In a country ravaged by violent crime, citizens are often confronted with situations that might require defensive action, or even lethal action, in order to protect their legal interests.
Our common law recognises our right to defend ourselves. Often citizens use firearms for this purpose. In such a scenario, one relies on the legal defence known as private defence.
A person acts in private defence, and his act is therefore lawful, if he uses force to repel an unlawful attack,which has commenced or is imminently threatening, upon his or somebody else’s life, bodily integrity, property or other legal interest worthy of protection ,provided the defensive act is necessary, is directed against the attacker and is reasonably proportionateto the attack.
The following is clear from the definition:
- The attack must have commenced or must be imminently threatening. One may not perform a “pre-emptive strike” based on a mere suspicion that one might be attacked. One can also not rely on private defence if the attack is over and the threat has ceased to exist. The defence is not intended to be used as a form of punishing the perpetrator after the fact. If a person was to slap another and walk away, the victim would not be entitled to pursue the attacker in order to retaliate.
- The attack must be unlawful. If a police officer attempts to arrest a suspect who tries to flee from a crime scene, the suspect is not entitled to use force against such attempt, as the police officer’s action against the suspect is lawful.
- The interest being protected must be legally recognised. Simply put, this means that you are entitled to act in private defence when an unlawful attack is aimed at a right which the law considers worthy of protection. These may typically include the right to life, bodily integrity, property, et cetera. In the example above, the suspect does not have the right to resist lawful arrest, as the law does not recognise such a right.
- The defensive act must be necessary. The victim must ask whether there is another viable option (other than using force) at his disposal. It is not reasonably necessary for the person in the example above to pursue the one who has slapped him in order to retaliate. This would mean taking the law into his own hands. If however one is being shot at, it would make sense to shoot back.
- The defensive act must be proportionate to the attack. Even though one may in principle also protect legal interests other than one’s life (for instance one’s property), there must be a balance between the nature of the “attack”, and of the defence. On the one hand, a verbal warning would not suffice in defending against an armed robber. On the other hand, one may not shoot another based on the fact that he has insulted you in public. Should you exceed the bounds of private defence by taking disproportionate action, you will yourself become a transgressor. If you shoot and kill somebody when your life isn’t in danger but while you are attempting to protect other interests, a court may find that the force was disproportionate to the threat and therefore unlawful.
- You are also entitled to protect persons other than yourself. One should however carefully consider whether it is worth risking one’s own life or limb on behalf of another, especially given the fact that one might be acting based upon an inaccurate understanding of what is transpiring between unknown third parties.
Although our law allows for the possession of firearms and other weapons for defensive purposes, it remains the responsibility of those using them to ensure that they are legally possessed and that their actions comply with the test set out above.
The law requires that the Police must investigate every death resulting from unnatural causes. You must therefore accept that if you shoot and kill anyone, you may be treated as a suspect, you may be charged with murder or culpable homicide or an inquest will be held. In such an event you will need specialist legal assistance.
THEREFORE: KNOW YOUR RIGHTS AND BE CAREFUL WHEN YOU SHOOT.