necessity

A person acts out of necessity - and her conduct is therefore lawful - if she acts in the protection of her own or somebody else's life, physical integrity, property or other legally recognised interest which is endangered by a threat of harm which has already begun or is immediately threatening and which cannot be averted in any other way; provided that the person who relies on the necessity is not legally compelled to endure the danger, and the interest protected by the act of defence is not out of proportion to the interest threatened by such an act.

Although this definition does not cover every aspect of this ground of justification, it does contain the most important elements.

Private defence and necessity distinguished

The two grounds of justification known as necessity and private defence are

closely related. In both cases the perpetrator (X in the examples which follow)

protects interests which are of value to her, such as life, physical integrity and

property, against threatening danger. The distinctions between these two

grounds of justification are the following:

(1) the origin of the situation of emergency: Private defence always stems from an unlawful (and therefore human) attack; necessity, on the other hand, may stem either from an unlawful human act, or from chance circumstances, such as natural occurrences.

(2) the object at which the act of defence is directed: Private defence is always directed at an unlawful human attack; necessity is directed at either the interests of another innocent third party or merely amounts to a violation of a legal provision. The following are examples of situations in which X's conduct is justified because she is acting in a situation of necessity:

(1) While X is in Y's backyard, Z attacks her (X) with a knife. X finds herself

unable to ward off the attack, because she (X) is slightly built and unarmed

whereas Z is strong and armed with a knife. There is one possible way to

escape, and that is to kick a part of the fence (which belongs to Y) to pieces

and then run away through the broken fence. This is exactly what X then

does. If X is subsequently charged with malicious injury to property in that

she broke a fence belonging to Y, she can successfully rely on the defence of

necessity. In this example, the emergency situation arose from an unlawful

act, but the act of defence is directed not against the attacker, but against the

interests of an innocent third party, namely Y.

(2) The facts of Goliath 1972 (3) SA 1 (A) are as follows: Z orders X to kill Y, and

threatens to kill X if she does not carry out the order. There are no means of

escape for X, and she kills Y. X was found not guilty. This type of situation is

known as ``compulsion'' or ``coercion''.

(3) The ship on which X is a passenger sinks during a gale. X ends up in the ocean, clinging to a piece of driftwood. Another former passenger, Y, clings to the same piece of wood. However, the two of them are too heavy to be kept afloat by the wood. X pushes Y into the ocean in order to save her own life. Here the reason for the emergency was an act of nature and the act of defence was directed against an innocent person.

(4) The facts in Pretorius 1975 (2) SA 85 (SWA) are as follows: X's baby swallows

an overdose of Disprin tablets. X rushes the child to the hospital by car for

emergency treatment. While driving to the hospital, he exceeds the speed

limit. On a charge of exceeding the speed limit he relies successfully on the

defence of necessity. Here, strictly speaking, the reason for the situation of

emergency was a series of chance circumstances; the act committed out of

necessity was directed not against some person's interests, but amounted

merely to a violation of a legal provision, namely the prohibition on speeding.

If X acts in a situation of necessity, she acts lawfully.

Absolute and relative compulsion

In the case of absolute compulsion (vis absoluta), X does not commit a voluntary act: for example, Z, who is much stronger than X, grabs X's hand which is holding a knife, and stabs Y. The reason for X's non-liability is then not necessity, but the absence of an act (as this term is understood in law).

In the case of relative compulsion (vis compulsiva) there is indeed a voluntary action the part of X: Y threatens to kill X if X does not kill Z. In this case, X is free to choose to be killed herself. Only cases of relative compulsion may amount to situations of necessity.

Requirements for a plea of necessity

(1) legal interest threatened

(2) may also protect another

(3) emergency already begun but not yet terminated

(4) may rely on necessity even if personally responsible for emergency

(5) not legally compelled to endure danger

(6) only way to avert danger

(7) conscious of fact that emergency exists

(8) not more harm caused than necessary

(these requirements are explained into detail in your books)

Killing another person out of necessity

Possibly the most perplexing question relating to necessity as a ground of justification is whether a threatened person may kill another in order to escape from the situation of emergency. Naturally, this question arises only if the threatened person finds herself in mortal danger. This mortal danger may stem from compulsion, for example where Y threatens to kill X if X does not kill Z, or from an event not occasioned by human intervention, for example where two shipwrecked persons vie for control of a wooden beam which can keep only one of them afloat and one of them eventually pushes the other away in an attempt to survive.

Until 1972, our courts usually held that the killing of a person could not be justified by necessity (Werner 1947 (2) SA 828 (A); Mneke 1961 (2) SA 240 (N) 243;Bradbury 1967 (1) SA 387 (A) 399). Goliath 1972 (3) SA 1 (A),

 

The test to determine necessity is objective

The question whether X's acts fell within the limits of the defence of necessity must be considered objectively, that is in the light of the actual facts, and not according to what X (at the time) took the facts to be. If she is not actually (that is objectively) in such a situation, but merely thinks that she is, she cannot rely on necessity as a justification. If she merely thinks that she is acting out of necessity and, while thus mistaken, directs her action against another person's interests, her action remains unlawful, but she may escape liability because she lacks culpability.

This will become clear in the course of the discussion of culpability further on, more particularly in the discussion of the effect of mistake and of awareness of unlawfulness. Such a situation may be described as putative necessity.