1887

n South African Journal of Criminal Justice - The two reasons for the existence of private defence and their effect on the rules relating to the defence in South Africa

Volume 17, Issue 2
  • ISSN :
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Abstract

There are two reasons for the existence of private defence in criminal law. The first is the individual-protection theory, according to which private defence is aimed at <I>protecting the particular individual&lt;/I&gt; who relies on this defence against an unlawful attack. In this theory the individualistic notion of self-defence is predominant. One of the effects of this theory is that a person does not have the right to assume the duties of the police by protecting what he or she subjectively believes to be the interests of justice. The second reason underlying the defence is that private defence <I>serves to uphold justice</I>. Here, the emphasis is on preventing justice yielding to injustice. The person acting in private defence acts in place of the state or police, because it is impossible for the police always to protect everybody in society wherever they may find themselves. At issue in all instances of private defence is the clash between justice and injustice. This theory explains inter alia why the attack must be unlawful, why proactive action by the attacked party is permissible, why there is no duty on the attacked party to flee from the danger, why the attacked party must consciously act in private defence, why one is entitled to protect also another party in private defence, and why it is the attacking party, and not the defending party, who should carry the risk of the consequences (death or injury) flowing from his or her action.

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/content/ju_sajcj/17/2/EJC52809
2004-01-01
2016-12-09

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