Ex Parte Die Minister Van Justisie Case Study
In the case of Ex parte die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) the defendant successfully pleaded private defence where upon the minister put forth the following question: could a person ever be justified in using lethal force to protect their property? The court decided unanimously in the affirmative with judge Steyn stating that “if the use of necessary force is justified ... then it is not clear to me why deadly force must be excluded from that principal…proportionally will not do as a general basis for private defence” .
This judgment was passed 40 years before the constitution of the republic of South Africa was instituted, the constitution makes provisions for several fundamental rights which include the right …show more content…
Section ii, will examine the constitutionally of the judgment as well as relevant sections of the constitution. Section iii, will examine case law on the subject of private defence in regards to property taking into consideration South African and international case law. Section IV, will look at academic literature on the issue of private defence and human life. the defendant in the case of Ex parte die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) successfully plead private defence after the defendant who had been a shopkeeper had been the victim of numerous break-ins in desperation since none of his previous attempts to curb the break-ins had been successful setup a spring gun in his shop with the prior knowledge and consent of the police and warnings around the shop stating any intruder would be shot. Ignoring the warnings an intruder eventually broke in and consequently received a fatal wound.
As mentioned above the court held that in the right set of circumstances it was permissible to use deadly force to protect your …show more content…
The requirements to be satisfied in order to plead this defence is as follows, the attack must be: imminent, against a legally protected right and unlawful. The defence needs to be: necessary to stop the attack, reasonable and directed against the attacker.
The constitutional grounds for private defence is set out in s v makwanyane where it was stated that if a choice has to be made between the lives of two or more people, the life of the innocent takes precedence over that of the guilty.
The question now arises whether the right to protect ones property is a justifiable limitation on the right to life entrenched in the constitution. The limitation clause states a right may only be limited to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom . In the more recent case of S v Walters Kriegler J stated “what is important is that the law applies a proportionality test weighing up the interest protected against the interest of the wrongdoer”.
Applying these tests as stated above, the right to life would be weighed up against the right to life, it is doubtful whether any court would reasonably find it justifiable to limit the right to life in order to protect the right to
This judgment was passed 40 years before the constitution of the republic of South Africa was instituted, the constitution makes provisions for several fundamental rights which include the right …show more content…
Section ii, will examine the constitutionally of the judgment as well as relevant sections of the constitution. Section iii, will examine case law on the subject of private defence in regards to property taking into consideration South African and international case law. Section IV, will look at academic literature on the issue of private defence and human life. the defendant in the case of Ex parte die Minister van Justisie: In re S v Van Wyk 1967 1 SA 488 (A) successfully plead private defence after the defendant who had been a shopkeeper had been the victim of numerous break-ins in desperation since none of his previous attempts to curb the break-ins had been successful setup a spring gun in his shop with the prior knowledge and consent of the police and warnings around the shop stating any intruder would be shot. Ignoring the warnings an intruder eventually broke in and consequently received a fatal wound.
As mentioned above the court held that in the right set of circumstances it was permissible to use deadly force to protect your …show more content…
The requirements to be satisfied in order to plead this defence is as follows, the attack must be: imminent, against a legally protected right and unlawful. The defence needs to be: necessary to stop the attack, reasonable and directed against the attacker.
The constitutional grounds for private defence is set out in s v makwanyane where it was stated that if a choice has to be made between the lives of two or more people, the life of the innocent takes precedence over that of the guilty.
The question now arises whether the right to protect ones property is a justifiable limitation on the right to life entrenched in the constitution. The limitation clause states a right may only be limited to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom . In the more recent case of S v Walters Kriegler J stated “what is important is that the law applies a proportionality test weighing up the interest protected against the interest of the wrongdoer”.
Applying these tests as stated above, the right to life would be weighed up against the right to life, it is doubtful whether any court would reasonably find it justifiable to limit the right to life in order to protect the right to