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Putative Private Defence

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The law and our societal convictions of what is right and wrong sometimes referred to as the boni mores, have consistently shaped our legal system as to which acts are punishable and which aren’t. with that in mind I would like to shift your focus towards the act of murder which is the unlawful and intentional causing of the death another human being[1], this is an act which is punishable in the regular operation of law but however there are some extreme circumstances whereby this act may not be deemed unlawful, such as instances that fall within the scope of private defence, whereby a person uses force to repel an unlawful attack which has commenced or is imminently threatening, upon her or somebody else’s life, property or other interest which deserves to be protected this justification is subject to certain conditions which are; the defensive act must be necessary, proportionate to attack and directed at attacker[2]. The focus of this essay is primarily putative private defence which stems from a failure to meet the objective test set out under the requirements of private defence justification. This essay will critically discuss putative private defence in relations to the case of Director of public prosecutions, Gauteng v Pistorius[3].

Putative private defence

Putative private defence rises when the accused actions do not upon examination under the private defence justification qualify as lawful, depending on whether the defence has established a foundation for putative private defence the court will determine whether genuinely/mistakenly the accused believed that they were acting in lawful private defence, in the event that the accused’s erroneous belief that his life or property is in danger results in someone’s death the accused’s liability for killing the person will exclude intention (dolus) .[4] Putative private defence unlike private defence which looks in the lawfulness of the act, is focused on the question of culpability.[5] 

There has been a wide range of cases whereby the court have had to deal with putative private defence, most cases involve the appeals based on putative private defence. The courts have constantly resorted to testing the accused’s state of mind using an objective standard to determine whether the accused erroneous belief has merit in light of the reasonable man standard, which substitutes the accused and test whether his erroneous belief has any merit in light of this objective test as seen in S v De Oliveira[6] the court tested the accused’s actions against that of a reasonable an and it was found that his erroneous belief that his property was in danger had basis in light of the reasonable man test.[7] It is noteworthy that the reasonable man standard is one founded on an individual who encapsulates all the values of a law abiding citizen who does not engage in any haste action, an individual who  “treads life’s path ways with moderation and common sense”[8], an individual premised on the boni mores and Constitutional values of our society hence ones actions is expected to match up to that standard in order for us to conclude that their actions meet up with the reasonable person standard

In my view the subjective element which accompanies putative private defence may be hard to establish, the current reasonable person approach may not always encapsulate the accused’s true state of mind at that given moment, the objective standard it sets may not always truly define the state of mind one was in at that given time. Which in terms of justice may be disingenuous to the perpetrator, who may have had a genuine fear for their life.

Some writers argue that the putative private defence justification is one which should not be judged by court in an ‘arms chair’ point of view this justification should be looked at considering the case’s facts[9], which by operation of law the reasonable man standard seems to be a sufficient tool in testing the accused’s actions.

Facts relative to putative private defence in Director of public prosecutions, Gauteng v Pistorius

Mr Oscar Pistorius who will be referred to as ‘Oscar’, in the early hours of the day of the incident believed that there was an intruder in his bathroom who gained access via the bathroom window, he moved to grab his 9mm pistol which was loaded with lethal rounds of ammunition. He shouted and told the deceased to call the police, as he was moving towards the bathroom to inspect the apparent threat, Oscar at this time wasn’t wearing his prosthetic legs which according him made him vulnerable to an attack. Based on the circumstances Oscar’s council submitted that Oscar believed his life was in danger and feared for his life.

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