Private Food Aid

Posted: 4th May 2020 by James Grant in Uncategorized

In what circumstances may private individuals assist those in need of food aid?

Although the regulations are not clear, it seems government is encouraging people who cannot buy food to contact social services for food aid (on 0800 428 8364) – and to prohibit ‘private’ food aid – based on the distribution of donations. However, there is an overriding defence in law (known as necessity) that allows one to act in an emergency and to break the law where the interest at stake is more important than observing the technicalities of the law. See S v Goliath 1972 (3) 1 (A) generally.

For example, if, in error, your child drinks poison & will die if not delivered to a hospital within, say 10 mins. You know that if you drive at the speed limit, stop at red traffic lights & otherwise obey the traffic laws, you will take, say, 12 mins to get the child to hospital. But, if you drive as fast as you can and ignore and ‘break’ all traffic rules, you will get the child to hospital within say, 8 minutes and save the child’s life. In these circumstances the emergency overrides the traffic laws which otherwise bind you. An interesting question – which I will not pursue here – is whether, especially given the protective relationship between a parent and child, a parent is not only permitted to break the traffic rules, but a parent may well be required to.

It is useful to bear in mind that the defence requires and then permits one to take a course of action which is the lesser of two evils where – particularly when compared with the value of observing a particular legal provision only – the value being protected in taking the course of action is more valuable. Here we can see that when the value of the life of a child is set up against the value of observing traffic rules alone, the life of a child easily trumps the need for the observance of traffic rules. One should note though that if other lives may be placed at risk in breaking the rules, then one may not be permitted to both break the rules and place other lives at risk.

Unlike private defence, which requires that any force which is justified in private defence, must be directed at the attacker, necessity permits force or action against a legal provision or even an innocent third party. See the leading case of S v Goliath 1972 (3) 1 (A) – in which it was accepted that one may kill an innocent third party in necessity – to save one’s own life. It is unlikely that the killing of an innocent third party could be justified – as the right thing to do – now, given the bill of rights and the right to equality. The reason why the right to equality is the basis on which killing may not be accepted as justified is that – one may recall – one must always opt for the greater good. If one cannot attribute different values to different lives, there cannot be circumstances in which your life will be worth more than that of another innocent third party. Without delving to deeply into theory here – it seems that the defence may yet succeed in such circumstances (of killing an innocent third party in defence of one’s life), but as an excuse rather than as a justification.

The difference is that a justification acknowledges conduct, but claims that it was right, in the circumstances. An excuse acknowledges both, the conduct and that it was wrong – but operates by appealing for the wrongful conduct to be excused as, at least, the sort of conduct we would accept as that of a reasonable person. For more – see my discussion of this issue at length in ‘The Responsible Mind in South African Criminal Law‘ (2018).

Thus, where someone is unable to buy food, and has tried SASSA, but is not being helped, and is facing hunger or starvation, the circumstances for the defence kick in and the technical prohibition is overridden by the emergency of needing to get food to people who would otherwise go hungry or starve. The private distribution of food would become lawful in the circumstances.

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