Abstract
In crime-ridden societies such as South Africa it often happens that people genuinely though mistakenly believe that their lives are in danger and that, should they act, they would be acting in self-defence. When these people are then criminally prosecuted and suddenly find themselves in the dock, the only defence available to them is putative self-defence. Unlike regular self-defence, putative self-defence relates to the state of mind of the accused at the time of the crime and, therefore, whether the person was conscious of the wrongfulness of his/her actions or was acting based on an honestly held, albeit erroneous, belief.
Putative self-defence is nothing new in South African criminal law. In fact, as the case law discussed in this contribution will demonstrate, it has been raised as a defence in South African courts for over half a century. In addition, the difference between self-defence and putative self-defence, as well as the criminal liability resulting from putative self-defence, has been firmly entrenched and clearly explained in our law over the years. Yet despite this long history, the recent Pistorius matter not only reignited interest in putative self-defence, but also turned the spotlight on the considerable legal uncertainty regarding our courts’ approach to it: although the Supreme Court of Appeal found that Pistorius could not succeed with putative self-defence and was in fact guilty of murder, a range of leading criminal law experts still believe that the court a quo was correct in initially finding Pistorius guilty of culpable homicide only.
Against this backdrop, the article embarks on a critical chronological overview of the South African courts’ and criminal law experts’ approach to putative self-defence over the past few decades. This overview of case law points to an approach that can at best be described as uncertain and inconsistent. When putative self-defence was raised in R v Bhaya 1953 3 SA 143 (N), the court insisted that the accused’s mistaken belief of self-defence had to be reasonable and his defending actions justifiable – thus clearly pointing to an objective test. In S v De Oliveira 1993 2 SASV 59 (A), however, the then Appellate Division in a rather drastic turnabout insisted on a purely subjective “erroneous belief” as the only requirement to eliminate dolus (intent). At the same time, though, in deciding whether the accused in De Oliveira could successfully raise putative self-defence against a murder charge, the court unfortunately and unnecessarily clouded the issue by applying a partially objective test, stating that the “reasonable person” in the circumstances of the accused would not have believed that he was entitled to shoot. This was followed by a series of judgments well into the 2000s that all applied a solely subjective test and required only a genuinely mistaken belief of self-defence in order to eliminate consciousness of wrongfulness. In S v Naidoo 1997 1 SACR 62 (T), for example, the court focused on whether the accused himself had been honestly yet mistakenly convinced that he was being attacked and was therefore acting within the parameters of self-defence. If so, the court argued, even though the subjective belief turned out to have been held erroneously, there was no consciousness of wrongfulness, and the accused could be found guilty only of culpable homicide. In Kgaleng v Minister of Safety and Security 2001 4 SA 854 (W) too, the court required only a bona fide belief as prerequisite to find that consciousness of wrongfulness, and thus intent, was absent. Exactly ten years following De Oliveira, the matter of S v Joshua 2003 1 SACR 1 (SCA) afforded the Supreme Court of Appeal another chance to reflect on putative self-defence. The court referred to the requirements established in De Oliveira, then stated a subjective mistaken belief as the only requirement to eliminate intent, and finally overturned the court a quo’s convictions in Joshua from murder to culpable homicide. By that time, the approach seemed to have been firmly established. Sticking with the trend, a truly mistaken belief served as sole requirement to eliminate intent in S v Dougherty 2003 2 SACR 36 (W) also, again resulting in a conviction of culpable homicide instead of murder. But then the much publicised, media-hyped Pistoriusmatter came before our courts. At first, the court in S v Pistorius CC 113/2013 [2014] ZAGPPHC 793 (12 September 2014) seemed to pick up where previous judgments had left off, remaining on course by referring to a mistaken though genuine belief as the only requirement to eliminate intent. However, based on inconsistencies in the accused’s testimony and, more specifically, Pistorius’s statement that he had never intended to shoot anyone, the court eventually rejected putative self-defence in its entirety – a pity, as a contrary conclusion would have been far more logical. Yet it was the Supreme Court of Appeal’s subsequent finding in Director of Public Prosecutions, Gauteng v Pistorius 2016 2 SA 317 (SCA) that dealt any potential certainty regarding the approach to putative self-defence a particularly severe blow. The court found that putative self-defence had to fail, inter alia since Pistorius’s mistaken belief of self-defence was not “rational”. In the proverbial one fell swoop, therefore, the Supreme Court of Appeal returned the countries’ courts to the 1950s approach to putative self-defence, applying an objective test – no more, no less.
This seesawing between divergent views is not only confusing from a legal theoretical point of view, but to many accused means the difference between a conviction of culpable homicide and a conviction of murder, and thus also widely differing sentences. The importance of obtaining legal certainty in this regard cannot be overemphasised. Based on the examination of the uncertain path up to Pistorius and beyond, this contribution finally offers a few recommendations to facilitate a more clear-cut, uncomplicated and constant approach to putative self-defence in future. The primary recommendation is for academics and practitioners (the courts) to collaborate in working towards the consistent application of a solely subjective test to establish consciousness of wrongfulness. Only where consciousness of wrongfulness is found to have been absent, the objective “reasonable person” test should be used to determine negligence. In two secondary recommendations, the article also advocates that defence against either real or perceived intruders at home be dealt with differently from other cases, particularly in light of current societal trends, with burglary and robbery the order of the day. Taking into account the facts and circumstances of each matter, people’s homes should be regarded and approached as their safe haven. This implies that decisive action should be permitted if you or a family member were to be confronted by an intruder at home in the middle of the night. In this regard, Snyman’s remarks in Criminal Law (2014) are particularly relevant: “Experience tells us that even a moment’s hesitation by [a homeowner] in such circumstances is to require her to gamble with her life or that of the other people in the house, and the law cannot expect this of her.” In addition, consensus is urgently required on the need for firing warning shots at home, which may in some instances be unreasonable to expect of a homeowner faced with an intruder in the current climate of brutal violence.
Keywords: consciousness of wrongfulness; genuine mistaken belief; legal certainty; Pistorius; putative self-defence; reasonable person; South Africa
Lees die volledige artikel in Afrikaans: Putatiewe noodweer as verweer in die Suid-Afrikaanse strafreg: ’n Kritiese oorsig van die onseker pad tot by Pistorius en daarná
The post Putative self-defence as a defence in South African criminal law: A critical overview of the uncertain path to Pistorius and beyond appeared first on LitNet.