PRIVATE DEFENCE

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

PLEASE NOTE THE FOLLOWING:

There must be a reasonable relationship between the attack and the defensive act

Another way of expressing this requirement is by saying that the act of defence

may not be more harmful than necessary to ward off the attack (Trainor 2003 (1)

SACR 35 (SCA)).

It stands to reason that there ought to be a certain balance between the attack and the defence. After all, a person is not entitled to shoot and kill someone who is about to steal his pencil. There should be a reasonable relationship between the attack and the defensive act, in the light of the particular circumstances in which the events take place. If, for example, the attacked party could have overcome the threat by using his fists or by kicking the assailant, he may not use a knife, let alone a firearm.

In order to decide whether there was a reasonable relationship between attack and defence, factors such as the following should be taken into consideration:

• the relative strength of the parties (if X is strongly built but Y, the aggressor, is weakly built, X ought normally to be able to overcome Y's attack without resorting to extreme measures)
• the sex of the parties
• the ages of the parties
• the means they have at their disposal
• the nature of the threat the value of the interest threatened
• the persistence of the attack

In practice whether this requirement for private defence has been complied with is more a question of fact than of law.

A clearer picture of this requirement emerges if one considers the elements between which there need not be a proportional relationship:

(a) There need not be a proportional relationship between the nature of the interest threatened and the nature of the interest impaired. The attacked party may impair an interest of the assailant which differs in nature from the interest which he is defending. The following examples illustrate this point:

- If Y threatens to deprive X of a possession belonging to X, X is entitled to assault Y in private defence in order to protect his possession. This means that X may, in order to protect his own property, impair an interest of Y which is not of a proprietary nature, namely Y's physical integrity. In Ex parte die Minister van Justisie: in re S van Wyk the appeal court held that X may in extreme circumstances even kill Y in order to protect his property.

- If Y threatens to rape X, X may defend her chastity even by killing Y (Van
Wyk ).

The nature of the interest protected and the interest impaired may therefore

be dissimilar. However, this rule must be tempered by the qualification that

in cases of extreme disproportion between interests reliance on private

defence may be unsuccessful (Van Wyk ).

(b) There need not be a proportional relationship between the weapons or means used by the attacker and the weapons or means used by the attacked party. If the person attacked may not defend himself with a different type of weapon from the one used by the attacker, it follows that the attacker has the choice of weapon, and such a rule would obviously be unacceptable.

(c) There need not be a precise proportional relationship between the value or extent of the injury inflicted by the attacker and the value or extent of the injury inflicted by the defending party. One does not, like a referee in a boxing contest, count the exact number of blows struck by the attacked party and then compare with the number of blows struck by the assailant.

Nevertheless, although there need not be a precise relationship, there must be

an approximate relationship. What constitutes an approximate relationship

depends upon the facts of each case.

This requirement for private defence does not mean that the law, by requiring the

attacked party to avail himself of the less harmful means, requires of the attacked

party to gamble with his life or otherwise expose himself to risks.