Summary
This article examines the constitutionality of the common-law rule that one person
may kill another in defence of property. This rule is mostly associated with Ex parte
Minister van Justisie: In re: S v Van Wyk. The authors draw a clear distinction between
the use of violence (including homicide) in defence of life and limb, on the one hand,
and in defence of property, on the other. Most decided cases illustrate the close link
between the private defence of defending life and of protecting property. The
Constitutional Court recently declared unconstitutional s 49(2) of the Criminal
Procedure Act (allowing blameless killing to effect arrest). No court has yet
pronounced on the Van Wyk rule. Authors differ about its constitutionality. In this
article, following the two-phased approach to constitutional interpretation, the
authors conclude that the rule is unconstitutional: The serious limitation of rights
which the rule causes is not justifiable in terms of s 36 of the Constitution.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:tut/oai:encore.tut.ac.za:d1001861 |
| Date | 01 January 2003 |
| Creators | Ally, D, Viljoen, F |
| Publisher | South African Crminal Justice |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Text |
| Format | |
| Rights | South African Criminal Justice |
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