The issue of using violence as self-defence often elicits public debate, and in a country that is relentlessly subjected to violent crime, this subject is often controversial.

The controversy stems from what is legally prescribed as well as the practical judgment required of citizens when criminals invade the privacy of their homes or property. These circumstances usually afford little time in which to determine the criminals’ motives, or to establish which action using available resources, such as a firearm, would be considered reasonable for fending off an attack.

Lethal violence – fair or not?

It is also within this context that, in certain circumstances, the use of lethal force as appropriate action must be justified and, in the absence of justified action, the killing of another person may lead to prosecution for murder or culpable homicide.

Unfortunately, no single, clear rule of law exists that can be applied under all circumstances relating to an attack. Section 49 of the Criminal Procedure Act, 1977 (Act 51 of 1977) was amended to align with the Constitutional Court’s interpretation of the right to life, as in section 11 of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).

The relevant part of section 49 of the Criminal Procedure Act deals with the use of force during an arrest. It stipulates that the arresting officer may use lethal force if the suspect poses a threat of resorting to serious violence, or the arresting officer has reasonable grounds to suspect that the suspect committed an offence and arrest is not possible without inflicting grievous bodily harm.

Should a person use self-defence to fend off an attack or during arrest and someone is killed in the process, compliance with section 49 will determine whether such a defence would be successful.

Little time for decisions

However, the victim or arresting officer often only has a few seconds in which to make the decisions that will keep their actions leading to the death of another person in line with the requirements set out by section 49.

What makes the situation even more difficult is the circumstances under which this decision has to be made. The victim or arresting officer does not have the luxury of hindsight, nor do they have time to consider the facts when making decisions – the appropriate action must be taken almost instinctively.

In most circumstances a victim or arresting officer will be confronted with two reactions: I must act now before it is too late, or I doubt whether I should act and am unsure if my actions are motivated by retaliation or anger instead of defence.

In cases where a victim is confronted with the latter reaction, the use of lethal force should be avoided as this will be the focus of cross-examination in court.

Factors to consider

Factors that can be considered when deciding on the best way to act include the following:

  • The time of day or night.
  • The area in which the threat takes place – is it a public space or a private house, and is the attacker authorised to be there?
  • Whether the suspect possesses a weapon at the time of the attack.
  • The actions of the suspect at the time of the confrontation – is the suspect threatening the victim’s life or is the suspect fleeing?
  • Have other people already been attacked or are they being attacked?
  • Proven past violent acts or threats of serious harm by a known person.
  • The physical appearance and abilities of a suspect and what it would mean for a smaller or weaker victim, and vice versa.
  • A suspect who has already fired a shot.
  • The refusal of an armed suspect to stop an attack after the victim fired a warning shot.
  • Proven violent access to private property.
  • Syndicate action in an area where victims have already been seriously injured or killed, and there is reason to believe that the same suspects are striking again.

Be ready and informed

Proper planning and knowledge of the aforementioned legal principles, together with the skilled, responsible use of a weapon for self-defence, will make it easier to make the right choices under difficult circumstances.

In a country where brutal attacks are an everyday occurrence, it is worth arming yourself and your family with the knowledge and skills to take the correct action when the time comes to make some difficult decisions. – HJ Moolman, Moolman & Pienaar Incorporated

For more information, contact HJ Moolman
on 018 297 8799, 018 297 0397 or hj@mmlaw.co.za.