The area of Private Defence (Self-defence) is somewhat grey in the South African legal system. Attorney and layman alike struggles with the question – when may I harm or kill an attacker in self-defence? A plethora of precedent has given clarity to some extent, but the waters with regards to this topic remain treacherously murky.
There are broad principles which may guide us to know when it is lawful to harm or even kill an attacker which will now be looked at more closely. It is of paramount importance to note that when weighing the facts in a certain case the courts will always look at what a reasonable person in the same situation would have done, OBJECTIVELY, meaning, with the wisdom of hindsight.
In essence the attack against which one defends oneself as well as the actual act of defence should each meet three requirements:
The attack against which one defends oneself;
should have commenced or be imminent (i.e. not in the past or distant future)
should be aimed at a legally recognised interest (i.e. life, property, dignity etc.)
should be unlawful (i.e. not a lawful arrest, justifiable punishment etc.)
The act of defending oneself;
should be necessary to avert the attack
should be reasonably with regards to the amount of force used
should be directed against the attacker
There is also a principle of proportionality which is enforced by our courts. That is, the act of defending your interests shouldn’t inflict more harm than the initial attack against which is defended. This principle brings us to the natural conclusion that you may not take a life in order to defend property. On the other hand, force – even lethal force – may be used to defend your own life or the life of an innocent third party.
The following scenario will help illustrate the points discussed herein;
X wakes up in the middle of the night to the sound of breaking glass. He tells his wife to stay in bed and retrieves his firearm. He proceeds downstairs and finds a man carrying his television out of the broken window. X open fire - killing the intruder.
In this scenario X will most likely be found guilty of murder. The legally recognised interest he protected (ownership of his television) is not proportional to the harm caused with the act of defending that interest (the life of the intruder).
Let’s take a look at another scenario;
X wakes up in the middle of the night to the sound of breaking glass. He tells his wife to stay in bed and retrieves his firearm. He proceeds downstairs and finds a man carrying his television out of the broken window. X fires which causes the intruder to drop the television and draws a firearm of his own. Before the intruder can aim his firearm X shoots and kills the intruder.
In this scenario X will most likely not be found guilty of a crime. A reasonable person in X’s position would have felt that his life was in danger and that lethal force was necessary to avert the attack.
It is important to note that one’s own life need not be in danger before lethal force becomes lawful. The life of a innocent third party may also be legally protected with lethal force. Another scenario may illustrate this.
X wakes up hearing his daughter screaming in her bedroom. He retrieves his firearm and runs to her room. He finds an intruder in the room with a knife in his hand and fires at him – killing him instantly.
In this scenario X will also not be guilty of murder. A reasonable person in his position would have felt that an innocent third party (his daughter) was in mortal danger and lethal force was required to neutralize the threat. Note that the third party being protected should be a specific person or persons and not the community at large (which would be regarded as vigilantism).
In summary;
force, even lethal force may be used in Self-defence
the interest being protected should be proportional to the amount of force used
the attack should have commenced or be imminent (but not in the distant future or already have run down) and should be unlawful