About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

92 S. African L.J. 325 (1975)
Law and Political Reality

handle is hein.journals/soaf92 and id is 363 raw text is: NOTES AND COMMENTS 2525 Be that as it may, it remains only to remark that neither Lynch nor Goliath was a case in which the person under duress was the actual killer. Logically, one should treat the actual killer in the same way. The test should be: Would the average person in the circumstances have killed thb deceased? If the answer is 'Yes', he should be acquitted-a result that seems to me to be monstrous. Lord Wilberforce was at pains to point out (at 929) 'that although in a case of actual killing by a first degree principal the balance of judicial authority at the present time is against the admission of the defence of duress, in the case of lesser degrees of participation, the balance is, if anything, the other way. At the very least, to admit the defence in such cases involves no departure from established decisions.' But can one escape the implications of the principle adopted in Goliath? Perhaps the answer is that the fact that the accused was the actual killer is but a datum to be taken into account in deciding whether duress is a defence in the circumstances. Again, it should be noted that neither Goliath nor Lynch was a necessity case such as Dudley & Stephens, and to speculate on what their impact would be in that context would be dangerous. Nor is S v Bradbury 1967 (1) SA 387 (AD) in the same category: Bradbury, although acting under duress, had put himself by his prior conduct (his previous association with a criminal gang) in the position where he could be subjected to such pressures. D ZEFFERTT LAW AND POLITICAL REALITY The ghost of State v Dosso (1958) 2 Pak SCR 180, (1959) 1 Pak LR 849, the historic Pakistan constitutional case, which had its sequel in the Rhodesian constitutional dispute of 1965, has finally, albeit ambiva- lently, been exorcized from judicial thinking in Pakistan. InJilani v The Government of the Punjab PLD (1972) SC 139 the Pakistan Supreme Court overturned Dosso's case and a long line of precedent following it on the application of the Kelsenian Grundnorm theory to abrupt political changes not within the contemplation of an established Constitution. The majority in Dosso's case gave judicial recognition to the new military regime of Field-Marshal Ayub Khan, despite the fact that the new regime could not claim its birthright in terms of the existing Constitution, and had in fact supplanted the existing Constitution with a 'new' Constitution embodied in the Laws (Continuance in Force) Order of 1958. The five judges in Jilani's case, all of whom concurred, canvassed a multitude of jurisprudential theories and thinkers, and their remarks leave much for the jurisprudent to ponder. Although on the facts Jilani's case can be clearly distinguished from Madzimbamuto v Lardner- Burke NO & another 1968 (2) SA 284 (RAD), the legal principles in dispute were identical.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most