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Criminal Law Engelbrecht Case (Private Defence)

PRIVATE DEFENCE...
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Criminal law (LAWS 2014)

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Author: S Goosen

BATTERED WOMEN AND THE REQUIREMENT OF IMMINENCE

IN SELF-DEFENCE

dx.doi/10.4314/pelj.v16i1.

2013 VOLUME 16 No 1

ISSN 1727-

BATTERED WOMEN AND THE REQUIREMENT OF IMMINENCE IN SELF-

DEFENCE

S Goosen

1 Introduction

Certain types of intentional killing are no longer regarded as unlawful, and therefore

are not punished as murder. South Africa recognises that killing in self-defence is

justifiable, and therefore not murder.

####### 1

Burchell offers the following definition of

private defence:

A person who is the victim of an unlawful attack upon person, property or other
recognized legal interest may resort to force to repel such attack. Any harm or
damage inflicted upon an aggressor in the course of such private defence is not
unlawful. 2

Burchell has noted that two important and yet somewhat conflicting themes shape

the structure of the law of private defence. One is that private defence involves a

choice between two evils, and that in choosing, the lesser evil is to be preferred. The

evils are set out as follows. Firstly, the harm threatened by an attack upon the

interests of an individual. Secondly, harm perpetrated against the legal interest of

the attacker, in the process of repelling the attack. The doctrine of the lesser evil

requires that the defender should not inflict greater harm than that threatened by

the initial attack. Burchell notes: "the central organizing principle of this approach is

thus the comparative assessment of harms involved".

####### 3

The opposing approach is one which justifies private defence using the concept of

the autonomous individual. The theory underlying this approach is that every person

has the right to protect their legal interests, and is under no obligation to surrender

Samantha Goosen. LLB (UPE), LLM (Criminal Justice) (UPE), PhD (UKZN). Post-doctoral Research
Fellow, University KwaZulu-Natal. Law lecturer, University of KwaZulu-Natal. Email:
goosens@ukzn.ac.
1 Milton Common Law Crimes 312.
2 Burchell and Milton Principles of Criminal Law (2005) 230.
3 Burchell and Milton Principles of Criminal Law (2005) 231.
that is to be the point of departure. When in future the unruly horse of public policy
is saddled, its rein and crop will be that value system. 9

This assessment calls for a two-staged approach to be adopted. In respect of the

first stage, the content and scope of the rights protected - including the meaning

and objects of the conduct challenged - must be determined to establish if there is

such deprivation or limitation.

####### 10

If there is such a limitation, the enquiry would then

proceed to the second stage. This stage entails a balancing process which applies a

proportionality test provided for in section 36(1) of the Constitution. The abused

woman relying on the conduct stipulated should be able to demonstrate that the

limitation is justifiable under the Constitution.

####### 11

While the Constitution does not establish a hierarchy of rights, judges and academics

have acknowledged that some rights are more foundational, constituting a core of

rights from which others are derived. In S v Makwayane, 12 O'Regan J earmarked the

right to life as "antecedent to all other rights in the Constitution." The same holds

true for the right to dignity, especially when taken together with the right to life. To

this should be added the right to bodily integrity. Ally and Viljoen note the meaning

of the right to bodily integrity:

Violence against an individual is a grave invasion of personal security. Section
12(1)(c) requires the State to protect individuals, both by refraining from such
invasions itself and by discouraging private individuals from such invasions. 13

To meet constitutional muster, the limitation must be closely linked to its purpose. 14

Abused women are entitled to protect their lives, and therefore can kill to achieve

this purpose. However, an important factor in such an evaluation is if less restrictive

means were available to achieve the stated objectives. As Ally and Viljoen note, one

way of posing this question is to reformulate some of the case law as common law:

"the use of violence, especially lethal force, can only be justified if it is necessary;

9 Du Plessis v De Klerk 1995 2 SA 40 (T) 501i-j.
10 S v Walters 2002 7 BCLR 663 (CC) para 26.
11 S v Walters 2002 7 BCLR 663 (CC) para 326.
12 S v Makwanyane 1995 6 BCLR 665 (CC).
13 Ally and Viljoen 2003 SACJ 132.
14 Section 36(1)(d) Constitution.

that is, if it is the only means to avoid death or grievous bodily harm". 15 While it

could be said that the battered woman could have left the abusive relationship, the

law does not require the abused woman to leave her home, nor does it expect

ordinary persons to display acts of heroism. Therefore the death or serious bodily

injury of the abuser caused as a result of the limitation can be justified when section

36 is applied.

####### 16

Private defence is an extraordinary remedy that involves the infliction of harm upon

another individual. To escape criminal liability for this act the defender must be able

to show that her resort to private defence conformed to the social and legal norms

that result in the use of self-help by citizens. In respect of self-defence the norms

that apply require that the defender be able to provide evidence that the resort to

force was necessary in the circumstances that she found herself in, and that she

used means appropriate to the danger that confronted her. These requirements for

successfully invoking the defence are expressed as conditions that must have been

present or complied with. Such "triggering" conditions relate to the nature of the

attack and the nature of the defender's response (the defence).

####### 17

For a situation of private defence to arise, evidence must show (a) an attack, (b)

upon a legally protected interest; and (c) that the attack was unlawful.

The first requirement is that there must have been an attack. Fear alone is not

sufficient to justify a defence. 18 Private defence may be utilised only where there is

an attack which has already commenced or is imminent.

####### 19

The term "commenced"

means that private defence may be resorted to only where the attack has already

begun and there is no time to seek other forms of protection. 20 Burchell notes that

"imminent means that the attack is about to begin immediately - what is important

here is not so much the imminence of the threat, but rather the immediacy of the

15 Ally and Viljoen 2003 SACJ 132.
16 Constitution of the Republic of South Africa, 1996.
17 Burchell and Milton Principles of Criminal Law (2005) 233.
18 However, fear may be relevant to establishing the existence of "putative" private defence.
19 Steyn 1932 SALJ 462.
20 Burchell and Milton Principles of Criminal Law (2005) 234.
The question whether an accused, who relies on self-defence, has acted lawfully
must be judged by objective standards. In applying these standards one must
decide what the fictitious reasonable man, in the position of the accused and in
light of all the circumstances would have done. 28

Snyman suggests that "reasonableness is a relative concept, depending on the

circumstances of each case". 29 Generally, it is accepted that the "reasonableness"

test is a vehicle to ascertain the legal convictions of the community or the

community's sense of equity and justice ( boni mores). This has been described as an

instrument of judicial policy.

####### 30

In Government of the Republic of South Africa v

Basdeo 31 the court noted that²

the value judgment on which the application of the general criterion of
reasonableness is based, is on considerations of morality and policy and the court's
perception of the legal convictions of the community, and entails a consideration of
all the circumstances of the case. 32

In conducting such an enquiry, the court must be guided by values and norms

underlying the Constitution. The Constitution, being the supreme law of the land, is

a system of objective, normative values for legal purposes. An approach to the "legal

convictions" test would be informed by the foundational values of the Constitution,

namely "human dignity, equality and freedom".

####### 33

Such an approach will have as its

basis the circumstances and perceptions of the accused. Section 9 of the

Constitution requires that courts have regard to the particular circumstances of the

accused.

####### 34

Although it has been noted that the objective test is subject to the qualification that

the person acting in self-defence may not benefit from prior knowledge that he has

of his attacker, which the reasonable person would not have,

####### 35

it would appear as if

28 S v Motleleni 1976 1 SA 403 (A) 406c.
29 Snyman 2004 SACJ 178.
30 S v Engelbrecht 2005 2 SACR 41 (W) para 330.
31 Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A).
32 Government of the Republic of South Africa v Basdeo 1996 1 SA 355 (A) 367f.
33 Section 39(2) Constitution.
34 Section 9 Constitution.
35 Burchell and Hunt South African Criminal Law (1983) 331.

the courts are moving towards a more qualified objective test of self-defence. This

point was made clear in S v Ntuli

####### 36

where Holmes JA noted that the South African

courts have always insisted that they must be careful to avoid the role of armchair

critics, wise after the event, and weighing the matter in the secluded security of the

court-room. The approach is that "in applying these formulations [the triggering

conditions] to flesh and blood facts, the courts adopt a robust attitude, not seeking

to measure with nice intellectual callipers the precise bounds of legitimate self-

defence". 37

In S v Engelbrecht

####### 38

the accused had been the victim of domestic violence for a

number of years. This included not only physical but also psychological abuse. On

the day of the deceased's death he had been drinking and watching pornography.

The deceased indicated to his wife that he wished to act out a scene in a video that

he was watching. While the accused was submitting to the deceased's demands, the

accused's daughter walked into the bedroom. 39 Later that night, the accused's

daughter accidentally knocked the deceased in the face. 40 He screamed at her and

hit her, and forbade the accused to talk to her daughter. If she failed to heed his

instructions, he said she would be killed. The accused then proceeded to kill her

sleeping husband by locking his thumbs in thumb cuffs behind him and tied a plastic

bag around his head which subsequently caused him to suffocate.

####### 41

In this case,

Satchwell J held that self-defence had to be evaluated objectively, and is based on a

consideration of what would have been reasonable in the situation the accused

found herself in. 42 The judge noted that "the reasonable woman must not be

forgotten in the analysis and deserves to be as much part of the objective standard

of a reasonable person as does the reasonable man".

####### 43

Therefore, on this basis it

was held that:

36 S v Ntuli 1975 1 SA 429 (A).
37 S v Ntuli 1975 1 SA 429 (A) 437e.
38 S v Engelbrecht 2005 2 SACR 41 (W).
39 S v Engelbrecht 2005 2 SACR 41 (W) para 128.
40 S v Engelbrecht 2005 2 SACR 41 (W) para 130.
41 S v Engelbrecht 2005 2 SACR 41 (W) paras 10-11.
42 S v Engelbrecht 2005 2 SACR 41 (W) para 327.
43 S v Engelbrecht 2005 2 SACR 41 (W) para 328.
woman stayed in the abusive relationship. Still less is the court entitled to conclude
that she forfeited her right to self-defence for having done so. 49

In discussing the proportionality requirement, Satchwell J noted that in the case of

an abused woman, her particular circumstances should be taken into account:

the parties respective ages; the relative strengths, gender socialization and
experiences; the nature duration and development of their relationship; the content
of their relationship, including power relations on an economic, sexual, social,
familial, employment and socio-religious level; the nature, the extent, duration,
persistence of the abuse; the purpose of and achievements of the abuser, the
impact upon the body, mind, heart, spirit of the victim; the effect on others who
are aware of or implicated in the abuse; the extent to which it is possible for State-
legislated, formal institutional, informal personal bodies and individuals to intervene
to terminate the abuse; the extent to which it is possible for the abused victim to
access and utilize any of the above channels in the event that they previously failed
and to unilaterally intervene to impose constitutional protections. 50

Satchwell J went on to note that in evaluating if the actions taken by the accused

were reasonable, the analysis is partly objective and partly subjective. 51 Placing

emphasis on the accused's individual circumstances could have the effect of

subjectivising the test for self-defence. This raises the question: if the Engelbrecht

case is correct, would it not have been better dealt with as an instance of putative

self-defence? In terms of current South African law, if a battered woman is not able

to successfully plead self-defence because the court found her conduct was unlawful,

objectively assessed, 52 then she may be acquitted of murder on the basis of putative

private defence, which is subjectively assessed. 53 In S v De Oliviera 54 it was held

that such a defence would be of assistance to an accused "who honestly believes his

life ... [is] in danger, but objectively viewed [it is] not".

####### 55

This honest but incorrect

belief would eliminate the necessary intention to commit such an unlawful act.

Furthermore, the test for intention is subjectively assessed:

49 R v Lavallee 1990 55 CCC (3d) 97 para 356.
50 R v Lavallee 1990 55 CCC (3d) 97 para 357.
51 R v Lavallee 1990 55 CCC (3d) 97 para 358.
52 S v De Oliviera 1993 2 SACR 59 (A).
53 S v De Oliviera 1993 2 SACR 59 (A) 163i-j.
54 S v De Oliviera 1993 2 SACR 59 (A) 163i-j.
55 Reddi 2005 SACJ 275.
The focus of attention in ascertaining whether or not intention existed is the
woman's subjective state of mind. The fact that her belief may have been
unreasonable or even foolish under the circumstances is of no consequence at all
as this enquiry does not concern itself with what a reasonable person would have
done under the same circumstances. 56

Furthermore, the "social framework or circumstances that may have impacted on the

woman's conduct would have a bearing on the determination of the woman's

culpability".

####### 57

Evidence of the "cyclical nature of abuse" as well as the woman's

failed attempts at leaving her abuser would be highly relevant to inform putative

self-defence. 58 For this reason, if a reasonable person located in the extraordinary

circumstances of the accused would not have foreseen that the resort to self-

defence was unlawful, then the abused woman cannot be expected to have such

foresight. In such circumstances "her lack of foresight would not be regarded as

negligent and a charge of culpable homicide would fail". 59 It is submitted that

putative self-defence is highly relevant to the abused woman who kills her abuser in

circumstances that fall outside the parameters of private defence, as it may

represent the difference between a conviction of murder and one of culpable

homicide in South African law. At its most extreme, it may even prove the difference

between a conviction of murder and a complete acquittal.

####### 60

The second requirement is that the private defence may be resorted to only in

respect of a legally recognised protected interest in law. Many legal systems have

approached the question of what interests may be protected by private defence in a

casuistic fashion, and this results in not all legal interests being recognised as the

subject of the private defence. 61 Section 7(2) of the Constitution requires the State

to "respect, promote and fulfil the rights in the Bill of Rights".

####### 62

The foundational

values of the Constitution include those of "equality" and "dignity." Sections 9(1) and

56 Reddi 2005 SACJ 275.
57 Reddi 2005 SACJ 276.
58 Reddi 2005 SACJ 276.
59 Reddi 2005 SACJ 276.
60 Reddi 2005 SACJ 276.
61 Burchell and Milton Principles of Criminal Law (2005) 235. It is universally agreed that a person
is entitled to protect: life (see R v Jack Bob 1929 SWA 32; R v Zikalala 1953 2 SA 568 (A)); limb
(see R v Cele 1945 NPD 173; R v Patel 1959 3 SA 121 (A) 123); dignity (see S v Van Vuuren
1961 3 SA 305 (E)); sexual integrity (see R v Nomahleki 1928 GWL 8).
62 Constitution of the Republic of South Africa, 1996.

would appear that the legislature has chosen to emphasise the effect of abusive

conduct upon the victim, as opposed to the specific form taken by such conduct.

####### 65

In S v Baloyi 66 the Constitutional Court noted that domestic violence compels

constitutional concern in a number of important respects. On the one hand, the

Constitution:

... has to be understood as obliging the state directly to protect the right of
everyone to be free from domestic violence. Indeed, the State is under a series of
constitutional mandates which include the obligation to deal with domestic violence;
to protect both the rights of everyone to enjoy freedom and security of the person
and to bodily and psychological integrity, and the right to have their dignity
respected and protected, as well as the defensive rights of everyone not to be
subjected to torture in any way and not to be treated or punished in a cruel,
inhuman or degrading way. 67

On the other hand,

to the extent that it is systematic, pervasive and overwhelmingly gender-specific,
domestic violence both reflects and reinforces patriarchal domination, and does so
in a particularly brutal form ... The non-sexist society promised in the foundational
clauses of the Constitution, and the right to equality and the non-discrimination
guaranteed by section 9, are undermined when spouse-batterers enjoy immunity. 68

The Constitutional Court endorsed the view that domestic violence is "systematic,

pervasive and overwhelmingly gender-specific." It "both reflects and reinforces

patriarchal domination and does so in a particularly brutal form". It thus also

implicates the core values of equality.

####### 69

In Engelbrecht 70 it was held that those rights which were enshrined in the

Constitution constituted the interests which were deserving of protection in this

defence of justification. It followed that the interests which were attacked and which

an abused woman could protect include her life, bodily integrity, dignity, quality of

65 S v Engelbrecht 2005 2 SACR 41 (W) para 157.
66 S v Baloyi 2000 1 SACR 79 (CC).
67 S v Baloyi 2000 1 SACR 79 (CC) para 11.
68 S v Baloyi 2000 1 SACR 79 (CC) para 12.
69 S v Baloyi 2000 1 SACR 79 (CC) para 12.
70 S v Engelbrecht 2005 2 SACR 41 (W).

life, her home, her emotional and psychological wellbeing, her freedom, and the

interests of her children. In short, she could defend her status as a human being

and/or mother.

####### 71

Thirdly, the private defence can be resorted to only in respect of an attack that is

unlawful.

####### 72

The fact that the attacker is insane and lacks criminal capacity does not

cause the attack to be lawful and thus defence against such an attack is lawful. 73 In

the case of an abused woman, the unlawful attack against which she defends herself

or others may be one individual incident of abuse, a series of violations, or an

ongoing cycle of maltreatment. Not all attacks are required to be directed at the

abused woman herself, but obviously there must have been some assault upon her,

for her to be considered abused. The attack may, but need not necessarily, be

physical in nature, and may include psychological and emotional abuse, degradation

of life, diminution of dignity, and threats to commit any such acts.

####### 74

The defence employed by an abused woman must also comply with certain

requirements. First of all, she must prove that the defensive act was necessary to

avert the attack, in other words, the defence employed by the abused woman must

be necessary to protect the threatened interest. Performing the defensive act ought

to be the only way in which the abused woman can necessarily avert the threat to

her rights or interests. This is decided on the facts of each case.

####### 75

The basic idea

underlying private defence is that a woman is allowed to "take the law into her own

hands," as it were, only if the ordinary legal remedies do not afford her effective

protection. The rationale underlying this defence has been stated as ensuring that

"justice should not yield to injustice".

####### 76

As Snyman has noted, "[t]he defence deals

with nothing less than the protection of justice in the circumstances in which the

police are unable because of their absence, to perform this task". For this reason, it

is essential that the court critically examines the extent to which the "ordinary law of

71 S v Engelbrecht 2005 2 SACR 41 (W) para 345.
72 Ntanjana v Vorster and Minister of Justice 1950 4 SA 398 (C) 404-405.
73 Burchell and Milton Principles of Criminal Law (2005) 237.
74 S v Engelbrecht 2005 2 SACR 41 (W) para 344.
75 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) 497h.
76 Snyman Criminal Law (2006) 102.

Satchwell J noted that the court must, in this context, be extremely cautious in

seeking to rely upon examination of the efforts taken by an abused woman to

extricate herself from the abusive situation, or to escape the abusive spouse or

partner. Judgment should not be passed on the fact that the battered woman stayed

in the abusive relationship. Still less is the court entitled to conclude that she

forfeited her right to private defence by having so done.

####### 83

There must be a certain balance between the attack and the defence. 84 As Snyman

notes²

The upholding-of-justice theory principle plays an important role in the rule that
there must be a reasonable relationship between the attack and the defensive act -
that is, the requirement of proportionality in private defence. The harm occasioned
by the defensive action must be proportional to the legal interests of the defender
that are endangered and that are being protected by her However, when accepting
the individual protection theory as the only basis for private defence, it could be
argued that the defending party may fend off imminent infringement of her rights
without the defensive action necessarily being restricted in any way. The problem is
that the legal order does not tolerate gross disproportion between the interest
SURWecWed b\ Whe defeQdeU aQd Whe iQWeUeVW Vhe iV aWWackiQg « DiVUegaUd Rf Whe
requirement of proportionality leads to law abuse - that is, disregard of the
upholding-of-justice principle underlying private defence. 85

The limits of private defence are difficult to describe with any degree of precision,

since everything depends on the particular circumstances of the case. The approach

to be favoured, which was adopted by the court in In re Ex Parte Minister of Justice:

S v Van Wyk,

####### 86

is whether the defender acted reasonably when he defended himself

or his property. Put another way, the court will look at what may reasonably be

expected of the attacked party in the circumstances of each case:

This test allows the court to assess the defence in the context of factors such as
the nature of the attack, the interest threatened, the relationship of the parties,
their respective age, sex, size and strength, the location of the incident, the nature
of the means used in the defence, the result of the defence. 87
83 S v Engelbrecht 2005 2 SACR 41 (W) para 356.
84 Snyman 2004 SACJ 189.
85 Snyman 2004 SACJ 189-190.
86 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A).
87 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) para 49, discussed in Burchell
and Milton Principles of Criminal Law (2005) 241.

In addition to the factors mentioned, the court in Engelbrecht took into account

factors which were relevant to the situation of the accused, and which could be used

to show that her actions were reasonable in the light of her circumstances. These

include:

The parties respective ages; relative strengths, gender, socialization and
experiences; the nature, duration and development of their relationship; the
content of their relationship, including power relations on an economic, sexual,
social, familial, employment and socio-religious level; the nature, the extent,
duration, persistence of the abuse; the purpose of and achievements of the abuser;
the impact upon the body, mind, heart, spirit of the victim; the effect on others
who are aware of or implicated in the abuse; the extent to which it is possible for
State-legislated, formal institutional, informal personal bodies and individuals to
intervene to terminate the abuse; the extent to which it is possible for the abused
victim to access and utilize any of the above channels in the event that they
previously failed to unilaterally intervene to impose constitutional protections. 88

While these factors noted by the court suggested that proportionality between the

attack and defensive action on her part had played an important role, the assessors

in Engelbrecht chose to emphasise help-channels which they felt Mrs Engelbrecht

had not utilised sufficiently

####### 89

  • thus undermining the court's previous statements that

proportionality between the attack and the defence was important.

Secondly, the right of private defence can be exercised only against the attacker, not

against a third party. 90

The third requirement, namely the one of imminence, lies at the heart of the

justification of self-defence and forms the focal point of this discussion.

####### 91

This

intrinsic limitation on the scope of self-defence ensures that citizens act only when

the state has failed to protect their legal rights.

####### 92

However, the case of S v

88 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) para 357.
89 Ex Parte Minister of Justice: In re S v Van Wyk 1967 1 SA 488 (A) paras 418, 448.
90 Burchell and Milton Principles of Criminal Law (1997) 142.
91 The attack should not yet have been completed ( S v Mogohlwane 1982 2 SA 587 (T). Any
measure taken after the attack has ended would be retaliatory rather than defensive ( R v Hayes
1904 TS 383).
92 Rosen 1986 Am U L Rev 31.

advanced for the imminence requirement, and why these theories will not be

practically applicable to South African law.

2 Different standards of imminence

2 An "immediately necessary" standard

Robinson notes that while the term "imminent" appears to modify the nature of

triggering conditions, it seems as if the restriction is more properly viewed as a

modification of the necessity requirement.

####### 101

Practically speaking, actions taken in

the absence of an imminent threat may not be necessary. 102 Consider the

hypothetical hostage scenario, where X kidnaps Y and holds him hostage. X

announces that in one week's time he will kill Y. Each morning X brings Y's daily-

food ration. Should the imminence requirement be taken literally, it would prevent Y

from using deadly force until X is standing over him with a knife. 103 If the concern

over the limitation is simply to exclude threats of harm that are too remote to

require a response, the problem cannot be solved by requiring immediacy of the

threat, but the immediacy of the response necessary in defence. Removed from the

issue of reasonableness, there is little practical difference between "imminence" and

"immediately necessary." It can further be suggested that the elimination of the

"imminence" and the implementation of "immediately necessary" does not

necessarily signify that a court will always disregard imminence in an abused

woman's case. 104

The problem is that an "immediately necessary" standard obscures the important

distinction between self-defence and other self-preferential acts. 105 In the original

version of Regina v Dudley Stephen,

####### 106

four men were trapped in a life boat with no

food to eat for twenty days. Dudley made a decision to kill and eat Richard Parker, a

101 Robinson Criminal Law Defenses 76.
102 Robinson Criminal Law Defenses 76.
103 Robinson Criminal Law Defenses 78.
104 Veinsreideris 2000 U Pa L Rev 623.
105 Veinsreideris 2000 U Pa L Rev 614.
106 Regina v Dudley Stephen 14 QBD 273 (1894).

cabin boy, who had consumed considerable amounts of seawater, and was dying. 107

After the three men had killed Parker they were rescued and charged with his

murder.

####### 108

Since Parker had not been a threat to the men, they were not acting in

self-defence, but would have to rely on necessity: that they had chosen the lesser

evil. However, the court did not allow necessity to be a defence for murder.

####### 109

Furthermore, consider a hypothetical scenario where the accused in such a case

claimed self-defence: the use of defensive force is premised upon an assessment of

the probabilities and alternatives. For defensive force to be necessary, the defender

must reasonably believe that harm is likely, and that there is no alternative to the

use of force. The difference between the two cases is that while the first is a self-

preferential killing, the second is self-defensive. All self-defence cases are instances

of self-preference, but not all self-preferential actions constitute self-defence. What

is distinctive about the self-defence case is that the act of force is employed to ward

off an unjust immediate threat. 110 However, in the first scenario, the act was not

defensive, as Parker did not pose a threat to the men. It is submitted that self-

defence is treated differently from other necessary acts of self-preservation.

Although the killing may be objectionable, the right to self-defence cannot be denied.

Current law reflects this sentiment. 111 Further, while the argument for the

abandonment of imminence is so that a defender should be able to act as early as is

necessary to defend herself effectively, this can create problems since the

"immediately necessary" standard operates independently of the intentions,

capabilities, or actions of a putative aggressor. 112

While it could be correct to insist on a distinction between imminence and necessity,

it could also be argued that the moral basis for the imminence rule is not correct.

While it is true that self-defensive acts are justified responses to unjust acts of

aggression, the problem is that an act of aggression does not suddenly become

107 Regina v Dudley Stephen 14 QBD 273 (1894) 273-274.
108 Regina v Dudley Stephen 14 QBD 273 (1894) 274.
109 Regina v Dudley Stephen 14 QBD 273 (1894) 279.
110 Ferzan 2004 Ariz L Rev 247.
111 Ferzan 2004 Ariz L Rev 249.
112 Ferzan 2004 Ariz L Rev 249.
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Criminal Law Engelbrecht Case (Private Defence)

Course: Criminal law (LAWS 2014)

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Author: S Goosen
BATTERED WOMEN AND THE REQUIREMENT OF IMMINENCE
IN SELF-DEFENCE
http://dx.doi.org/10.4314/pelj.v16i1.4
2013 VOLUME 16 No 1
ISSN 1727-3781

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