Unlawfulness

As a requirement, it is means to act contrary to the law. There are a number of cases whereby an act, which corresponds to the defining elements, is nevertheless regarded as unlawful. Unlawfulness is excluded because of the presence of grounds of justification. Some well-known grounds of justification are private defence, necessity, and official capacity. The result at which Ps action was aimed was using intentionally violence or threat of violence to induce submission to taking property. This actually caused grievous bodily harm to S, the Security guard who was on duty to deliver the payroll to the company. As a rule, there should be a recognized ground of justification to render an act lawful. However, Ps action was unlawful, intentional and a violent removal and appropriation of moveable, corporeal property belonging to another, consequently there is no ground for justification and the act is therefore unlawful. When According the Arms and Ammunition Act 1 any person who wilfully points any arm or air rifle, shall be guilty of an offence By driving towards S, after S having shot him, P exceeds the limits of private defence, because he caused S more injury than is justified by S shooting him in the shoulder. By law, an assaulted person is to flee father than assault his/her assailant, unless such an escape would be dangerous. S actions comply with the definitional elements of assault towards P. As a ground of justification S was acting in private defence as the companys payroll was under the threat of being unlawfully removed by P, thus it was S duty to use reasonable force in order to protect and recover the companys property. Thus, S actions are not unlawful and therefore she cannot be found guilty of assault despite the fact that her actions comply with the definitional elements of the crime of assault. S actions are justified by the ground of justification known as official capacity. One may rely upon the defence of the public or statutory authority use of lethal or non-lethal force. Permissible deadly or non-deadly force is governed by the Criminal Procedure Act 51 of 19772, S shooting P in the arm would be in line with the above mentioned act, as she used non deadly force as it was reasonably unlikely to cause any death or serious injury to P. S actions of acting in private defence are lawful, because her conduct complies with the requirements of private defence and she did not exceed its limits. It was held in Ex parte die Minister van Justisie in re: S v Van Wyk3 that a person may in extreme circumstances rely on private defence even if he kills another in protecting property.

1 2

Section 38 (i) of the Arms and Ammunition Act, 1996 Section 49 of the Criminal Procedure Act 51 of 1977 3 Ex parte die Minister van Justisie in re: S v Van Wyk 1967 (1) SA 488 (A)