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Questions and Answers
What is the primary basis for the lawful act of necessity?
Which of the following statements accurately describes the difference between necessity and private defense?
What does impossibility refer to in the context of legal obligations?
Under what condition can a soldier legally refuse an order?
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Which factors must be present for the defense of superior orders to be valid?
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What condition must be met for an act of necessity to be lawful?
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What constitutes an unlawful act under the grounds of private defense?
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Which of the following statements about the justification of necessity is incorrect?
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What constitutes lawful possession of ammunition under the Act?
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Which of the following items qualifies as ammunition under the Act?
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What is the maximum imprisonment sentence for a violation of Section 4?
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What is the minimum sentence for a first offender of an offence relating to automatic firearms?
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Which of the following individuals is NOT authorized to possess ammunition under the Act?
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Which section of the Act indicates the offences related to ammunition possession?
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What is the imprisonment duration for a second offender related to automatic firearms?
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Which of the following accurately describes what a 'cartridge' consists of?
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What is necessary to include in the charge sheet when a semi-automatic firearm is involved?
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Which section of the Firearms Control Act, 2000 provides for the harshest sentencing for prohibited firearms?
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What must be proven to show unlawful possession of ammunition?
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According to the ruling in Sehoole (730/13), what right does the state have regarding charging the accused?
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What constitutes possession of a prohibited firearm?
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What is the mens rea required for unlawful possession of ammunition?
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Which entity is recommended to provide expert evidence related to firearm characteristics?
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What does section 212(4)(a) of the Criminal Procedure Act, 1977 pertain to?
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What example illustrates the concept of presumed consent or negotiorum gestio?
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Which of the following statements about disciplinary chastisement in South African law is correct?
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What is the first leg of the test for criminal capacity?
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What occurs if either leg of the criminal capacity test is not met?
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In which case was the appeal regarding non-pathological criminal incapacity made?
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Which justification for disciplinary chastisement has been completely abolished in South African law?
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What defines a person's criminal capacity during trial?
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Which of the following is a required characteristic of criminal capacity?
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What is required for a patient to possess a dependence-producing substance?
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Under what condition can a veterinary nurse possess a dependence-producing substance?
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Who among the following is allowed to possess dependence-producing substances?
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What is the role of the Director General: Welfare concerning dependence-producing substances?
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What is required to lawfully possess a dangerous dependence-producing substance?
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Which of the following individuals is NOT included in the list of those permitted to possess dependence-producing substances?
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What must all pharmacists consider when acquiring dependence-producing substances?
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Who can request the supply of a dependence-producing substance for an animal?
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What does 'lawful possession' of a dependence-producing substance require?
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What can a midwife NOT do regarding dependence-producing substances?
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Study Notes
Defences to Criminal Liability
- Culpability on a charge of murder is judged according to what the accused believed.
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Necessity
- A person acts in necessity, and her act is therefore lawful, if she acts in protection of her own or somebody else’s life, bodily integrity, property or other legally recognized interest which is endangered by a threat of harm which has commenced or is imminent and which cannot be averted in another way, provided the person is not legally compelled to endure the danger and the interest protected by the protective act is not out of proportion to the interest infringed by the act.
- It is immaterial whether the threat of harm takes the form of compulsion by a human being or emanates from a non-human agency such as force of circumstance.
- Necessity and private defence are closely related to each other.
- Both grounds of justification protect interests which are of value to the person, such as life, bodily integrity, and property, against threatening danger.
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Differences
- Private defence always stems from and is always directed at an unlawful attack; necessity, on the other hand, can stem from either an unlawful act or from chance circumstances, such as acts of nature or even an animal.
- Private defence is directed at the attacker (wrongdoer), while necessity is directed at the interests of another innocent party.
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Impossibility
- Impossibility may justify failure to comply with a positive legal obligation.
- The defence of impossibility is relevant where it is impossible for the accused to comply with a positive ruling of the law.
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Superior Orders
- The defence of obedience to orders arises in the context of obedience to military and police commands.
- A soldier is compelled to obey an order only if the order is manifestly lawful.
- If it is manifestly unlawful, he may not obey it; and if he does, he acts unlawfully.
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Presumed Consent or Negotiorum gestio
- An act that infringes upon the interests of another and the person meets all of the definitional requirements of the crime, however their actions are justified in that they further the interests of the person against whom the alleged crime is committed.
- Example: breaking into a burning home to rescue the homeowner.
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Disciplinary Chastisement
- In the common law, disciplinary chastisement was a ground of justification where the punishment of a child, learner, spouse or employee was reasonable and moderate.
- Over time, the justifications regarding a spouse and employee fell away.
- As did that of a school learner in the Constitutional Court decision of Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC).
- The Constitutional Court decision of Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SACR 113 (CC) ruled that parental chastisement of their children was unconstitutional and that chastisement is not a ground of justification.
- In South African law, chastisement is not a ground of justification.
Criminal Capacity
- The accused must have criminal capacity before they can stand trial.
- Criminal Capacity is a two-legged test:
- A person must have the ability to understand and appreciate the wrongfulness of his/her conduct.
- He/she must be able to conduct him/herself in appreciation of the wrongfulness of their conduct and understand the consequences of their actions.
- Criminal Capacity must exist at the time of the committal of the offence.
- If one or both legs of this test are amiss, the accused cannot be prosecuted.
- Please see the matter of S v Eadie 2002 (1) SACR 663 (SCA), where the appellant was found guilty of murder in a lower court after he killed a motorist in an act of road rage and appealed his conviction to the Supreme Court of Appeal.
Firearms Related Offences
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Unlawful Possession of Firearms
- Possession of a firearm without a licence is an offence.
- The Firearms Control Act, 2000 (Act 60 of 2000), provides minimum sentences for possession of semi-automatic firearms, although the Act does not provide for a separate offence relating to these firearms.
- It is important to note in the charge sheet that a semi-automatic firearm is involved because minimum sentences are applicable.
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Possession of Firearms without Serial Numbers
- If a person is in possession of a firearm without a serial number, they are in possession of a prohibited firearm and at the same time also in possession of the firearm without a licence.
- The application of section 3 and section 4 of the Act overlap in these circumstances.
- The state is entitled to charge the accused with any one of the two sections, but it is preferable to charge under section 4 where applicable because the Firearms Control Act, 2000, provides the court with sentencing jurisdiction of up to 25 years in the case of prohibited firearms.
- The best way to prove that a particular firearm has the qualities defined in the definitions would be to involve the experts of the Forensic Laboratories of the South African Police Services.
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Unlawful Possession of Ammunition
- Section 90 of the Firearms Control Act, 2000 states that "Any person who unlawfully possesses any ammunition commits an offence".
- The elements of this offence are:
- The accused unlawfully possessed ammunition.
- The accused had mens rea (intent).
- Possession of ammunition is considered unlawful unless the accused lawfully possessed either a firearm capable of discharging that ammunition; or possessed a permit or licence for such ammunition or was otherwise authorized to be in the possession of such ammunition.
- A lawful reason to possess ammunition exists only where the accused is duly licensed or falls within one of the exceptions created in the Act:
- Holding a licence in respect of a firearm capable of discharging that ammunition;
- Holding a permit to possess ammunition;
- Holding a dealer's licence, manufacturer's licence, gunsmith's licence, import, export or in-transit permit or transporter's permit issued in terms of this Act; or
- Otherwise being authorized to do so.
- The Act defines ammunition as a primer or complete cartridge. A 'cartridge' is defined as a complete object consisting of a cartridge case, primer, propellant and bullet. Lead pellets discharged from an air-rifle are thus not ammunition for purposes of the Act.
Penalties
- The offences in the Firearms Control Act, 2000 are created in section 120 and the penalties in section 121, which states that "Any person convicted of a contravention of or a failure to comply with any section mentioned in Column 1 of Schedule 4, may be sentenced to a fine or to imprisonment for a period not exceeding the period mentioned in Column 2 of that Schedule opposite the number of that section”.
- Sections 3, 4 and 90 of the Act, as discussed above, all fall within Schedule 4 column 1.
- The maximum sentences as per column 2 of Schedule 4 for the three offences as discussed are as follows;
- Section 3 – Maximum period of imprisonment 15 years
- Section 4 – Maximum period of imprisonment 25 years
- Section 90 – Maximum period of imprisonment 15 years.
- Minimum Sentences apply in relation to the possession of automatic or semi-automatic firearms as they form part of the offences as listed in Part II of Schedule 2 of the Criminal Law Amendment Act 105 of 1997.
- Section 51(2) of the Criminal Law Amendment Act 105 of 1997 read with Part II of Schedule 2 of the same act reads as follows;
- “Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in-
- Part II of Schedule 2, in the case of –
- a first offender, to imprisonment for a period not less than 15 years;
- a second offender of any such offence, to imprisonment for a period not less than 25 years.
- Part II of Schedule 2, in the case of –
- “Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in-
Drug Offences
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Unlawful Possession of Dependence Producing Substances
- It is an offence to use or have in possession, any dependence producing substance or any dangerous dependence producing substance or any undesirable dependence producing substance.
- Exceptions apply to possession for medicinal purposes in accordance with relevant legislation:
- A patient who has acquired or bought any such substance from a medical practitioner, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder.
- A pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, dentist or practitioner.
- A patient who has acquired or bought any such substance for medicinal purposes.
- A medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder.
- A pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner.
- A veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian.
- The Director General: Welfare who has acquired or bought any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder.
- A patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to administer.
- An employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to supply, sell, transmit or export any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation.
- Any possession not included in the above exceptions is unlawful.
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Description
This quiz explores the concept of necessity as a defense to criminal liability, particularly in charges of murder. It examines the conditions under which a person can act lawfully to protect themselves or others against imminent harm, including the relationship between necessity and private defense.
