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Defence Of Necessity Essay

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TOPIC 7
THE DEFENCE OF NECESSITY OR COMPLUSION

1 Introduction

South African “criminal law is a branch of national law that defines certain forms of human conduct as crimes”. The criminal law defence of necessity or compulsion is available and arises when a person is confronted with a situation where they choose a course of action that breaks the law in order to avoid “suffering some evil”. Regardless of whether it is “brought about by the force of surrounding circumstances” or if the person was acting out of their human independent free will. “The Law is the same in both instances”. The defence is considered as a general defence to all crimes, where it be a common-law crime or a contradiction with a statutory provision.
Necessity or compulsion …show more content…

Initially in Director of Public Prosecutions for Northern Ireland v Lynch the House of Lords held that a complete defence for killing under compulsion would be afforded if there was clearly duress and that there was evidence to support the claim of compulsion. Not long after it was made clear that this principle was made available to those charge of murder in the second degree, but “the defence of duress was not open to a principle in the first degree”. Years later the House of Lords in R v Howe withdrew the project of the defence of everyone charged with murder due to compulsion, regardless of whether in the first or second degree. Lord Hailsham LC makes specific reference to the S v Goliath case whereby he disagrees with the Rumpff JA’s judgement that “in general that ordinary man’s life is more valuable to him than that of another and that criminal law should not lay down a blueprint for saintliness”. This exclusion of compulsion as a defence for murder has enough support for a re-evaluation and English law has been developing since at it is ‘irresistible’ to allow this defence in the direction of a complete defence. Nonetheless the English approach in unattractive to be regarded as a solution for South African criminal

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