal questions:

could someone rely on private

defence if he kills another in
protection of his property
an
could someone rely on private
defence if he kills another in
protection of his property
an
Can the accused rely on private defence if he kills in protection of his property?
If answered in the affirmative, would the accused have exceeded the limits of
private defence?
Relevance:
Killing in defence of a person’s property may be justifiable if it is the very last
alternative to protect property.
It is permissible to kill a person in defence of property depending on the
circumstances.
Judgement
1. It is permissible to kill or injure someone in private defence in protection of
property.
2. The limits of private defence were not exceeded.

4. S v Mogohlwane 1982 (2) SA 587 (T)

Facts: after being dispossessed of property, the accused sought assistance to no

avail. Thereafter, he hurriedly fetched a knife and hastened back to the scene
where he stabbed the victim. Accused raised private defence for the charge of
murder.
Legal question:
Did the accused act within the bounds of private defence?
Legal relevance
The accused’s continued action in the recovery of the bag, including returning
to the scene and the forced used formed part of self-defence.
Judgement:
Acquainted - The accused acted lawfully in self-defence as the attack was still
in progress.

5. Grigor v State (607/11) [2012] ZASCA 95.

Facts:
Accused stabbed an unarmed complainant during a road rage fight.
Legal question:
Didi the accused exceed the limits of private defence?
Relevance:
The accused exceeded the limits of self defence in that the excessive force used
was disproportionate to avert the danger.
Judgement
Appeal dismissed – attempted murder.
Compare this case to the Eadie case in chapter 5.
 6. S v Pistorius

Facts:
Accused shot his girlfriend through a toilet cubicle.
Legal question:
Was the conduct of the accused reasonable and lawful?
Relevance:
A fictitious reasonable person is a person of similar circumstances (in this case,
was the conduct of the disabled person reasonable but do not compare his
conduct with that of a reasonable person).
Judgement
Acted in putative self-defence (excludes dolus) – guilty of culpable homicide
(later overturned to murder).
Note – the judge applied the reasonableness test for culpa but made an
important remark regarding the reasonable person test under unlawfulness (do
not confuse the two tests). There is no comparison drawn in the latter case.

7. Steyn case

Check your class notes (read the walker article – it is also relevant in chapter
11).
Facts:
The accused, who had been subjected to emotional and physical abuse, shot her
husband dead when the latter stormed at her with a knife.
Relevance:
 The court confirmed that there is no duty to retreat from an unlawful human
attack.
 The court confirmed the use of the reasonable person test but stated that it
must be used with caution as it is susceptible to being confused with the
reasonableness test.
 Court proceeded to develop a secondary test: hold an enquiry into various
factors to determine whether the conduct of the accused was reasonable? See
factors.
Judgement:
She acted in self defence = acquittal.
Primary test = reasonable person test (98%).
Secondary test = the enquiry in cases concerning GBV,

8. S v Goliath 1972 (3) SA 1 (A).

Voluntary conduct – why didn’t the defence rely on relative force?

Facts:
A compelled B (unwilling agent) to hold the deceased tightly so that he could
kill the deceased. B submitted to compulsion upon realising that his own life
was in danger.
Legal question:
Can an act of compulsion exclude criminal liability of the accused?
Relevance:
 Illustrates the difference between necessity and private defence.
 The court does not demand more of the accused than is reasonable.
 NB: An ordinary person regards his life as more important than that of
another.
 The average person will not sacrifice his life for another.
Judgement:
Acquainted – an act of compulsion falls under defence of necessity and
exonerates the accused from liability.
Double-check the cases below on your own.

9. Leeuw 1975 (1) SA 439 (O) (impossibility)

Facts:
Statutory offence for the appellant to drive around without a driver’s licence.
Accused raised the defence of impossibility: impossible for him to obtain
license as he was a restricted person in terms of Suppression of Communism
Act.
Legal question:
Was the conduct of the accused justified under the defence of impossibility?
Relevance
The defence of impossibility is only available to the accused where there’s a
legal duty to act positively.
Judgement
Appeal dismissed.

10. S v Mostert 2006 (1) SACR 560 (N) (defence of obedience…)

Facts:
The accused, acting on an order from his superior, used physical force to bring
the complainant to his superior. Charged with assault and crimen iniura.
Legal question:
Does the defence of obedience exclude unlawfulness?
Relevance:
 Confirmed the existence of the defence of obedience.
 There is a duty to obey a lawful order that complies with the following
requirements:
A) Order must emanate from person lawfully placed in authority over
appellant.
B) Appellant must have been under duty to obey the given order.
C) Appellant must have done no more harm than was necessary to carry out
the order.
Judgement
Defence rejected. Appeal against assault upheld – appeal against crimen injuria
dismissed.

11.YG v S (corporeal punishment)

Facts:
Appellant walloped his son after he caught him watching pornographic material.
Legal issue:
Is the defence of reasonable chastisement constitutional?
Relevance:
Declared unconstitutional the common law defence reasonable chastisement.
The use of reasonable and moderate chastisement is at variance with s10 (right
to dignity), s12 (right not to be treated or punished in a cruel, inhuman or
degrading way) and s28(1)(d) (the right of children to be protected against
abuse, neglect, degradation).

12.Zurich v S 2010 1 ALLSA 352 (SCA) (entrapment)

Facts:
Appellant convicted of unlawful importation and sale of elephant tusks.
Appellant challenges the admissibility of evidence obtained in terms of s252A
of the CPA.
Section 252A of the Criminal Procedure Act 51 of 1977 authorizes the use of
traps and undercover operations and admissibility of evidence so obtained. A
trap provides a private citizen the opportunity to commit a crime.
Relevance:
 Evidence obtained using traps is admissible if the police officer acted intra
vires (in that his conduct does not amount to an offence).
 Traps inherently involve misrepresentation specifically intended to deceive
the accused and such misrepresentation does not render evidence
inadmissible save where it creates an opportunity to commit a crime.
Judgement:
Appeal dismissed.

13.S v Mogaramedi (witchcraft)

Facts:
A sangoma killed his sister to obtain her genital organs as part of his initiation.
Legal question:
was the conduct of the accused justified as it was performed pursuant to his
religious and cultural beliefs?
Relevance:
Cultural and religious beliefs must be exercised in line with the Constitution
and cannot supersede the right to life.
Judgement:
Life imprisonment (premeditated).

14.S v Jezile