Private defence for fathers and mothers

Posted: May 19, 2017 in Uncategorized

There is something about the nature of private defence that is perhaps necessary for us, as fathers and mothers to be reminded of – given the current state of lawlessness and this risks our children face. 

Private defence is available when “public defence” is unavailable. This follows quite straightforwardly form the underlying basis for private defence: the social contract. Under the social contract, private citizens have given up their rights – in favour of the state – to the use of force to protect their rights, or to endure that justice is done when rights have been infringed. It follows that when the state is unavailable to protect rights, the individual citizen may take the law (back) into his/her own hands.

One must be careful to construe this right to take the law back into one’s own hands. In order to give expression to this right, the law has set strict requirements for when this may be done, and has limited the extent of force that may be resorted to.

The requirements are as follows:

There must be a commended or imminent unlawful attack upon a legally protected right. All rights are recognised, including the right to dignity and the right to property. However, the extent of force used will be restricted according to the objective value of the interest in question. As far as property is concerned, as our law stands (S v Van Wyk 1967 AD), one may resort to the use of force to defend one’s property, but the right is limited according to the value of the property. This is controversial and we may expect that the Constitutional Court may restrict this right even further. My sense is that the Constitutional Court may restrict the right to use force in protection of property to the protection of property required to support other rights in the bill of rights, such as shelter, life, and to work.

If these requirements are satusfied, then a person (any person – as will be discussed below) may resort to the use of force – limited as follows:

The force must be directed at the person infringing the right or rights in question. It must be necessary to resort to force to end the attack. Then, finally – and crucially, it must be reasonably, given all the circumstances. This requires an all encompassing inquiry that takes account of the nature of the attack, the nature of the interests infringed or imminently to be infringed, the time of day, the relative strengths of the victim and attacker. You may not use lethal force to take back a sweet from a bully, even if that would be the only way to retrieve the sweet. Equally, you cannot kill someone for slapping you. But if your life or body integrity is at risk, you may kill the attacker.

Now, what if someone kidnaps your 13 years old daughter and the police refuse or fail to assist in freeing her form the kidnappers – even where they know whether she is being held. In my view, this would give rise to the right to the use of force to vindicate the rights infringed.

I have alluded to the fact that one may act on behalf of another. This is so because of the nature of private defence. It’s is what is known as a ground of justification. When one acts in private defence, your conduct is justified and, in effect, the right thing to do. As such, it is universal – anyone may act where there is a ground of justification because anyone may act in private defence. Anyone may act in private defence because doing so is the right thing to do.

I am a father. I am not in favour of vigilantelism. But if someone took one of my daughters, I am guessing, but I expect the police will need to arrest me first.

I hope that I am able to exercise self control in the circumstances though, and that I do the right thing – to go to the police and ask for help. But if they fail to help – and if I knew where my daughter was being held, I believe that the law would permit me to do what is necessary to free her.

I expect that I would do so, and in doing so, I would hope that all other fathers and mothers would join me in retrieving my daughter and I believe we should all do so when one of our daughters is taken. For what it’s worth, I’d be there.

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