Blue light hijacking. Image: pexels.com
Blue light hijacking. Image: pexels.com
One of the most thorny subjects in the South African discourse is our right to self-defence, and the laws surrounding it. This country has its well-documented issues with crime, but what’s not been made so clear is what rights we have to fight back using potentially-lethal force.
Various legal experts have tried to explain the matter over the years, but the overlapping grey areas have made it a difficult task. We’ve put together everything we know about our self-defence laws, in the hope that we can address a few of the more common questions that get asked about this topic:
You don’t have a license, let’s say, to shoot an intruder just for discovering them in your house. If that person was unarmed, you’d be in serious trouble yourself. In fact, the only time you’d have “free reign” to defend yourself is if your assailants were armed and were threatening to kill or seriously harm you or other residents.
John Welch is a spokesperson for the SA Gun Owners’ Association. He explains that victims must use “commensurate” force – which essentially means “force that is reasonable in comparison to the attack”.
“In self-defence, the first requirement is that there must be an unlawful and violent attack. The defender has the right to use the necessary force, but not excessive force, to thwart the attack. The defence, therefore, must be commensurate with the attack.”
“But one must not think that implies the same type of force or weapon must be used – If the attack is by a number of violent, but unarmed – or armed with sticks or knives – attackers, self-defence with a firearm might then be justified. There are mitigating circumstances.”Advocate John Welch, spokesman for the South African Gun Owners’ Association
In a more general, non-housebound context, self-defence action must be relative to the circumstances of the attack, according to the Constitutional Court. If an attacker is armed with a something other than a gun or a knife – and acting in a way where they look set to use it – you must use appropriate force.
Should you be in a position where you have to take a life, the police will have to establish a few factors. Pulling a trigger or defending yourself “by any means necessary” comes with some burdensome knock-on effects. The police may look favourably upon a victim who fought-back, IF…
If none of the aforementioned circumstances are met, opening fire on an attacker taking their life with a weapon would then put you in some serious legal trouble. Likewise, if you subdue someone during an attack, you aren’t allowed to shoot them or keep hitting them if you’ve already restrained them. Anti-crime advocate Yusuf Abramjee says police are likely to open up a murder charge when criminals are killed this way:
“Often, when confrontations with criminals result in an attacker being killed, police will open a murder docket and investigate. No matter what happens, it’s important to remain calm and to protect yourself and your family.”Yusuf Abramjee
According to ConCourt, the right to life applies to all, and in the case of crime, it includes both attackers and victims. Many people have a hard time comprehending this. But with the principle of “innocent before proven guilty” being the pillar of our judiciary, hastily taking someone’s life for a crime of less-severity than the one you could possibly commit leaves someone on very shaky legal ground, should their self-defence prove to be “excessive”.
While circumstances differ from case to case, the Constitution states that no one may take the law into their own hands. However, should rape victims fear for their lives, they may protect themselves. It is justified if it is reasonably necessary to repel the attacker.
This was pulled into sharp focus in 2017, when the case of “Lion Mama” made international headlines. An Eastern Cape woman stabbed three men who were raping her daughter, killing one of them. However, despite the adulation she received, other South African women don’t get the same leniency:
“The defender would have to prove that they were, in fact, in real danger, which becomes complicated as rape is a notoriously difficult crime to prove and often one’s word against another’s, and conviction rates are pretty low in this country – we must take more action against the pervasive rape culture in our country.”Law For All
Also read: Robbers flee in terror after targeting the wrong guy