Hi AJ
Thanks. I enjoy debating with you too, glad we see it the same way and can speak freely!
Our first issue is: do I understand your position, and do you understand my position? We need to be clear and agree on this first, before we can decide anything else.
Now, I have read your last post carefully. I could answer each point, and I may well do that in a later post for completeness. But, most of it seems irrelevant to the issue at hand, so I fear we would be opening cans of worms that dont need to be opened. Forgive me if I put forward a different route to advance this discussion.
Let me first put aside your point number 6
I previously gave a definition of putative private defence as someone believing he was acting in private defence when in fact he was not. In your point 3 you included in your definition the belief he was lawfully defending himself.
Therefore, if there are objective requirements x, y, z to act in private defence, then an accused who knows the law and who acts in putative private defence must have subjectively believed the requirements x, y, z were met. It is logically entailed by the definition - believed acting in private defence.
Now onto our positions and the differences
'My' position
Putative private defence = subjective belief acting in private defence, when in fact not the case
It is a simple definition that leaves open the possibility of being objectively reasonable or objectively unreasonable in your beliefs and conduct
You can therefore kill in putative private defence and be found guilty of culpable homicide, because you may have been objectively unreasonable and negligent in the killing based on what a reasonable person would have believed and done
(It is even possible to argue that you can kill in putative private defence and be found guilty of murder by dolus eventualis, because you may have foreseen the risk that you may not be acting in private defence. This is a subtle point best left for another time though)
And of course as we both agree you can kill in putative private defence and be acquitted of murder and culpable homicide.
My understanding of Your position
Putative private defence = subjective belief acting in private defence, when in fact not the case AND you MUST have been objectively reasonable in your belief and conduct based on what a reasonable person would have done, therefore you must be acquitted of murder AND culpable homicide
It is a complex definition that has an added requirement of objective reasonableness that has come from somewhere.
If you kill in putative private defence, you must therefore be acquitted of murder and culpable homicide.
Evidence in support of my position (bbm)
1. The meaning of the words in English: putative means believed. So putative private defence means believed private defence. It follows as a matter of logic that this may be reasonable or unreasonable. The words simply do not contain any reference or limitation to reasonable putative private defence.
2. Judges in judgements consistently agree and use the term in accordance with the position I lay out. I have read about 10 judgements and they all adhere to the same.
In S v De Oliveira a defining judgement by the Supreme Court of Appeal this is explicit:
In putative private defence it is not lawfulness that is in issue but culpability ("skuld"). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person's death based on intention will also be excluded; at worst for him
he can then be convicted of culpable homicide.
http://www.saflii.org/za/cases/ZASCA/1993/62.html
The judge goes on to state that on appeal the accused accepts he was unreasonable in his belief and conduct and rightly so. The judge then STILL goes on to consider whether he did or did not act in putative private defence and gives his reasons why this is not the case. He does not consider that because he was unreasonable he cannot have acted in putative private defence. It is therefore clear that objective reasonableness is not viewed as a requirement of putative private defence.
3. Counsel in judgements also agree with the definition and use the term in accordance with the position I lay out. Eg Lutchman Naidoo v S Appellants counsel further submitted that if it is found, objectively viewed, that the appellants life was not under threat, the appellant erroneously believed that it was in danger and that
he therefore acted in putative self defence. The submission was further made that the erroneous belief of the appellant excluded dolus
and he should have been convicted of culpable homicide only.
http://www.saflii.org/za/cases/ZASCA/2010/40.html
4. Professor James Grant, professor of criminal law in SA, has written extensively on the matter and in relation to the OP case. He also agrees with the definition and uses the term in accordance with the position I lay out. Here he says an accused may have acted in putative private defence and still be found guilty of culpable homicide: Thus, if Pistoriuss defence is that he was mistaken in acting in self/private defence (that is,
putative self/private defence), he must be acquitted on the murder charge
if the court accepts that this is reasonably possibly true. But
the court will then consider whether this mistake was one that a reasonable gun owner may make.
http://criminallawza.net
5. In all the expert legal panels and discussion on the OP case, every one I have heard has agreed with the definition and used the term in accordance with the position I lay out.
Evidence in support of your position
As far as I can tell, you read from an unidentified source on the internet some time ago that putative private defence MUST be objectively reasonable and your whole view is based just on this.
An Analogy
We agree an apple is an apple, a banana is a banana, a potato is a potato. However, we disagree on the definition of a bowl of fruit. You say it is a requirement that a bowl of fruit includes a banana. I disagree. This leads to confusion when we are discussing bowls of fruit. It also means when judges and proceedings discuss bowls of fruit, our understanding is different.
An example of why it matters
Imagine Judge Masipa is making her way through the judgement and says she does not believe putative private defence has been proved beyond reasonable doubt. You AJ will be frothing at the mouth that OP has got off totally free. I on the other hand will know he may still be on the receiving end of culpable homicide and custody - e.g. the judge may find he was negligent in not considering it may have been Reeva and negligent in believing he was under imminent attack
Also, there is the obvious matter that we are talking at cross-purposes with confusion. At the end of the day, if the legal field is using one definition and understanding, then this should be the one used IMO.
