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Monday, July 26, 2010

Rex v Zikalala [1953] 2 All SA 224 (A)

Case looks into the requirement to find non-violent, or where the life is not threatened, non-deadly means when necessary, in order to avoid taking a life, however, the risk of being stabbed in the back, of being killed by the aggressor, means that at times such as where grievous bodily harm such as in risk to life is risked, and killing an assailant will suffice, it is acceptable to kill to protect one's own life, even if there is a small chance of escaping an armed assailant. The appellate division notes that the chances of escape otherwise would involve jumping over other patrons heads, and that Zikalala would be at risk of falling if he attempted to flee, while he had a chance of a non-violent escape, it was not a good one. Further, having failed to kill him the time 5 days before, the aggressor, with his gang who were armed with knives said in Afrikaans: You Dog, you still aren't dead, before stabbing at the defender. Zikalala was convicted, and the conviction set aside on appeal, in that the Crown failed to prove that his defence of Private (sometimes called colloquially Self) defence did not stand. Zikalala knew his assailant had attempted to kill him before, and that his life was in imminent danger, and that his only viable means were deadly force, as he was unable to flee with satisfaction of safety.

However, the court in making this decision, stresses that danger to his life was imminent, and in the case of risk to life, such as a stab to the back risked- it quotes a law book, it is acceptable to kill an assailant, rather than take any great risk to life, where it is not a viable option to flee. It is not proved that Zikalala beyond reasonable doubt, had not committed the killing out of self defence. The court saw deadly danger as imminent. This case does not challenge the doctrine of the lesser evil/proportionate force/proportionality, but reinforces it, relying on danger to life to uphold a defence of private defence. It is only acceptable to take a life, if one's life is endangered, in the case of an attack against one's person.

The judge's claim that "natives" blacks would not interfere to save Zikalala's life, seeing it as a private matter, however may be subject to question, as this was a case decided before the 1996 Constitutional reforms. Ziklala says the Appellate Division, should not have been demanded to act on a reasonable chance to escape, but was lawful or not proved unlawful in his stabbing of the deceased.

The case refers to danger to life and limb as different from cases of theft: note the and, it is not an or. Only where the life is in danger may a life be taken. Otherwise one is speaking of a defence other than private defence, such as putative private defence.

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