Giba Gorge Attack

[HappyMartin]

Hmmm. That's a lot to remember and go through when in a situation where your life is being threatened.

[Harryn]

Hmmm. That's a lot to remember and go through when in a situation where your life is being threatened.

  Now that is a VERY valid observation. Which is why the judge is required to put himself / herself  into the position of the accused at the time - and not to dispense armchair justice. 

[DIPSLICK]

Going on the legal requirements as laid out above, I stick to my original post.

We don't know all the facts, and I hope the cyclist has a decent lawyer.

Again WITHOUT KNOWING anything but what the articles said I am concerned about the requirements of #5

 

Has there been any new developments, Afro style hair gets the country GOING FULL CRAZY MODE,,,,STRANGE TIMES I SAY

 

And Harry,, the question was asked you have laid out the legal requirements?

Some wise old creature said don't ask questions if you not ready for the answers.

[V12man]

Hmmm. That's a lot to remember and go through when in a situation where your life is being threatened.

if your life is being threatened you can defend yourself until the attack stops- but you cannot chase after the perpetrator and continue the "defence" when they are running away.

 

Also remember that if you do decide to defend yourself then you had better win - criminals are accustomed to violence and trust me - most office bound workers are not, and don't understand there are NO rules to the fight -.it's not going to be a school yard scrap- you might die...

 

Statistically- running away is the safest option - please don't think going hunting for the criminal in your garden is a good idea - it's not.

[DIPSLICK]

if your life is being threatened you can defend yourself until the attack stops- but you cannot chase after the perpetrator and continue the "defence" when they are running away.

Also remember that if you do decide to defend yourself then you had better win - criminals are accustomed to violence and trust me - most office bound workers are not, and don't understand there are NO rules to the fight -.it's not going to be a school yard scrap- you might die...

Statistically- running away is the safest option - please don't think going hunting for the criminal in your garden is a good idea - it's not.

I will unashamedly say when a guy took a swing at me with a panga, I put the "watts" down and peddled like a BIATCH outta there,,, if I'm in a corner and can't get away trust me my pienk nail polish will do the talking until that point I am outta there, off to make more money to pay for the insurance to replace the bike, and kiss my babs to sleep and gently lay myself down on the man bed(couch) and live to fight another day,,, maybe I'm getting old but in my minds eye it's not my bike if you pull a gun or a knife,,,it's a case of "this bike??? This is not my bike,,,,this is YOUR BIKE"

 

 

Edit: yes I know sometimes they don't ask or don't care I'm just saying, I'll make every effort to get the vaaaaark outta there

Edited September 5, 2016 by DIPSLICK

[NicoBoshoff]

 

use of deadly force to protect property is highly controversial and problematic. The right to life is constitutionally protected - so I would say that it not reasonable or proportionate to kill a thief to protect your ownership in your bike and your IPhone, if your life is not at imminent risk.

 

5.[/size][/i]

You do realise this is the very pillar that private property rests on - the ability to protect one's ownership from unlawful interference by others, alternatively demand protection thereof by the state? So pray tell, should the police, faced with cash in transit robbers, home invaders, hijackers just blow their whistles really loudly and hope the criminals will pay heed and stop? What would a proportionate reaction be to a forceful taking of my possessions? Should I hope the guy doesn't fight back and engage him in hand to hand combat or should I pull my firearm, warn him appropriately and of he still insists on relieving me of my stuff, end the conflict in an immediate and safe (for me) manner? Pretty sure the law is with me there.

[DIPSLICK]

You do realise this is the very pillar that private property rests on - the ability to protect one's ownership from unlawful interference by others, alternatively demand protection thereof by the state? So pray tell, should the police, faced with cash in transit robbers, home invaders, hijackers just blow their whistles really loudly and hope the criminals will pay heed and stop? What would a proportionate reaction be to a forceful taking of my possessions? Should I hope the guy doesn't fight back and engage him in hand to hand combat or should I pull my firearm, warn him appropriately and of he still insists on relieving me of my stuff, end the conflict in an immediate and safe (for me) manner? Pretty sure the law is with me there.

 

However, the use of deadly force to protect property is highly controversial and problematic. The right to life is constitutionally protected

 

That highly controversial and problematic part I think is the issue, the requirements by our law have been laid out,,, what our opinions are means squat, how the law applies and is carried over for each individual case is the difference and how the legal teams do their work,

[mazambaan]

In my view the legal system as outlined and developed by first world idealists with soft little handies may have worked if backed up by proper education, policing and gainful employment.

 

In SA it prejudices the simple defence of individual, family and property and gives the criminally inclined a head start and get out of jail free card. A contributor to the crime rates SA "enjoys".

 

It is a little like the "pass laws" in that it may be the law, but it ain't right.

 

All strength to the cyclist and will contribute to his legal defence if needed.

[HappyMartin]

if your life is being threatened you can defend yourself until the attack stops- but you cannot chase after the perpetrator and continue the "defence" when they are running away.

Also remember that if you do decide to defend yourself then you had better win - criminals are accustomed to violence and trust me - most office bound workers are not, and don't understand there are NO rules to the fight -.it's not going to be a school yard scrap- you might die...

Statistically- running away is the safest option - please don't think going hunting for the criminal in your garden is a good idea - it's not.

Quite right. Which is why I gave up my IPhone without a struggle. Still got a smack on the back of my head for my trouble but at least I was able to ride home afterwards. I had a feeling the 9mm in my face might not have any rounds in it but I didn't feel "lucky" that day.

 

When I wrote about the incident on the hub I had one guy respond saying he would track the phone, as I did, and then go sort the guy out. When I was less than enthusiastic about that idea he basically said I had no guts. I didn't think a drive to the wanderers street taxi rank to look for an armed criminal was my idea of a fun way to spend my Sunday afternoon. I think some people spend too much time watching action movies.

[Mojoman]

A little off topic but interesting nonetheless. I was reading a book last night about how the police are NOT under any obligation to protect you (this is in certain American states). Not sure if this holds true in SA (not that the majority of our cops are much use) but its something to think about. We have only ourselves to look to for protection then?
 

[Wolf Lyle]

​

It feels a little like we're living under siege. Basically is some one wants something of yours (that you've probably worked your ass off to obtain, I know I've worked hard to afford my bikes) you must just hand it over and be thankful for your life.. I'm sorry but that's all kinds of F%$##$% up !!

 

Just the other day, I got threatened by a 15 year old "car guard" in Florida road for not tipping him.. I'll tip if its deserved , not if I'm threatened ... we have a very dangerous culture breading in SA. the more we just hand over our stuff the more they are going to take !!

****Rant Over**** ​

[Patchelicious]

It's sad when victims of crimes have less rights than the those who chose to commit them.

[Skott5]

if your life is being threatened you can defend yourself until the attack stops- but you cannot chase after the perpetrator and continue the "defence" when they are running away.

 

 

This ..

 

There has been a lot of speculation in this thread, but it was by no means a Rambo type, calculated and perfectly executed defense that resulted in instant death.

There are many factors which resulted in the final outcome, and the person involved is in no way gung ho about anything.

[johannrissik]

 

The general “gung ho-ness” of this thread worries me, so I thought I would weigh in on the general state of jubilation that the “cyclist won.” I assume that this will make me somewhat unpopular – so be it.

 

My concern is that the level of anger at the crimes to which we fall victim daily, seems to have engendered a perception that the use of fatal force is legally justified in every single circumstance. This is not the case.

 

I am not going to comment on this particular incident. The facts are not known, and I am not going to delve into conjecture.

 

That said, I thought it would be helpful (future reference) to attempt to unpack the requirements for self-defence. But,  do not construe this post as being legal advice – it is most assuredly not.

 

The general rule is that if you are the victim of an unlawful attack upon your person, property or another recognised legal interest, you may resort to reasonable force to repel such an attack. Any harm or damage inflicted upon an aggressor in the course of such private defence will not be  unlawful. This is the principle, but as is almost always the case in law, it is not  that simple.

 

The ambit of private defence (known colloquially as self-defence) is not unlimited. The requirements for a successful plea of private defence are divided into two main categories.

 

The first set of requirements are in respect of the attack. They are:-

 

1. The attack must be a positive commission or an act of omission;

2. The attack must have already commenced or be imminent. This means that if the victim has the time or the opportunity to seek other non-lethal / non-violent / (or less violent) forms of protection, he must do so. Pre-emptive attacks are not permissible. Fear alone is not enough to justify a defence;

3. The attack must be upon a legally protectable interest (life, limb, property);

4. The attack must be unlawful. (eg. you cannot defend yourself against lawful arrest).

 

The second set of requirements relate to the actual defence. The rules here are:-

 

1. The defence must be directed towards the attacker;

2. It must be a conscious self-defence action;

3. The defence must be specifically aimed at protecting a legal interest;

4. The defence must be necessary to avert the attack. A person is justified in acting in defence only if the attack cannot be avoided in any other way – it must be the only means available for warding off the attack. Where the threat is of personal injury, self-defence by means of force is not permissible if the threat can be avoided by means of escape or retreat.

5. The defence must be a reasonable response to the attack. The force used to defend against the attack must be proportional to the attack.  Excessive force will render the victim subject to prosecution / conviction.

6. The means used by the victim must not be more damaging than is necessary to prevent the danger / assault. 

As the far the protection of one’s property is concerned, one may use force (including, where appropriate, deadly force) in order to protect ones property. However, the use of deadly force to protect property is highly controversial and problematic. The right to life is constitutionally protected - so I would say that it not reasonable or proportionate to kill a thief to protect your ownership in your bike and your  IPhone, if your life is not at imminent risk.

 

Acknowledgment:: the legal requirements for private defence as set out above are as stipulated by Jonathan Burchell in his book, Principles of Criminal Law (4th edition, 2015, Juta) at pages  117 – 135.

 

@harryn Thank you for the voice of reason. It is important to know what one should do in a situation like this.  Handing over one's valuables might be the better option in the long term, but that goes against the grain for many.

 

As you correctly stated, we don't know the facts of the Giba incident, so my question below does not refer to this incident.

 

If, in a hypothetical case, three armed men attacked a single cyclist and loudly stated their intention to kill him/her, would the victim be justified in assuming that the attackers meant to carry out their threats and hence use reasonable force to ward off the attack?

[GrahamS2]

Quite right. Which is why I gave up my IPhone without a struggle. Still got a smack on the back of my head for my trouble but at least I was able to ride home afterwards. I had a feeling the 9mm in my face might not have any rounds in it but I didn't feel "lucky" that day.

 

When I wrote about the incident on the hub I had one guy respond saying he would track the phone, as I did, and then go sort the guy out. When I was less than enthusiastic about that idea he basically said I had no guts. I didn't think a drive to the wanderers street taxi rank to look for an armed criminal was my idea of a fun way to spend my Sunday afternoon. I think some people spend too much time watching action movies.

I'd have to agree with your approach, as there are far better ways to spend a Sunday. But this is SA and there are people who will do that for you (for a minimal fee). Keep their numbers handy. 

[Nayr]

Harry thanks for outlining the law, very interesting. Just as a matter of interest, surely living in South Africa where violent crime is an hourly occurrence AND the common occurrence of victims being killed in robberies, it would be safe to assume that your life IS in danger, should someone try to relieve you of your possessions? Surely president has been set or at least can be argued that should you be in this position, your life is in imminent danger due to the high mortality rate in the violent nature of crimes in South Africa?