Govt should review law on the right to self-defence

With a clean criminal record, Bloemfontein father Moshimanegape Mafora this week found himself on the opposite side of the law.

An armed intruder scaled the wall of his Phutanang home and brazenly entered the house in what could have spelled a fatal attack on his family.

Without a licensed firearm, Mafora allegedly stabbed the attacker to death – an act that saw the police putting him behind bars.

The SA criminal law is seemingly protective of criminals, making it impossible for you to defend yourself, even when you are besieged by an armed intruder in your own home.

You are compelled to show that your life was in danger. In a situation where it takes a second for someone to pull a trigger, how much time do you have to show that your life is in danger?

Protecting himself and his family is what was important for Mafora, whose family is still reeling from the traumatic experience.

In what lawyers refer to as “defence of necessity”, law is full of case studies.

Defence of necessity or duress is defined as a situation when an individual commits a criminal act during an emergency to prevent a greater harm from happening.

It is when a defendant is forced by natural circumstances to choose between two evils, with what the law define as “the criminal act”, being the lesser evil.

Mafora has maintained that – despite intentionally and knowingly – having violated the law, he has committed no crime.

His argument has a precedent here and abroad.

The Supreme Court of Rhode Island held that a member of the United States Naval Reserve Force – on duty as a despatch driver – was not amenable to the speed laws of the state while on his way to deliver a message at the command of his superior officer, which that officer deemed urgent.

The decision rested on public necessity; a principle which the court found was “without application to cases which show a failure to comply with our laws and ordinances when no military necessity exists”.

This became one of the many examples of the application of the defence of necessity in the US.

The defendant admitted intentionally exceeding the speed limit knowing the act was illegal. But under the pressure of circumstances, the act was justified by “necessity”.

In State versus Burton it was found that conduct “is justified if it is necessary and appropriate to avoid harm clearly greater than the harm which might result from such conduct and the situation developed through no fault of the actor”.

In defining necessity, Glanville Williams said: “By necessity is meant the assertion that conduct promotes some value higher than the value of literal compliance with the law.”

South Africa has seen many incidents similar to what Mafora has gone through, but there has not been any willingness from the government to take a fresh look at the application of the law when your life is in danger.

Should we behave like sheep destined for a slaughterhouse when we and our families are threatened by criminals?

With our crime rate having gone out of hand, perhaps it is time for government to review the law when it comes to defending yourself – particularly in your own home.

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