POLOKWANE – During a recent attack, an intruder was shot and killed by the owner of a smallholding after several of the armed attackers opened fire on the residents.
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Advocate John Welch, Spokesperson for the South African Gun Owners’ Association (Saga), outlined what he described as the ‘extremely limited conditions’ under which citizens were entitled to act in self-defence.
“In the light of constitutional rights to life, human dignity, freedom and security, any degree of force or violence may be executed lawfully in limited circumstances only, for instance in the preservation of one’s own life or that of a family member or other innocent person,” Welch said. “However, the Constitutional Court has also ruled that one is entitled lawfully to defend oneself, even by injuring or killing an attacker, if the attack was such that it was life-threatening to the defender.”
Welch said self-defence was governed by common law, and the use of force during the arrest of a criminal was governed by section 49 of the Criminal Procedure Act, No 51 of 1977.
“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,” he said. “The defence, therefore, must be commensurate with the attack.”
Welch said in the case of typical South African attacks during farm and home invasions and hijackings, the attacks are generally extremely violent. “Almost always, illegally possessed firearms are involved and attackers don’t hesitate to use these. Contrary to what applies to ordinary citizens, they do not believe in reasonable force. In all cases of such violence, citizens would be entitled to use lethal force to thwart the attack. When one considers whether the defence is commensurate with the attack, one must not think it implies the same type of force or weapon must be used,” Welch said. “If the attack is by a number of violent, but unarmed – or armed with sticks or knives – attackers, self-defence with a firearm might be justified.”
He said the law did not expect warning shots, unless it was safe to do so at an opportune moment.
“If shooting is the only way to save your or someone else’s life, it might be justified,” Welch said.
However, he advised to lock the family up in a room and call the police and security company. “When you hear the intruders at the locked door, warn in a stern voice that you are armed and will not hesitate to shoot, but be prepared to carry out your threat,” Welch said.
“It’s every person’s right to choose whether he or she wants to possess a firearm.”
Welch said a handgun was ‘the best weapon for the job’ as it was generally easily concealed, readily available and not difficult to master with dedication and training.
A firearms expert and former policeman, who asked not to be identified, said a gun owner could only use a gun as a ‘last resort’ when facing ‘imminent life-threatening danger’ or to save someone else’s life.
“If one produces a gun to end a threat and the threat is defused, the further use of a gun is no longer an option unless it is to keep the threat at bay. But even this has the risk that the gun owner is relieved of his gun, which can then be used against them.
“An intruder being inside your property does not make the shooting legal, it’s whether your life is in imminent danger,” he added.
“It will then be up to you to prove self-defence. There is also ‘excessive use of force’, when a gun owner shoots a suspect ‘too many times’. Although your shoot may be deemed lawful, you may be charged with excessive use of force. Only fight if you have no other option because there are so many consequences to pulling the trigger.”
