Examining provocation and self-defence in the Maselspoort Resort incident
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Topics Criminal Law | Dispute Resolution
14 Jun 2023
On 25 December 2022, an unfortunate incident occurred that once again caused a divide among South Africans at the Maselspoort Resort, Bloemfontein. The incident involved an attack on two boys, 13 and 18 years old at the time, who were allegedly attacked by multiple men at a pool. Two of the men involved in the attack, Johannes Nel and Johannes Stephanus van der Westhuizen, are currently facing charges of crimen injuria, while the third man, Kobus Klaassen, is currently facing a charge of attempted murder.
Notwithstanding the obvious racial stir caused by the incident, the debate over social media and between South African citizens entails some allegations, the most prominent of which is that the children lodged an attack on a three-year-old girl by forcing her into the water. This alleged action led to the main attack of the day. The allegation is that, after the attack on the girl, the girl’s parent and the first mentioned teens had words outside the pool. The boys then made unsavoury remarks to the girl’s father. This led to a verbal sparring between the parties, which led to the parents attacking the boys. This article will, by no means, accept any of the said allegations as true or false, but will only accept same as a hypothetical to comment whether the truthfulness of said allegations would afford the men any defence, even if proved.
Snyman  defines assault as follows:
“Assault consists in any unlawful and intentional act or omission … which results in another person’s bodily integrity being directly or indirectly impaired, or … which inspires a belief in another person that such impairment of their bodily integrity is immediately to take place.”
Given the nature of assault, the question of provocation is regularly discussed. One can easily speculate that a large portion of assault cases, if not the majority, are caused by provocation, at least to some extent.
In S v Eadie , the Court held that the defence of provocation should be treated on the same level as that of sane automatism. As such, the accused must prove that when he acted in provocation, he acted completely involuntarily and that his body acted in automation. An example of sane automatism would be kicking someone in one’s sleep, therefore when one does not have control over one’s bodily actions. It is submitted that proving one was provoked to such an extent that one acted completely involuntarily, would be extremely difficult, if not impossible.
In Oosthuizen & Another v S , the Court stated that Eadie has likely dealt the “death knell” for the defence of provocation, making it highly improbable that provocation may still suffice as a defence.
It is worth noting that the defence of private (self) defence will, in all likelihood, not be a suitable defence in the Maselpoort matter. If the allegations that the teenage boys did attack a little girl are indeed true, then said attack had stopped when the men and the teenage boys had words outside the pool. For private defence to succeed, the initial attack cannot have already stopped, as would be the case here. In this regard, it is worth noting the definition of private defence, as defined by Snyman :
“A person acts in private defence, and their act is therefore lawful, if they use force to repel an unlawful attack which has commenced, or is imminently threatening, upon their or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack.”
It should be noted that, if it can be proved that the boys made threats to the parents, or the girl, private defence may be a suitable defence for the various accused to rely on. By taking account of the definition of private defence, as provided above, the threat would have to be imminent. It is important to take note that, according to Snyman , the test for private defence is objective. Snyman  also confirms that the act of defence must not exceed the threatening attack. Therefore, it is submitted that if the boys made threats to the parents of the girl, such threats must have been made in a manner that the accused persons had reasonable grounds to accept that there was imminent danger to the parents or the girl, and that said danger was at least to the degree of the attack that was lodged on the boys.
Snyman  states further that on a charge of common assault, provocation cannot serve as a complete defence, and may only be led in evidence as grounds for mitigation. When an accused is, however, charged with assault with the intent to do grievous bodily harm, evidence of provocation may result in a conviction, however for the less serious charge of common assault.
It is also submitted that when confronted in a situation where one is provoked, one should guard against attacking the other person, as provocation will likely not be a satisfactory defence.
Currently, the case against the accused is postponed for the accused to view CCTV footage of the incident. This, according to Eyewitness News.
References: Snyman CR, Criminal Law, 6th ed. LexisNexis, 2014, p 447
 2002 1 SACR 663 (SCA)
 (144/2018)  ZASCA 92 (1 June 2018)
 Snyman (supra) p 102
 Snyman (supra) p 112
 Snyman (supra) p 113
 Snyman (supra) p 235
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Philip Venter is an articulate and driven litigator and has been an admitted attorney since September 2021. He is passionate about the law and specialises in Magistrate’s Court litigation, commercial... Read more about Philip Venter