Importance Of Necessity In Criminal Law

1 INTRODUCTION

Necessity is a defence available in criminal law, which arises when a person is confronted with a choice between suffering some evil and breaking the law to avoid it, chooses the latter alternative. This type of defence is said to be a successful defence in all types of crimes including murder. This would then imply that one life is more valuable than another. Hence, this raises the question as to whether necessity infringes on the victim’s constitutional right to life and right to equality, found in Chapter 2 of the Constitution of the Republic of South Africa, 1996 (the Constitution.) This paper will discuss how necessity could infringe on said rights found in the Constitution but also how necessity could be justified or not in certain situations as seen in different court cases and various academic literatures.

2 CONSTITUTIONAL INFRINGEMENTS

The Bill of Rights in the Constitution houses the fundamental human rights each citizen of the country enjoys. The right to life and the right to equality are especially relevant to the case of necessity because these are infringed if a person is successful with the defence of necessity, especially in

It is argued here that necessity is not accepted because no case has out-ruled Dudley & Stephens. However, when necessity is defined by the law it does not exclude murder from being able to claim necessity as a defence. This causes a problem because people will, from their own accord, decide whether the situation they are in justifies them claiming necessity as a defence after their act. If necessity is not accepted for a murder then it should be clearly stated in legislation. If the law is vague, then it allows for innocent people to be killed because the killer believed that necessity could be their defence. Fundamental human rights are infringed because the law leaves the decision of necessity being successful to the discretion of the