Learning Unit 6 transcript

This lesson is located in the link below:

https://youtu.be/UXuG5VAbioc

Good day students, and welcome once again to a lecture on the General Principles of Criminal Law!
Today we will be discussing Learning Unit 6, which covers the remaining grounds of justification. This
is also the last Learning Unit on the requirement of unlawfulness.

Let’s quickly recap the last sessions we had. After completing the first two Learning Units, we moved
on to criminal liability and discussed the first two of the requirements for criminal liability, namely the
act (or conduct), and definitional elements (which included causation) in Learning Units 3 and 4. Then
we moved on to the requirement of unlawfulness in Learning unit 5.
We took note of the fact that conduct is unlawful if it conflicts with the boni mores (literally "good
morals") or legal convictions of society. 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. If an act conflicts with such interests or values, it is
unlawful (for example, murder conflicts with the right to life and is thus unlawful). We also noticed
that the word “unlawful” basically means “without any justification”. Sometimes an act complies with
the definitional elements of a crime, but it is not necessarily unlawful. For example, if X and Y are
hitting one another with their fists, we would think that they are assaulting one another (which is
unlawful), but not if you know that X and Y are competing in a boxing match. So, before we can decide
that certain conduct is unlawful, we need to first consider whether there are no grounds of
justification that may exclude the unlawfulness of the act. If this defence fails, then the conduct will
be unlawful.
We proceeded with a discussion of the first ground of justification, namely private defence in Learning
Unit 5. In this learning unit, we will deal with the remaining grounds of justification.

You have already been informed that examples of well-known grounds of justification are private
defence (or self-defence), but also necessity, consent, presumed consent, obedience to orders and
official capacity. Triviality and the right of chastisement (which was declared unconstitutional) are also
discussed as additional topics of interest. In this Learning Unit, we will discuss these remaining grounds
of justification. We will begin with the ground of justification of necessity.
Necessity is defined as follows: 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 that is endangered by a threat of harm that has already begun or is
immediately threatening and that 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. Although this
definition does not cover every aspect of this ground of justification, it does contain the most
important elements. Again, similar to the definition of private defence, this definition is quite long and
seems complicated. However, as with private defence, this definition contains the most important
requirements for this ground of justification. Below this definition, we have provided the definition of
private defence to illustrate the similarities and differences between these two types of grounds of
justification. This is purely for interest’s sake, as we will compare these two grounds in the following
slide. We can already remark here that similar to private defence, the test for necessity is objective.
The question whether X's acts fell within the limits of the defence of necessity must be considered
objectively, that is, in the light of the actual facts, and not according to what X (at the time) took the
facts to be. If he merely thinks that he is acting out of necessity, and, while thus mistaken, directs his
action against another person's interests, his action remains unlawful, but he may escape liability
because he lacks culpability (a topic that will be discussed in Learning Unit 10). This is called putative
necessity.

Although the two grounds of justification known as necessity and private defence are closely related,
they do have some differences. The first difference concerns the origin of the situation of emergency:
Private defence always stems from an unlawful (and, therefore, human) attack; necessity, on the other
hand, may stem either from an unlawful human act (not an attack) or from chance circumstances,
such as natural occurrences. We have already mentioned in a previous Learning Unit that if X defends
himself against a dog or even a shark that attacks him, this situation does not constitute private
defence but necessity. The second difference relates to the object at which the act of defence is
directed: Private defence is always directed at an unlawful human attack; necessity is either directed
at the interests of another innocent third party or merely amounts to a violation of a legal provision.
For example, if X knows that Y is not at home, and a tornado is heading towards Y’s house, and in
order to save Y’s very expensive wine collection, X breaks down Y’s front door in order to save the
wine, Y cannot hold X liable for malicious injury to property as X acted out of necessity. In this example,
the emergency situation arose from chance circumstances (a tornado), and although X acted in Y’s
interest, the necessity amounts to a violation of a legal provision (you are not allowed to damage
someone else’s property). It is also important to remember that necessity can only be used as a
defence where the situation of emergency is the result of a coerced human act, that is, one of relative
compulsion. If you can still remember, in Learning Unit 3 we dealt with absolute force (where there is
no voluntary act) and relative force (where X can still act voluntary and is forced or coerced to perform
the harmful act, else X will suffer some harm or wrong if he does not commit it). Only relative force or
compulsion qualifies as necessity.

The requirements for a plea of necessity are the following: (1) Some legal interest of X, such as her
life, physical integrity or property, must be threatened. In principle, a person should also be able to
protect other interests, such as dignity, freedom and chastity, in a situation of necessity. (2) A person
can also act in a situation of necessity to protect another's interest, for example, where X protects Z
from being attacked by an animal. (3) The emergency must already have begun or be imminent, but
must not have terminated, nor only be expected in the future. (4) X should be able to successfully
raise the defence of necessity even if she caused the emergency herself. For example, if X sets a house
on fire by accident, she must be able to rely on necessity to break out of the house in order to save
herself and her children, even though she was personally responsible for the emergency, i.e., the fire.
(5) If a person is legally compelled to endure the danger, he or she cannot rely on necessity. These are
persons such as police officials, soldiers and firefighters where certain dangers are inherent in the
exercise of their profession. (6) The act committed in necessity is lawful only if it is the only way in
which X can avert the threat or danger. Where, for example, Z orders X to kill Y, and threatens to kill
X if she does not obey, and it appears that X can overcome her dilemma by fleeing, she must flee and,
if possible, seek police protection. (7) X must be conscious of the fact that an emergency exists and
that she is therefore acting out of necessity. One cannot claim necessity if the act was a pure chance
or accidental act of necessity. (8) And lastly, the harm caused by the defensive act must not be out of
proportion to the interest threatened. Therefore, X must not cause more harm than is necessary to
escape the danger. The question is then asked whether necessity can be raised as a defence against a
charge of murdering an innocent person? In the case of Goliath, the Appeal Court held that necessity
could constitute a complete defence to a charge of murder, but only in cases of extreme compulsion.
In this case, X was ordered by Z to hold on to Y, so that Z might stab and kill Y. X was unwilling
throughout, but Z threatened to kill him if he refused to help him. The court inferred, from the
circumstances of the case, that it had been impossible for X to run away from Z – Z would then have
stabbed and killed him. The only way in which X could have saved his own life was by yielding to Z's
threat, and assisting him in the murder.
The next ground of justification is that of consent. The consent must comply with certain requirements
in order to be valid, that is, in order to afford X a defence. We will now consider these requirements.
(1) The consent must be given voluntarily, without any coercion. Consent obtained as a result of
violence, fear or intimidation is not voluntary consent. If X threatens Y with a revolver to do something
and she agrees, there is no valid consent. (2) The person giving the consent must be endowed with
certain minimum mental abilities. These abilities are the ability to appreciate the nature of the act to
which she consents and to appreciate the consequences of the act. For this reason, if a woman is
mentally ill, under a certain age, drunk, asleep or unconscious, she cannot give valid consent to sexual
intercourse. (3) The consenting person must be aware of the true and material facts regarding the act
to which she consents. A fact is material if it relates to the definitional elements of the particular crime.
For example, if X tells Y that he is merely performing a procedure to cure her of her infertile, but in
fact X is having sexual intercourse with Y, Y is not aware of the true and material facts of the act to
which she consents. (4) The consent may be given either expressly (by saying “yes”) or tacitly (by
nodding). (5) The consent must be given before the otherwise unlawful act is committed. Approval
given afterwards does not render the act lawful. And (6), the consent must be given by the
complainant herself. It is only in exceptional cases where someone else may give consent on X’s behalf,
such as where a parent consents to an operation to be performed on his or her child.
In this slide, we discuss the possible effects that consent may have on criminal liability. In this regard,
we will consider four different groups of crimes. Firstly, there are crimes in respect of which consent
does operate as a defence, but where such consent does not operate as a ground of justification. It
forms part of the definitional elements of the crime instead. Can you think of an example of such a
crime? The best-known example in this respect is rape. Rape is possible only if the unlawful and
intention sexual penetration takes place without the person's consent. Secondly, there are crimes in
respect of which consent by the injured party is never recognised as a defence. The best-known
example is murder. Mercy killing (euthanasia) at the request of and thus with the consent of the
suffering party is unlawful, and not recognised as a defence. Thirdly, there are crimes in respect of
which consent does operate as a ground of justification. Well-known examples of such crimes are theft
and malicious injury to property. We have given you the example above of X breaking into Y’s house
because of an approaching tornado. Here, X commits the crimes of theft (of the wine) and malicious
injury to property (of the front door), however, X may rely on necessity as a defence. Fourthly, there
is a group of crimes in respect of which consent is sometimes regarded as a ground of justification and
sometimes not. An example of a crime that falls into this category is assault. We will elaborate more
on this group on the following slide.

Because the criminal law protects not only individual rights or interests, but the public interest too,
and the state or community has an interest in the prosecution and punishment of all crimes, even
those committed against an individual, an individual is not always free to consent to the impairment
of his or her interests. This is the reason why even if X ask Y to inflict physical harm on him, it can
sometimes be seen as unlawful, and, therefore, as amounting to assault. When can consent operate
as a ground of justification in assault? The criterion to be applied to determine whether consent
excludes unlawfulness is the general criterion of unlawfulness, namely the boni mores (legal
convictions) of society, or public policy. The best-known examples of situations in which consent may
indeed justify an otherwise unlawful act of assault are those where injuries are inflicted on others in
the course of sporting events (as illustrated in the previous slide), and where a person's bodily integrity
is impaired in the course of medical treatment, such as during an operation. If it was impossible for
the patient to consent because of unconsciousness or mental illness, for example, the doctor's
conduct may nevertheless be justified by necessity or presumed consent. This will be discussed next.
X may rely on the ground of justification of presumed consent if he acts in defence of, or in the
furthering of, Y’s interests, in situations where Y’s consent to the act is not obtainable, but there are,
nonetheless, at the time of X’s conduct reasonable grounds for assuming that Y would indeed have
consented to X’s conduct had he been in a position to make a decision about it.
The requirements for successfully relying on this ground of justification are: (1) It must not be possible
for X to obtain Y’s consent in advance. If it is possible, X must obtain Y’s consent, in which case X may
rely on consent as justification. (2) There must be reasonable grounds for assuming that, had Y been
aware of the material facts, she would not have objected to X’s conduct. (3) The reasonable grounds
for assuming that Y would not have objected to X’s conduct must exist at the time that X performs her
act. (4) At the time of performing her act X must know that there are reasonable grounds for assuming
that Y would not object to her (X’s) acts. (5) X must intend to protect or further Y’s interests. (6) X’s
intrusion into Y’s interests must not go beyond conduct to which Y would presumably have given
consent. (7) It is not required that X’s act should indeed have succeeded in protecting or furthering Y’s
interests.

An otherwise unlawful act may be justified by the fact that the person, when committing the act, was
merely obeying the order of somebody else to whom he was subordinate. This ground of justification
is called obedience to orders. Although the defence of obedience to orders usually arises in a military
context, its application is not exclusive to soldiers, but may include the police and other persons such
as municipal police officers. This justification mainly concerns obedience to an unlawful order issued
by a superior. A soldier or a member of a security service is compelled to obey an order only if the
order is manifestly lawful. If it is manifestly unlawful, he may not obey it; and if he does, he acts
unlawfully. In the case of S v Mostert 2006 (1) SACR 560 (N), a traffic officer charged with the crime
of assault relied on the defence of obedience to orders. The court held that there were three
requirements for this defence, namely (1) the order must emanate from a person in lawful authority
over the accused; (2) the accused must have been under a duty to obey the order (the test was here
whether the order was manifestly and palpably unlawful); and (3) the accused must have done no
more harm than was necessary to carry out the order. In order to succeed with this defence, all three
requirements must be met.

The definition of the ground of justification known as official capacity reads as follows: An act that
would otherwise be unlawful is justified if X, by virtue of her holding a public office, is authorised to
perform the act, provided the act is performed in the course of the exercise of her duties. Examples
of such conduct are: the clerk of the court whose official duty it is to exercise control over exhibits at
a court will not be guilty of unlawfully possessing drugs if she exercises control over drugs that are
exhibits in a current court case; or X, who works for security at customs and physically search people
crossing international borders in order to ascertain whether they have hidden prohibited articles (such
as drugs or weapons) on their bodies or in their clothing. X cannot be guilty of indecent assault or
crimen iniuria, as she is acting in official capacity.
Chastisement of a child by a parent or teacher was previously justified only if it was moderate and
reasonable, however, in the Christian Education South Africa v Minister of Education 2000 (4) SA 757
(CC) case, corporal punishment administered at schools was banned and teachers no longer have a
right to impose corporal punishment. Section 10 of the South African Schools Act 84 of 1996 provides
that no person may administer corporal punishment at a school to a learner, and that any person who
contravenes this provision is guilty of an offence and liable, on conviction, to a sentence that could be
imposed for assault. And in 2018, in the case of YG v S, the right of chastisement of parents were
declared unconstitutional as it infringes children's rights to dignity and physical integrity. So the right
to chastisement is no more.

If X commits an unlawful act, however, the degree in which he contravenes the law is minimal or
trifling, a court will not convict him of the crime in question. This is because of the maxim “de minimis
non curat lex”, which means that courts will not concern itself with trifling matters. For example, a
person will not be convicted of theft just because he took a small piece of waste paper. Because the
courts’ time should not be wasted with mere trivialities, X is afforded a defence. But is this correct?
Isn’t the theft of a piece of paper or a pen just as unlawful as to steal a motor car? Unlawfulness
cannot, like culpability, be “graded” into degrees into more unlawful and less unlawful crimes. An act
is either lawful or unlawful. What do you think? And so, after a very long lecture today, we have come
to the end of this session. When you study this Learning Unit and have some additional queries as
regards the content, please contact your lecturers so that they may assist you.

As usual, please note that these notes are merely supplementary to your prescribed material of which
your study guide remains the primary source from which to study!

Thank you for attending the lecture today, we hope you enjoyed the session! Looking forward to
seeing you at the next one! Goodbye and stay safe!