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22. WHAT ARE SOME OF THE VALID DEFENSES IN LAW THAT AN ACCUSED WHO HAS BEEN CHARGED WITH A CRIMINAL OFFENSE CAN RAISE?

  • Private Defence (or Self-defence)

A person who is the victim of an unlawful attack upon his person or property may resort to force to repel the attack. Any harm inflicted upon an aggressor in such circumstances is not unlawful. The defence can only succeed if the court finds that the action taken was reasonable in the circumstances.

Requirements:

  • The attack must have already started or must be imminent;
  • The attack must be unlawful.
  • Private defence will succeed against lawful arrest or justifiable punishment;
  • A person may only protect life and limb, property, personal freedom, dignity and sexual integrity;
  • The act of defence must have been necessary to avert the attack;
  • It must be directed at the attacker;
  • The act of defence must be reasonable in the circumstances. It would probably be unreasonable to shoot someone who pulls your hair.
  • Necessity

This defence arises when a person is confronted with a choice between suffering an injustice and breaking the law. It is regularly used to justify actions in emergencies. One would, for instance, be able to rely on necessity against a charge of speeding when driving a person requiring urgent medical care to hospital.

Requirements:

  • The threat must have already started or must be imminent;
  • A legal interest (not mere financial) must be endangered;
  • The threat must not be caused by the accused ;
  • It must be necessary for the accused to avert the danger in the particular way. One cannot rely on this defence if the threat could have been averted in a less intrusive way;
  • The action must have been reasonable in the circumstances. The accused must do no more harm than what is necessary to protect the interest. There must be proportionality. One cannot, for example, destroy someone else’s car in order to save your own bicycle.
  • Alibi

An alibi defence is simply the denial of the allegation that it was the accused who committed the crime. This is achieved by calling a witness who states that the accused was somewhere else at the time the crime was committed.

  • Impossibility

This defence is relevant where it is impossible for the accused to comply with a positive duty placed upon him by law. One may be able to use this defence when you cannot timeously submit your tax return because a disgruntled employee destroyed all your financial records.

Requirements:

  • There must be a positive obligation upon the accused imposed by law;
  • It is physically impossible for any person to comply in the accused’s circumstances, not merely very difficult or burdensome;
  • The impossibility may not be the accused’s fault.
  • Superior Orders

This defence usually arises in the context of obedience to military or police commands.

Requirements:

  • The orders must come from a person lawfully placed in authority over the subordinate;
  • The subordinate must be under a duty to obey the order;
  • He must have done no more than what was required to carry out the order;
  • The defence is only available when the orders were not manifestly and obviously unlawful. A soldier or policeman can never carry out an order to rape.
  • Consent

In some circumstances, a victim to what is normally a crime, may consent to such an act, thereby excusing the accused from liability. An obvious example is where an accused is charged with rape, consent by the victim is a defence (provided, the victim is of consenting age, i.e. 12 years old).

Requirements:

  • The consent is recognised by law. A boxer can consent to an opponent assaulting him, even to the point of dying. The defence may also applicable where a doctor cuts the skin of a patient while performing an operation (and strictly speaking assaults the patient). In such circumstances a doctor may rely on the patient’s prior consent. It is interesting to note that South African law does not recognise a victim’s consent to be killed in an act of euthanasia;
  • The consent must be informed and voluntary;
  • The person must be capable of giving the consent. The person must be at least 7 years old, not suffer from mental defect or intoxication.
  • De Minimus Non Curat Lex

The de minimus rule simply means “the law does not concern itself with trivial matters”. Clearly this defence is not applicable to more serious offences. A court has, for example, acquitted a person who stole a worthless piece of paper. It is also conceivable that a slap on the back would not be seen as assault.

  • Negotorium Gestio

This occurs where person voluntarily performs an act in the interest of another with the intention of benefitting that other, but without his knowledge or consent. If, for instance, person sees his neighbour’s house burning, he may break the door of the house down in order to save some of the neighbour’s property.

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