04/02/2024
From Max at Motivus:
SERIOUS CONSIDERATIONS IN SELF-DEFENCE
So... there have been a lot of questions in the Motivus inbox regarding the lawful use of a firearm for self-defence purposes.
This is not a criminal defence service and is in no way held out to be a specialist criminal law authority. However , the basics should be common notoriety to all firearm owners who carry a firearm for lawful defensive purposes. Consult a specialist defence attorney for the clarification of any uncertainty that you may have in respect of self-defence and the consequences flowing therefrom.
First - three myths need their throats cut:
1. Criminals do not have more rights than lawful firearm owners. Once any human life has been taken (albeit a defensive shooting where a perpetrator of an unlawful attack is killed or injured), our SAPS have an obligation to investigate the circumstances. There is an excellent article by Paratus which deals with what to expect after a defensive shooting. But please - lose the mindset of "Ya but I can't use my firearm to defend myself because I'll go to jail". If your defensive shooting is justified by way of self-defence, putative self-defence or necessity - your prospects of successful defence against any charges concerning your conduct are high.
2. It is not law that a warning shot or less than lethal shot (ie legs, arms etc) must be fired before using lethal force (centre mass shots into the unlawful attacker's chest and abdomen). In fact - it is not recommended to waste your life-saving ammunition by discharging it prior to an unlawful attack which is imminent... Further, why would you want to give away your element of surprise? Once an unlawful attack has commenced against your person / another - your aim is to STOP / REPEL the attack using potentially lethal force (not to wound / kill the attacker - those are bi-products flowing from the use of potentially lethal force). Stopping an unlawful attack is not an exact science and don't let the stories around the braai fool you... there are a lot of factors which come into play once you commit to discharging your firearm to stop / repel and unlawful attack.
3. The Criminal Procedure Act does NOT deal with self-defence !!! Private defence and necessity stem from our South African common law and have been developed by our Courts.
I would like to cautiously embark on this journey by clearly defining (referred to as self-defence in the Fi****ms Control Act).
This is a defence against a charge of murder- which is the unlawful and intentional causing of death of a human being.
Private defence (Self-defence)
A person may use potentially lethal force against an attacker if:
1. there is an unlawful attack against you personally or another innocent by a third party (not your property- although there is case law regarding justified use of force for the protection of property - however, the circumstances were exceptional); and
2. the attack has commenced or is imminent; and
3. there is no other alternative but to use potentially lethal force and you cannot escape the situation; and
4. Your use of force must be of sufficient nature and extent to stop the unlawful attack against you (the aim is NOT to kill the attacker but simply to stop
the unlawful attack and its consequences – which may result in the
attacker’s death) - there is always a fine line between having successfully stopped an attack (the attack ceases) and using excessive force which fall outside of the realms of defence (but rather extend to ex*****on / murder of a person who is no longer perpetrating an unlawful attack against you).
If the justified defensive act culminates in the stopping of the unlawful attack perpetrated against you but the perpetrator is still alive - your next actions are crucial. You are entitled to deprive the attacker of access/control over his / her weapon by kicking it to the side and out of his / her reach whilst retaining your sight picture and keeping the sights on the attacker (this is reasonable practice considering that the unlawful intention of the attacker may not have been abandoned despite your convincing answer to it). Immediately contact an ambulance as well as the police and make it clear that you have used your firearm in self-defence and that the perpetrator is wounded and debilitated so that he / she may receive the necessary medical attention and so that the police may take the necessary steps. For more detailed information on the steps after a defensive shooting, when and if to make a statement and how to avoid contaminating and / or disturbing the crime scene - contact a criminal attorney specialising in defensive shootings. Also - what happens next with your firearm? What do you do with your firearm when the police arrive at the scene?
I personally put my trust in a colleague , Francois De K**k of Francois De K**k Attorneys in Pretoria. These considerations are absolutely crucial and a lot of firearm owners do not have a plan / know what to do.
His comments are as follows:
Any “defensive shooting” (whether you "defend yourself or another person) against an unlawful attack is legally considered “Private Defence”.
“Necessity” is something quite different, not applicable to the “typical” scenario of a defensive shooting.
“Private Defence” is when a person performs a defensive act AGAINST an UNLAWFUL attack, in progress or imminent, which is aimed against that person OR ANOTHER PERSON’S legally recognised interested (life, bodily integrity, etc). So if there’s a robber and you shoot him, its private defence, regardless of whether he threatened you or someone else.
“Self defence” is simply a layman’s term for the above, or a term for private defence in instances where you defended yourself (and not someone else).
“Necessity” is when a person performs a defensive (or necessary) act, IN DEFENCE OF a legally recognised interest, against a threat (BUT NOT NECESSARILY AGAINST AN UNALWFUL ATTACK), provided he is not legally obliged to endure the threat, and the interest protected is in proportion to the interest (of another and potentially) affected by the defensive act.
EXAMPLE: Someone is seriously injured. It is necessary to rush him to hospital. In the process, you exceed the speed limit. You are charged for exceeding the speed limit. You plead Necessity, because:
You performed a “defensive Act” in defence of a legally recognised interest (rushing him to hospital to protect his life). The interest (protection of life) is more important than the interest of the party affected by your actions (The State’s right to apply rules of the road, or the public’s right to have a safe road). You are acquitted, because it’s okay to break the rules of the road to save a life.
EXAMPLE APPLICABLE TO FI****MS:
I shoot a dog who attacks me. This cannot be private defence, because private defence requires an UNLAWFUL attack. Dogs aren’t humans and don’t have criminal capacity, so they can’t act unlawfully. It’s Necessity because I performed a defensive act against a (not unlawful) attack. I prejudiced the rights of the dog’s owner (by depriving him of his property), but my right to life or bodily integrity is considered more important.
Private Defence is always against an UNLAWFUL attack, while Necessity can be used against an “attack” which is not unlawful, or even where there is no attack (or fight) to speak of (from the person at which I aim my defensive act). Private defence must be aimed against the attacker, while necessity can be used where you performed a defensive act (or prejudiced) someone who was not he attacker, or who was not even acting unlawfully.
EXAMPLE: Someone threatens to kill me, unless I assault a third person. Truly (and reasonably) fearing for my life, I assault the third person. I am charged with assault. I can’t plead Private Defence, because there was no attack from the victim. I however defended myself against death by aiming the “defensive act” at an innocent person. I’m acquitted because my life is more important that the victim’s bodily integrity.
So essentially: With Private Defence I defend against an unlawful attact. He’s wrong, I’m right. With Necessity, I “choose between two evils” and will be acquitted if I chose wisely."
HOWEVER, in the case of using potentially lethal force in the case of private defence- always make the subjective decision asking yourself if you are certain that you wish to get involved in that other person's circumstances (that is a decision that each must make for themself) and remind yourself that your actions may result in expensive defensive criminal litigation (which is of course not the consideration when the other person is a family member and you are present- in most cases).
Situational assessment is also key at all times in assessing your defensive conduct ... when? if? how? risks? risks for others?
In both instances - defending yourself / another - it is crucial that you are certain that the conduct of the perpetrator constitutes an unlawful attack. It is important to familiarise yourself with conduct which is reasonably believed / certainly an unlawful attack against you personally / another person. Again - if uncertain - contact a specialist.
Another question is your personal proficiency in defending yourself without / or in the least possible degree causing unnecessary harm to innocents and bystanders.
Motivus strongly recommends attending self-defence proficiency training through REPUTABLE experts on the subject matter to enable you to submit yourself to your training. Preparation in respect of the law and physical/ psychological reaction and attendance training are extremely important. To list a few experts in these fields - you can consult with the guys and gals at Fortis, Bravo Tactical, Billy Rosslee at Magnum United, Armed Craft, Mark Human, Kembativ Concepts and a few others who have committed their lives to basic and specialist firearm training and who observe high standards which are internationally recognised.
The decisions are yours to make. Make sure they're informed decisions.
Motivus.
Thorough. Precise. Informed.
