SELF-DEFENCE – WHEN MAY I USE FORCE?
Self-Defence – To shoot or not to shoot…. That is a very complicated question. Many South Africans are confused regarding their rights to self-defense. Before we try to answer this question, let us look at some statistics.
According to the 2017 Global Peace Index, South Africa is placed at 123 out of 163 countries on the ‘peacefulness’ scale. Crudely turning this statistic around, would place us at 40 out of 163 on the ‘aggressiveness’ scale.
According to The Globalist, violent crime has declined since 1994, but this country still faces one of the highest murder rates in the world. South Africa features among the top ten murder rates worldwide and are fourth-ranked in absolute numbers.
Statistics released by the World Health Organization in 2016 ranks South Africa as the “ninth most violent country in the world”. The data uses murder rates per 100 000 people.
None of the above is anything to be proud of.
SO, WE LIVE IN A DANGEROUS COUNTRY, MAY I SHOOT TO KILL?
Confusingly, the answer to this question is both ‘yes’ and ‘no’. The Constitutional court has already set a precedent that one is lawfully entitled to self-defence. However, at the same time it guarantees the right to life. This guarantee, after all, is the reason the death penalty was abolished. This is where it gets murky – the right to life applies to all, and in the case of crime, to both attacker and victim.
This may sound very unfair from a victim’s perspective, and a statement like this will result in many emotional debates. The truth is, however, that we cannot become vigilantes and shoot to kill whenever it suits us. What if a child breaks into your house looking for food, and he is shot without any provocation or imminent danger to yourself?
THEN HOW DO I DEFEND MYSELF AND MY FAMILY?
The legal description of private defence (or self-defence) is straight-forward. According to Burchell and Milton’s Principles of Criminal Law (2005), private self-defence is when “A person who is the victim of an unlawful attack upon person, property or other recognised legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the court of such private defence is not unlawful. “
However, in practice it is not so easy. While every self-defence case will be heard on merit in the courts, you will have to justify your action. The following legal requirements will have to be met and proven:
- The attack was already in the process or an attack was imminent. You may not shoot pre-emptively or after the attack took place.
- The attack was unlawful.
- You were protecting your life, your physical wellbeing, property, personal freedom, your dignity or sexual integrity.
- The act of self-defence was necessary to prevent the attack from escalating.
- Your act of self-defence was directed only toward the attacker.
- The act of self-defence was reasonable and proportionate to the circumstances. Shooting an unarmed person may not be considered self-defence.
- You didn’t have any time to resort to a different, less violent form of protecting yourself and your interests.
These same legal requirements apply when you defend someone else against an attacker. So, basically you may only take a life if another life is in imminent danger. The important word here is imminent. The attack must be about to happen.
Furthermore, if someone is robbing your house or is in your yard, you may not shoot them or harm them unless they are a direct threat to you or your family. Shooting someone because he is stealing or damaging your property, while your life (or someone else’s) is not in danger, will also not be deemed self-defence.
WHERE MUST I FIND THE TIME TO MAKE SURE WHETHER THE ATTACKER MEANS HARM OR NOT?
The Oscar Pistorius case opened the focus on Putative self-defence in South Africa. While private self-defence only goes about the lawfulness of one’s self-defence actions, putative self-defence goes about the state of mind one was in during your act of self-protection. If someone really believed his life was in danger, even though it was not, and thus act in self-defence, a case for putative self-defence may be made.
As an example, a farmer who lives in an area where violent and deadly farm attacks are frequent, may have a strong case for putative self-defence in the case of an attack. On the other hand, a person living in a security estate with no history of criminality, who shoots someone who tries to steal his bicycle, may not.
IT SEEMS THAT CRIMINALS HAVE ALL THE RIGHTS, WHILE VICTIMS HAVE NONE
The failure of our criminal courts and the incompetence of police in certain cases cause a perception of ‘criminals have more rights than victims’. This is understandable. However, the principle of ‘innocent until proven guilty’ remains and shooting before asking questions may just result in an innocent person being killed.
SOME PRACTICAL EXAMPLES OF WHEN THE USE OF FORCE MAY BE ACCEPTABLE
Advocate John Welch provided these guidelines in 2014:
- In self-defence there must be an unlawful and violent attack. The defender has the right to use force, but not excessive force, to thwart the attack. The defence, therefore, must be commensurate with the attack.
- For example, if one person slapped another, the victim would be entitled to grab the person’s hand to prevent being slapped. However, if the victim continued to hit and kick his attacker, although the latter had stopped his attack, he (the victim) would then become the attacker and be guilty of assault, or worse.
- In the case of typical South African attacks during farm and home invasions and hijackings, the attacks are generally extremely violent. Contrary to what applies to ordinary citizens, the attackers do not believe in reasonable force. In cases of such violence citizens would be entitled to used lethal force to thwart the attack.
- A single slap on the cheek would not mean a victim could shoot his attacker. However, if that attacker happens to be a massively built boxer or karate expert, one cannot be expected to absorb such a slap – you might not be alive thereafter. If the attack is by several violent, but unarmed – or armed with sticks or knives – attackers, self-defence with a firearm might be justified.
- If the attack is serious, unlawful and violent and shooting at the attackers is the only way to save your or someone else’s life, it might be justified.
- However, try not to confront intruders, but to rather lock the family up in a room and call the police and security company.
This article is by no means an exhaustive list of when you may or may not use force for self-defence. While the primary test remains, ‘your life or the lives of others must be in imminent danger’ before you may use force, each case will be judged on merit and the outcome may differ.
In South Africa we do have the right to self-defence, but that right may not take away the Constitutional Right to Life of others. Yes, our systems seem a bit broken at this point in time, and we do live in a dangerous and violent country. The best thing to do is to be vigilant, prepared and be aware of your rights.