R v Smith (1900)

R v Smith is an important case in South African criminal law, especially on the defence of obedience to orders. The court adopted what has since been described as "a middle course" between, on the one hand, the view "that the subordinate has a duty of blind obedience to her superior’s order", and, on the other, the view "that the fact that the subordinate obeyed an order is not a ground of justification".[1] The court described these as the “two extreme propositions of law”, and opted for a middle course by adopting and applying the following rule: A soldier is compelled to obey an order only if the order is manifestly lawful. If it is manifestly unlawful, she may not obey it; if she does, she acts unlawfully. This test has been applied in later South African decisions. According to CR Snyman,

The middle-course approach was obviously favoured by the compilers of the Constitution, because section 199(6) of the Constitution provides that no member of any security service may obey a manifestly illegal order.

See also

References

Notes

  1. ↑ Snyman Criminal Law 138.
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