n South African Journal of Criminal Justice - Homicide in defence of property in an age of constitutionalism
|Article Title||Homicide in defence of property in an age of constitutionalism|
|© Publisher:||Juta Law Publishing|
|Journal||South African Journal of Criminal Justice|
|Author||Dane Ally and Frans Viljoen|
|Publication Date||Jan 2003|
|Pages||121 - 136|
This article examines the constitutionality of the common-law rule that one person may kill another in defence of property. This rule is mostly associated with <I>Ex parte Minister van Justisie: In re: S v Van Wyk</I>. The authors draw a clear distinction between the use of violence (including homicide) in defence of life and limb, on the one hand, and in defence of property, on the other. Most decided cases illustrate the close link between the private defence of defending life and of protecting property. The Constitutional Court recently declared unconstitutional s 49(2) of the Criminal Procedure Act (allowing blameless killing to effect arrest). No court has yet pronounced on the <I>Van Wyk</I> rule. Authors differ about its constitutionality. In this article, following the two-phased approach to constitutional interpretation, the authors conclude that the rule is unconstitutional: The serious limitation of rights which the rule causes is not justifiable in terms of s 36 of the Constitution.
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