Fight back and you might be found guilty: Putative self-defence

July 23rd, 2015

By Sherika Maharaj

Feature Article_Maharaj_August_2015Putative self-defence has now been propelled into the South African limelight particularly due to the Oscar Pistorius trial and the defence strategy adopted by his legal team. A cautious perusal of the South African case law has set out concrete legal principals pertaining to this defence.

The end of the fairytale, but not the fairytale ending

The sports star was charged with the murder of his model girlfriend. The world wanted to know what happened and why it happened. In his plea explanation in respect of the charge of murder the accused described the incident as ‘a tragic one which occurred after he had mistakenly believed that an intruder or intruders had entered his home and posed an imminent threat to the deceased and him’. He armed himself with a firearm and stated further: ‘The discharging of my firearm was precipitated by a noise in the toilet which I, in my fearful state, knowing that I was on my stumps, unable to run away or properly defend myself physically, believed to be the intruder or intruders coming out of the toilet to attack Reeva and me’. In a judgment delivered on 11 and 12 September 2014 by Masipa J in S v Pistorius (GP) (unreported case no CC113/2013, 12-9-2013) (Masipa J) she dealt with putative private defence as the second possible defence argued by his legal team in her judgment. She stated further that: ‘In this case there is only one essential point of dispute and it is this: Did the accused have the required mens rea to kill the deceased when he pulled the trigger?’ It was held that viewed in its totality the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation. The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person. The court also held that there was nothing in the evidence to suggest that his belief that his life and the life of the deceased was in danger, was not honestly entertained. The accused was convicted of culpable homicide.

Private versus putative private defence – what is the difference?

Private defence is a defence excluding unlawfulness, which is judged objectively and ‘putative’ or ‘supposed’ private defence, relates to the mental state of the accused.

Where the accused raises the defence of private defence, the judicial inquiry commences with an examination of the unlawfulness or the lawfulness of the accused’s conduct. If the conduct is lawful, then an acquittal results. If the conduct is unlawful, then the inquiry might not end there. Provided a foundation is laid for the ‘putative’ private defence, then the court proceeds to examine whether the accused genuinely, albeit mistakenly, believed that he or she was acting in lawful private defence (where the charge requires intention to be proved) or whether this belief was also held on reasonable grounds (where negligence is sufficient for liability). The use of force in private defence is justified if it was reasonably necessary to repel an unlawful invasion of person, property or other legal interest, and the test of whether an accused had acted justifiably is an objective one. Putative private defence on the other hand could be raised successfully to show lack of intention where an accused had acted defensively in the honest but erroneous belief that his life or property was in danger.

In S v De Oliveira 1993 (2) SACR 59 (A), the appellate division held that the difference between private defence and putative private defence was significant: A person who acted in private defence acted lawfully, provided his account satisfied the requirements laid down for such defence and did not exceed its limits. In putative private defence it was not lawfulness which was in issue, but culpability. If an accused honestly believed his or her life or property to be in danger but objectively viewed were not, the defensive steps he or she took could not constitute private defence. If in those circumstances he or she killed someone his or her conduct was unlawful. His or her erroneous belief that his or her life or property was in danger may well exclude dolus, in which case liability for the persons death based on intention will also be excluded, at worst for him or her, he or she could then be convicted of culpable homicide. The appellant was convicted of murder and two counts of attempted murder. The appellant’s wife had alerted the appellant to the fact that there were unknown men outside the house. The appellant took his firearm and fired six shots towards the driveway. One shot hit a long standing employee of the appellant injuring him and another shot hit one of the employee’s friends killing him. The appellants defence was putative self-defence. The appellant did not testify in his defence. It was held that in the instant case where the appellant had not testified as to his state of mind at the time of the shooting, whether he had an honest belief that he was entitled to act as he did had to be determined with regard to such other evidence as reflected on his state of mind, and inferential reasoning. It was further held that there was no indication that any attack on the house or its occupants was imminent and the appellant was in a state of comparative safety; in these circumstances it was inconceivable that a reasonable man could have believed that he was entitled to fire at or in the direction of the persons outside in defence of his life or property.

In S v Naidoo 1997 (1) SACR 62 (T) the accused was charged with the murder of his father after he mistakenly believed that he was about to be burgled and discharged his firearm killing his father. He had been the victim of previous burglary attempts at his home. The accused raised the defence of putative self-defence. The court accepted that the accused did not have any intention to kill his father. The accused conceded that he foresaw as a distinct possibility that whoever was outside the door would be killed by his shot, that he had sufficient intention to kill in the form of dolus eventualis to sustain a conviction for murder. The court held that in order to sustain the conviction the state had to prove that there was a perception on the part of the accused that he acted unlawfully at the time. The state argued that the accused could not escape conviction on the ground of putative self-defence. It was held that if a person believed that he was under attack and the force which he applied to resist the putative attack was reasonable and necessary to ward off the attack, then he did not have the necessary knowledge of wrongfulness, which would constitute the dolus necessary to sustain a conviction for murder, but he could be convicted of culpable homicide. Regarding the factual question as to whether the state had proven beyond a reasonable doubt that the accused did not believe that he was entitled to shoot in the manner in which he did, it was held that objectively, a reasonable man in the position of the accused would not have fired the fatal shot aimed in the direction which he did. Taking the accused circumstances it was accepted that the accused believed that the force he used was commensurate with the perceived threat, and reasonably necessary to ward it off. Held that the accused in firing the shot did not have the necessary knowledge of wrongfulness to sustain a conviction of murder, but that he had acted negligently in the circumstances as perceived by him and was therefore guilty of culpable homicide.

In S v Sataardien 1998 (1) SACR 637 (C) the accused was charged with murder. He raised the defence of putative self-defence. The deceased assaulted the accused and, thereafter, threatened to kill him and the accused under the impression that the deceased was reaching for his firearm, drew his own firearm and shot in the direction of the deceased’s hand. This shot was fatal.

The Western Cape Division, Cape Town held that: ‘One had to regard the accused’s state of mind subjectively and the court had to place itself, as far as possible, in the position of the accused at the time of the events’.

The court further held that insofar as culpable homicide was the negligent cause of death, an objective reasonableness test applied in such a case: Did the accused reasonably believe that he was in a situation that warranted private defence, and was the act of retortion performed by him reasonable under the circumstances? In determining these questions the court had to avoid being an ‘armchair critic’. It was held that the accused had honestly believed that his life was in danger and accordingly had not had the intention to kill the deceased and further that the accused had acted reasonably under the circumstances and had thus also not caused the death of the deceased in a negligent manner.

In S v Dougherty 2003 (4) SA 229 (W), the Gauteng Local Division, Johannesburg held that if an accused person honestly but erroneously believed that his or her conduct in killing another was justified then dolus was excluded. The court further held that the legal position could be understood with greater clarity once one accepted that the Latin word ‘dolus’ did not mean simply ‘intention’ but meant ‘evil intent’ or something analogous thereto. The state of mind relevant to a determination of dolus must not, of course be confused with motive. The court held that the test for justification, although objective (and even taking into account the qualifications, in particular the subjective situation in which an accused person finds himself or herself) had to be a high one. The appellant had shot and killed the deceased and injured another in circumstances where he had been afraid for his life. Objectively viewed, it had not been necessary for the appellant to have inflicted the injuries in question in order to protect his life. He acted unreasonably in shooting at the deceased as he had done. The deceased was unarmed at the time and clad only in shorts. While the court should not adopt an ‘armchair view’ the objective test was measured against the standard of a reasonable person. A reasonable person in the situation in which the appellant had found himself would not have fired the volley of shots, but would have aimed a non-fatal shot or shots to bring his suspected attackers down and would have aimed with an intention to kill only if it had become clear that he, the appellant, had not shot to kill he would probably have been killed himself. It was held that the appellant should have been found guilty only of culpable homicide.

The SCA has spoken

In S v Joshua 2003 (1) SACR 1 (SCA) the court held that the appellant who had been convicted of several counts of murder and attempted murder, had shot at certain of the deceased and the complainant in one of the attempted murder charges, while they did not objectively pose a threat to him, but while he thought he was in danger of an imminent attack from them. It was held that at worst for the appellant he should have been convicted of culpable homicide on the murder counts. He had believed erroneously that he was still in danger of being attacked by them and that he accordingly had been entitled to retaliate, when in fact they were turning or had turned sideways, probably in an endeavour to escape. His erroneous belief that his life had been in danger excluded dolus.

In Coetzee v Fourie and Another 2004 (6) SA 485 (SCA) the first respondent and his father, the second respondent, proceeded against the appellant for damages allegedly suffered as a result of a shooting. It was held that the appellant had shot the first respondent believing his life to be in danger, but that none of the facts taken alone or cumulatively necessarily indicated that the appellant had been in danger of an imminent attack. If the appellant had felt threatened the circumstances required at least a warning to be given by the appellant that he felt under threat before he was justified in shooting the first respondent. A firearm was a potentially lethal weapon, which should be discharged in the direction of a person only as a last resort. The appellant was found to be negligent in the circumstances.


It would appear that a successful reliance on the defence of putative self-defence is largely dependent on the facts of each case and the belief of the accused viewed subjectively at the time of the commission of the offence.

Sherika Maharaj LLB (Unisa) is an attorney at the East London Justice Centre.

This article was first published in De Rebus in 2015 (Aug) DR 34.