Ask the experts: Safety – when are you allowed to shoot?

7 May 2024

By: Butch van Blerk

Earlier this month, a farmer in Mpumalanga was arrested for shooting and killing a suspect who allegedly hunted illegally on his farm. Legal expert Butch van Blerk shares the following about legislation on firearms for self-defence and the use of lethal force.

What happens if I wound or kill an intruder in my home in self-defence?

In terms of South African law, a citizen has the right to self-defence. It allows the use of force and the right to shoot or even kill an intruder in your dwelling during an unlawful attack. A resident need not wait until they are overpowered before taking action. If your actions are considered reasonable under the circumstances to protect yourself and your family, using force, even lethal force against an intruder should be lawful.

However, a resident should resort to this drastic step only if there is no other reasonable option to protect themselves or their family. Your actions will be measured by whether they were reasonable under the circumstances. If it may not have been necessary to shoot and kill an intruder, such as a beggar asking for food,  you may be found guilty of committing a crime such as murder or culpable homicide.

Should I stay in the house after calling the police?

Call the police, explain that you have shot an intruder in your home and ask them to call an ambulance. Also, call for an ambulance yourself. This will indicate that you cared for the suspect. Remember that any action taken by you will be questioned. So act reasonably and rather try to stop an intruder than kill.  Also, inform your farm watch, if it exists, as well as your attorney.

Do not leave the house until the police arrive unless circumstances require it. If asked, cooperate with the police by explaining what happened. However, you need not provide a statement to the police at that stage. Your attorney can help you to prepare a statement for the police at a later stage.

May I keep my firearm with me? And the intruder’s weapon?

The police may ask to take possession of your firearm as evidence for investigative purposes, and for ballistic and forensic tests. Make sure the weapon is sealed if the police want to take it for further investigation. Leave a victim with their weapon or firearm untouched and do not tamper with any evidence at a scene where someone has died.

May I wait for my attorney or will the police question me immediately?

When the police arrive, you can inform them you shot the intruder in your home. You have the right to wait for your attorney and may not be intimidated by anyone. Statements are required at a later stage and not at the scene.

Will I be arrested?

If an intruder dies, the police may open a murder due to the intruder being killed with a firearm. The circumstances are investigated, and if homicide is not suspected no murder charge will be laid. This is when the intent to commit a murder cannot be proved against you. You could show, for example, that you intended to stop the intruder by shooting the intruder in the body, rather than trying to cause his death. It can be a complex event as these attacks usually occur at night when it is dark and you have only a fraction of a second to make a decision.

You will need to explain your actions. If the police suspect you acted lawfully,  a judicial inquest docket needs to be opened. When an intruder is negligently and unreasonably killed, the resident may be found guilty of culpable homicide and sentenced.

What liability do I have if someone uses a firearm registered in my name? Even if it’s a family member and in our interest?

A firearm owner must exercise full control over their firearm. Negligence can render the owner guilty of a crime and cause the loss of their right to possess a firearm.

If a family member takes a firearm from a safe to apply self-defence and lawfully kill an attacker, the owner should be absolved from liability. Wrongful death could cause the owner to face charges under the Firearms Control Act (Act 60 of 2000) and other charges.

Am I entitled to keep a firearm in my bedroom for quick access at night, and not in a safe locked in a room?

You have the right to access your firearm quickly and effectively for effective use. You have the right to be prepared. It would be acceptable to keep the firearm in your bedroom at night, but it would be subject to strict requirements regarding control over your firearm. The responsibility of owning a firearm is significant.

When may I use lethal force?

Jacques van der Westhuizen, an accredited firearm instructor and owner of True Survival in Somerset West, answers:

  • There must be an attack on your person or on a third party you are trying to protect.
  • The attack must be unlawful.
  • The attack must be directed at a person, not property.
  • The attack must have begun or be about to occur.

Does the attacker:

  • have the ability to cause serious bodily harm? A small person threatening a larger one with their bare hands may not cause serious bodily harm. However, the same person wielding a brick may do so. Is a weapon visible?
  • have the intention? Someone walking in the distance with a machete with no sign of intending harm is not yet considered to have bad intentions. However, someone with a broken bottle gripping you by the collar does.
  • have the opportunity? Someone who has broken in and threatened you from behind a security gate with a knife does not have the opportunity to harm you. Here, someone with a firearm does.

All three of these requirements must be met to justify the use of lethal force. This also applies to other circumstances where lethal force is justified, such as when someone kills a hijacker to save their own life.

Butch van Blerk is a director at Bill Tolken Hendrikse Inc in Bellville, Cape Town. He is a Senior Attorney and Conveyancer and has been practising with the firm since 1981.

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