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27-05-2015, 14:31 #21
Re: Self defence and the use of lethal force in effecting an arrest
Ex Parte Minister van Justisie, in re: S v Van Wyk. Shotgun, not machete.
It's trite law that you may use force to defend an attack on property rights. The questions is how much force is too much, if any.Sent electronically, thus not signed.
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27-05-2015, 15:11 #22
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Re: Self defence and the use of lethal force in effecting an arrest
Thank you Mr Hood.
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27-05-2015, 17:36 #23
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I was thinking about S v Mogohlwane, where the court looked at the fact that the danger had not ended despite the defendant running 350m to retrieve a knife and after trying to snatch back the property fatality stabbed the deceased.
I know that the court looks as to whether the force exerted was excessive, but I was wondering how this is determined?
BG breaks into your house and starts stealing your stuff, you come home to this and he reaches for something in waistline (you assume GUN!) And shoot him, would you have used excessive force in the eyes of the courts?
Assuming he was in fact armed but did not draw before he was dead?
Also given the prevelance of violent home invasions could one rely on a reasonable presumption that the BG is likely armed and dangerous?
Sorry I know that private defence can be exceptionally technical, I just read this and wanted to clarify things before anything happens
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27-05-2015, 21:35 #24
Re: Self defence and the use of lethal force in effecting an arrest
Was Mogohlwane not about contra-spolie?
Sent electronically, thus not signed.
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28-05-2015, 09:39 #25
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Re: Self defence and the use of lethal force in effecting an arrest
I don't believe it to be, I cannot say definitively whether it is or isn't.
In the Van Wyk case the court held that if a thief does not make off with property you may not use private defence as there is no immediate danger, in Mogohlwane the court defined when a victim can no longer physically attack the thief, the court held that you do not have to simply let the robbery happen. It also helped that the deceased had not left the scene of crime so the attack was still seen to be ongoing.
So I think I can kind of answered my own question, just looking to see if I got the correct answer
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