MUST-READ: When, by law, can you shoot a suspect?
When or when not to shoot a suspect is a question on most Randfontein residents' lips.
Johan Krogh, General Manager of EPR West Rand, recently addressed the important matter of when you are allowed to use your gun for protection.
At EPR’s open day event, Moses Mtyotywa from the Rand West City Local Municipality also spoke about Randfontein’s infrastructure and answered several questions from residents in attendance.
Krogh presented the residents, business owners and several other important people in the community with a presentation of what the law says about protecting yourself, your property and those around you when in danger. This is a question on the lips of most of Randfontein’s residents.
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Krogh stated that according to the legal position prior to 1996, as in the case of State vs Van Wyk (1967) (A), you could use deadly force to protect your property and life. But this has all changed, and to make it easier, Krogh compared using a gun for self-defence to using a gun for securing an arrest.
In the case of using your gun in self-defence, there are several elements that need to be present for the act to be lawful:
• The suspect must be committing an unlawful action against you or a third party
• The offence must be incomplete, i.e. still in progress
• You can only use your gun for self-defence in certain cases, such as assault with a dangerous weapon, rape etcetera• The self-defence action must be directed at the attacker
• The action must only be intended to protect the interest (for instance, your life, bodily integrity and dignity)
• The force must be reasonable. (For instance, if the attacker is a small woman, and you are a big heavily-built male, you cannot use that to your advantage).
• There must be no other way to defend yourself, except using deadly force.
In the case of using a gun for securing arrest (Only two elements in the alternative must be present to succeed), the following applies:
• The action precipitating the arrest must be unlawful
• You can attempt to arrest a person for any offence (theft, damage to property, and so on)
• You can attempt to arrest a person at any time (even when the suspect is fleeing)
• The attempted arrest must be directed at the attacker
• The purpose of using a gun must be to secure an arrest
• The force must be applied in a reasonable way
• There must be no other reasonable way to arrest the suspect, to justify using deadly force
Krogh continued by quoting from section 42(3) of the Criminal Procedure Act 51 of 1977 (the CPA), which states that the owner, lawful occupier (tenant) or person in charge of a property (manager/ supervisor/ caretaker) on or in respect of which any person is found committing any offence, and any person (security company/ guard) authorised thereto by such owner, occupier or person in charge, may without warrant arrest the person so found.
“This section only states arrest – not hit/ shoot/do anything else,” emphasised Krogh.
Krogh cited the CPA again, referring to section 49, which states that if any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees when it is clear that an attempt to arrest him or her is being made (s 42), and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.
In addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if:
• The suspect poses a threat of serious violence to the arrestor or any other person
• Or (not and) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later. (This amendment was added to the Act in 2010).
Deadly force means force that is likely to cause serious bodily harm or death, and includes, but is not limited to, shooting at a suspect with a firearm.
Krogh said that each matter would be determined on the facts and merits when heard in court. Factors such as a man vs a woman, big vs small, known criminal/ gangster vs innocent party, gun vs spoon (for instance), shoot vs hide away (as in the Oscar Pistorius case) would play a role.
“From court cases it is very clear that no justification exists for deadly force in order to protect property. Depending on merits, justification for deadly force might be applicable in the event of s 49 instances,” he said.
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