n South African Law Journal - Private defence in the South African law of delict : rethinking the rethinker




Fagan's requirements for private defence, articulated in an article in the 2005 , are not supported by any of the cases he relies upon. His test lacks the unlawful attack and the necessity requirements. His belief requirement is different to that of the courts as it relates to a mere danger believed to be averted, whereas that of the courts relates to a specific kind of danger believed to be averted, namely death or serious injury. His requirements are therefore not in line with those in South African law of delict as set out by the courts. His requirements are based on the English law of torts, where an unlawful attack is not required for a person to act in private defence, and where the belief requirement is formulated in such a way that putative private defence is equated with actual private defence. He is however in part right in his criticism of the judgment, although it will be argued that his views on the ex ante and ex post debate are not entirely correct. The judgment and Fagan's requirements reveal a conflict in the belief requirement and the requirements for the defensive action which indicate that the setting of a belief requirement is not proper in the determination of private defence as a justification defence.


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