The Defence Of Ignorance Of The Law

Introduction

The defence of ignorance of the law exists in the South African legal system as a result of S v De Blom (‘De Blom’). In the case, the court did away with the maxims of “ignorance of the law is no excuse” and “everybody is presumed to know the law” completely. Thus, a new legal precedent that ignorance of the law was to be accepted as a defence excluding the element of fault was created. There is a great deal of debate as to whether the defence should exist as it was established by the court in De Blom or if it should be modified to be judged objectively and include a standard of reasonableness. This research aims to analyse this debate and determine whether or not the defence of ignorance of the law is in line with South African

However, several legal authors are of the opinion that the scope of the defence is two wide as it includes both reasonable and unreasonable ignorance in the case of crimes requiring intent. They argue that the defence is not in line with Roman-Dutch law, which only recognised the defence if the ignorance was unavoidable, or the legal systems of comparable Western countries. Snyman also argues that the approach taken by the court in De Blom is outdated as it is based on a German legal theory which was done away with in Germany and replaced with a more normative legal theory. There are fears that the defence will lead to a disintegration of the criminal justice system as it is claimed that each man is judged according to his own standard, and not a universal standard, when a subjective test is used. It is argued that courts will not be able to determine when an accused’s ignorance is bona fide which will result in people who are actually guilty being able to escape liability and subsequently an exacerbation of crime. Further, it is thought that the defence will cause people not to acquaint themselves with the law. Many of these criticisms can, however, be rebutted. The idea that the defence should be done away with simply because it

The cases of S v Nel and Another and S v Bezuidenhout , in which two policemen discharged their firearms wrongfully and an accused filled out an application for a firearm wrongfully respectively, both indicate that courts have not found it difficult to infer whether or not an accused’s ignorance was bona fide based on the surrounding circumstances. Thus, the fear that many critics of the defence held, namely that it would be impossible for the court to determine whether or not the accused was being truthful about their ignorance has been shown to have no standing in practise. S v Russel and S v Du Toit , in which the accused distributed anti-apartheid pamphlets and contravened regulations on the transport of fuel respectively, both indicate the scope of the defence with regards to crimes which require negligence. These cases indicate that a standard of reasonableness is still applicable when an accused raises the defence of ignorance if the crime in question required culpa. Thus, an accused who acts unreasonably will not have an easy defence available to them as accused who commit crimes which criminalise conduct that is wrongful even if it is done without intent would still be culpable if their ignorance was not reasonable. It can be argued that the defence will not lead to an