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Sunday, July 25, 2010

Challenging James Grant's Double Life of unlawfulness: fact and law

Location of note: Gauteng, South Africa
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Note by Marc Aupiais

One of the legal opinions I have had to read as part of our course lately is that of James Grant, course co-ordinator here at the University of the Witwatersrand, Johannesburg. I personally disagree with his view on the S v Engelbrecht 2005 (2) SACR 41 (W) case.

I think firstly, the court made the correct decision, in sentencing the battered woman for murder, given that only a novel plea, and that of private defence were raised, and secondly that the Assessors, did in fact stick to questions of fact in the case, and not those of law. I may well be wrong in this opinion, and I certainly invite debate, this is after all a blog I created to listen as much as to speak. here is my argument.

Now Mr grant says that it is a question of law, where facts would give rise to a conviction, basing this on the state's right to appeal, as shown in many cases: whereby the state can appeal on a question of law. Thereby, allowing for the development of this given concept, that of a legal question verses that of a factual question.

Noting the decision is Basson, whereby the Supreme Court of Appeal said that it was a question of fact whether a judge should recuse himself, and the state thus appealed to the constitutional court, Mr grant notes: that Ackerman J, says that it is only a question of law where it relates to the standard of law applicable, and only then, and not when dealing with the application of the actual law.

Grant quotes the CC which says that it is legal question which applies first in relation to recusal cases: in that the standard of the reasonable person must be determined by the judge, before the test as regards whether the judge lived up to this, a factual question. He goes on to quote the CC on negligence cases (culpa), where it then says that the SCA seemingly erred in the case, whereby recusal was in fact a question of law. When dealing with reasonable person test.

Grant then says that this implies that the same is true for the reasonableness required in the case of wrongfulness. In private defence, reasonableness comes into play as regards whether or not it is reasonable to defend one's interests by force, and what degree of force is reasonable.

He then cites Goliath, I assume: S v Goliath 1972 (3) SA 1 (A), which deals with not private defence, but the argument of necessity, via compulsion, in order to justify that it is a question of law, whether conduct would be lawful. Relating to what could be expected of the ordinary reasonable person (I might note that while Goliath was let off on the murder, Mandela, in a lower court, but later case, was found guilty). None the less, what is required of the reasonable person, Grant correctly states, is a legal question, and not a factual question.

Mr Grant then looks into Kader, to reference the judge in saying that questions of law do not extend to how the standards of law are applied, but only to the standard, the rule to be used.

Where I start to disagree with him, is where he says that it is a legal question whether a set of facts should lead logically to a conviction, the normative process of the reasonable person test. I disagree, in that he says assessors may only look at questions of fact, not questions of law. He also notes as noted above that application is a factual question. I would say it is however a legal question whether a standard of facts leads to a conviction, but there would be no purpose in any assessors, if we were to say that the normative process belongs solely to the judge. i would say it applies to him as far as setting out the rule and the standard to be used, but not so far as applying them to the individual facts, a factual exercise.

S v Engelbrecht 2005 (2) SACR 41 (W), Mr Grant notes, is a case where the woman was seemingly stalked, abused physically, sexually, financially etc by her husband. She placed a plastic bag over his head having secured his hands, and suffocated her husband, with part of a dressing gown, having given up on the authorities, and taken the law into her own hand. She had previously approached the police and attempted divorce, and had left and returned to the relationship several times. They had a small child together during the marriage.

Already, I question Mr Grant's assertion that the case was decided wrongly. Private defence of person is subject to reasonableness in the response, but also to the lesser evil test, proportionality. It is not lawful to kill a person who will only harm you. Mere physical or psychological harm is not adequate cause to kill. Harm must, as noted be imminent or commenced. But what type of harm is imminent or commenced? The court decided that it was inevitable that the woman would be hurt again, whether right or wrong, and that force would be required to protect herself, as she could not rely on the authorities, or expensive legal procedures, or be expected to leave her home or job. What I disagree on is whether deadly force was acceptable. After all, the harm the deceased would have done was inevitable and terrible, and shameful, but it was not imminently threatening the battered woman's life. Therefore, she had every right to restrain him with ordinary force, but I would say that deadly force was excessive, and unreasonable, even if it appeared reasonable to her: we are not speaking of subjective negligence, but objective lawfulness. Now the court says that inevitable extends to imminence in this case, and Grant says that the assessors must that obey the judge by viewing this as a question of law which binds them. I agree with Grant here. Grant says that the assessor who questions how reasonable it is to say that the violence was imminent, was out of his jurisdiction. but I would say that one may simply draw this back, to whether or not the violence was inevitable, that imminence comes from inevitableness in this judge's legal question may be bound, but whether an attack was inevitable I would see as a question of fact, of application.

Grant then says that it is a question of law whether the battered woman should have given the state a fair chance in protecting her, and that the assessors, who were the majority should have not assessed this as a factual question, but simply agreed with the judge, as he says that the normative process of judging whether the accused is guilty of being unreasonable is one which only the judge may decide. He goes on to say that when life or limb are threatened it is trite that deadly force may be used. Perhaps I was taught wrongly on this matter, but I understood that only where life and not merely limb (R v K [1956] 3 All SA 324 (A) ; REX v ZIKALALA [1953] 2 All SA 224 (A) : that is to say that the injury threatened must be grievious) was threatened, may deadly force be used. The assessors say that the accused had other options, and that the violence was thus not needed to avoid the harm. She was convicted of the murder and did not appeal.

My conclusion is that Mr Grant is wrong, in saying that deadly force is acceptable to prevent future non-deadly abuse. I also believe him incorrect in stating that applying the reasonable person test (a question of legal standards) to the facts is a question of law, I would say it is a question of fact, as demonstrated by his own quotation above. Whether the attack was imminent or not depended on whether it was inevitable or not, whether it was inevitable or not, should force not be used, was a question of fact. the assessors said it was not imminent, and therefore, decided on that, that the woman was unreasonable. I believe thus that Mr grant is incorrect in his portrayal of the difference between factual and legal questions. A judge can set the standard as a legal question, but it is a factual question whether or not the accused lived p to that standard.


Please note, this essay does not constitute legal advice.


Reference is made to a journal article by an academic from the University a.k.a. Wits:

this is: in the SACJ 2007 (1) pages 1 - 16

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