S v BEAULE 1984 (2) ZLR 145 (S)

Flynote

Criminal law — defences — necessity — accused shooting bull which was causing damage on farm — whether defence available if person acts in defence of his property — defence must be confined within very narrow limits — where other means are available to avert danger they should be used.

Headnote

The appellant was in charge of a farm. Over a considerable period bulls belonging to a neighbour had strayed onto the farm and caused considerable damage to crops; but in spite of complaints the neighbour took no steps to curtail the bulls' straying. Finally, the appellant ordered that one of the bulls, which had strayed several times, be shot. The killing of the bull resulted in no further incursions taking place, but also resulted in the appellant's prosecution on a charge of malicious injury to property.

The appellant raised the defence of necessity, arguing that in all the circumstances what he did was reasonable.

Held, that the Courts have always adopted a most cautious view of a defence of this nature, confining the defence within the strictest and narrowest limits.

Held, further, that it was not necessary to decide whether the defence can ever be available when a person acts to protect his property. This was because there were, in the present case, other steps open to the appellant which he should have taken before resorting to the final, drastic step of killing the bull. Whether, if those steps had been taken without success, the appellant's action would have been justified, it was unnecessary to decide.

Held, further, that the defence also failed on the ground that there was no immediate or imminent danger from the bull at the time it was shot. Indeed, the shooting was prompted, not by necessity, but by provocation, which can never be a complete defence. The sentence correctly took this provocation into account.