The Battered Woman and South African Law
3. Introduction
3.1 Self-Defence
3.1.1 Development of the defence
In the 16th century, theorists such as Coke were of the view that self-defence applied to voluntary killings which were done as a result of an “inevitable cause”. Such killings did not constitute a felony.495 An accused who claimed self-defence, was required to retreat safely, if possible. The exception to this rule was if a third party who was killed, offered to rob or kill for the accused.496 Coke did not recognize a justification defence of private self-defence as it is currently understood. He noted that an accused could be justified in killing another person only in circumstances that constituted a case-specific expression of the government’s law enforcement authority. Killings which were committed in self-defence were still subject to forfeiture of goods to the crown.497 Coke held that killings in self-defence of a third party who offered to murder or rob for the accused did not require forfeiture.498 The reason for this was that such killing advanced a law enforcement purpose and not because it was justified by private self-defence.499
In 1676, Hale noted acts that were necessary for maintaining peace in the kingdom:
495Coke The Third Part of the Institutes of the Laws of England (1979) (reprint of 1644 edition) 55.
496Coke supra (n 495) 56.
497As Coke supra (n 495) at 56 notes: “And yet such a precious regard hath the law of the life of a man, though the cause was inevitable, that at the Common law he would have suffered death, …yet he shall forfeit all his goods and chattels”.
498Coke supra (n 495) 56.
499Ibid.
those done where there was no necessity to perform such acts and which were felonies, and those acts based on self-preservation.500 He drew a distinction between the two, the former provided a public benefit defensive theory based on justification, while the latter a private necessity defensive theory based on excuse.501 Hale argued that pursuant to the public benefit theory, where a person is indicted on felony charges and flees from arrest, killing him is not considered a felony.502 Killing a resisting felon would also be justified under the public benefit theory. This is so since even a private individual doing this would be viewed as acting on behalf of the state.503 But in contrast, while private necessity also excused an accused from criminal liability, when relying on this defence, the accused could still be required to forfeit goods as a result of the killing. This was not the case with killings which were justified as a public benefit.504 Furthermore, those claiming private necessity had to retreat, if safe to do so, from the imminent attack.505
In 1765 Blackstone distinguished between justification and excuse in the law of homicide.506 He held that homicide was divided into three groups: justified, excused and felonious.507 Homicide was justified if it was committed due to some unavoidable necessity. Furthermore, it had to be without any will, intention or desire and without
500Hale The History of the Pleas of Crown Vol 1 (1971) (reprint of 1736 edition) 53.
501Hale supra (n 500) 478.
502Hale supra (n 500) 489.
503Hale supra (n 500) 489-492.
504Hale supra (n 500) 478.
505Hale supra (n 500) 481. As Hale supra (n 500) 481 notes: “This is so since the king and his laws are vindices injuriarum and private persons are not trusted to take capital revenge on one another”. For a general discussion of this requirement see Hale supra (n 500) at pages 479-485.
506Blackstone Commentaries on the Laws of England (1979) (reprint of 1765 edition) 177.
507Ibid.
inadvertence or negligence and therefore without any blame.508 Blackstone went on to separate justifiable homicide into those that were authorized by the law, and those that were justified by permission rather than the command of the law.509
Homicides that were authorized included the execution of criminals and the killing of individuals who resisted arrest or assaulted law enforcement officers.510 In other types of cases, the killing was justified because the law permitted rather than commanded it.
Such killings were allowed for the following reasons: the advancement of public justice, or where it is committed for the prevention of some horrific crime.511 Blackstone noted that a uniform principle which ran through the law was that where a crime (which was capital) was to be committed by force, it was lawful for an individual to repel such force by causing the death of the attacker. 512
Blackstone was of the view that justifiable and excusable homicide differed. In the case of excuse, there was a degree of fault, although it was trivial. The law excludes guilt from a felony in such a case. However, Blackstone noted that in strictness, it was deserving of some degree of punishment.513 Examples of excusable homicide included misadventure and self-defence.514 He held that in all cases of accidental death the accused must have had fault on his part. Consistent with this reasoning, excusing self-
508Blackstone supra (n 506) 178
509Blackstone supra (n 506) 179.
510Ibid.
511Ibid.
512Blackstone supra (n 506) 181.
513Blackstone supra (n 506) 182.
514Ibid.
defence was accorded to an individual who killed another defensively during an altercation, rather than the justification doctrine of private necessity, since in an altercation, both parties may and usually have some degree of fault, and for this reason would not hold the survivor entirely guilt-free.515
Blackstone classified self-defence as a form of excuse rather than justification against an innocent aggressor. He was of the view that when such an aggressor unjustly threatened another person’s life, the universal principle of self-preservation which prompts every person to save his own life rather than save another person’s makes it an excusable though unavoidable necessity.516
Force that caused injury, death or damage to property, could be justified or excused since the force used was reasonable in defence of certain public or private interests.
Private defence was a general defence to any crime of which the use of force is an element or which is alleged to have been committed by the use of force.517 The burden of disproving claims of private defence rested with the prosecution.518 The law was found in a variety of sources. Defence of person or acting in defence of a third party, is still regulated by the common law.519
The general principle is that the law allows the accused to use force as is objectively
515Blackstone supra (n 506) 187.
516Blackstone supra (n 506) 186.
517Ormerod supra (n 41) 329.
518The judge must give a clear direction on this issue. See O’Brien [2004] EWCA Crim 2900.
519Defence of property is regulated by the Criminal Damage Act 1971, and arrest and the prevention of crime by section 3 of the Criminal Law Act 1967.
reasonable in the circumstances as she believes them to be.520 Further, the accused’s belief in the need to use force is subjectively assessed while the reasonableness of the accused’s response and the amount of force used are objectively assessed on the facts as the accused believed them to be. The duty to retreat is a factor which is taken into account in establishing whether the use of force was reasonable. It is now necessary to consider these factors in detail.