Retaliation Against a Thief: How Far is too Far?

In a recent case which grabbed newspaper headlines all around the country, a female resident of Durban was lauded for “heroically” driving her vehicle over a thief who had snatched personal effects from her car. Whilst people the country over applauded her for this action, some started asking the question: how far can one actually go in defence of one’s property (and/or life)? What are the potential criminal ramifications of taking these type of steps in situations where your property or life is threatened?

At the outset, it must be noted that the act of intentionally “slamming” a car into another person may amount to the crime of common law assault, assault with the intent to cause grievous bodily harm, or even more seriously, attempted murder. There are also other offences that could have been committed during this act – such as malicious damage to property where the woman in question drove through and broke the shopping centres security boom. That said, in the circumstances under consideration, there are certain notable legal defences which could potentially be raised in the defence of these crimes: namely private defence and the defence of necessity. The question however is how far do these defences allow one to go?

Private defence (commonly known as self-defence) may be applicable where the person who is the victim of an unlawful attack upon his person or property resorts to force to repel the attack. Any harm inflicted upon an aggressor in such circumstances is not unlawful, however, consideration must be given to whether the extent of the private defence is equitable to the harm or potential harm that stood to be suffered.

The defence of necessity similarly excuses a criminal act, specifically where an individual commits such an act during an emergency situation in order to prevent a greater harm from happening. In order for the defence of necessity to succeed, the person must reasonably have believed that there was an actual and specific threat that required immediate action, the person must have had no realistic alternative to completing the criminal act, the harm caused by the criminal act must not be greater than the harm avoided and the person must not herself have contributed to or caused the threat.

In the context of the present facts, it could be argued that by the time the person drove over the aggressor, the level of threat faced by her had already been reduced as the aggressor had already left the area and was fleeing the scene. Accordingly, it could be argued that the act in question may have amounted more to an act of retaliation (which is not protected under the laws of private defence) and further that the actions taken by her exceeded the level of potential harm faced by her. The defence of necessity would also be unlikely to succeed, particularly given that no additional or excessive harm was prevented by her act in retaliation.

With the above facts and law in mind, it is of paramount importance to note the well-established principle that a person may not take the law into his or her own hands. Persons who are aggrieved by the conduct of another ought to follow the proper procedure to obtain the necessary redress and relief or potentially face the wrath of the law.

Written by Zamathombeni Magagula

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This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjwattorneys.co.za directly for advice applicable to your specific matter.