By Miriam Tose Majome
MANY people long to possess guns or other lethal weapons for the purposes of self-defence and defending their property.
Firearms are only meant to be used for the purposes for which they are licenced. However, situations may arise that require using firearms on the spur of the moment such as in self-defence or to defend other people and property.
No licence to kill
The law does allow people to take reasonable steps to defend themselves or other people and their property against an unlawful attacks. Self-defensive measures may result in the death of the attacker.
It must be categorically stated from the outset that it is not allowed or excusable to kill intruders or attackers unless it is absolutely necessary. Victims of crime may find themselves in serious legal trouble and liable for murder or culpable homicide.
Murder is the intentional unlawful killing of another human being. Culpable homicide is unintentional unlawful killing of a human being. Culpable homicide usually contains an element of negligence.
Shooting to kill
If the attacker is killed during the act of self-defence the court will weigh all the circumstances of the attack and the self-defence measures taken.
Victims and potential victims of crime cannot simply shoot to kill assailants unless they have made reasonable attempts to avoid doing so as far as possible. The goal of self-defence is to defend oneself and not to kill.
If you wake up at 3am and stumble upon a stranger walking in the passage you cannot just kill him for trespassing on your property. If he attacks you or there is reasonable belief that he could attack you or your property you will be justified to take whatever steps necessary and practical in that situation even if it may result in their death.
If he starts to run away you cannot chase him and gun him down while he is in the act of fleeing.
The Oscar Pistorius case
The most sensational criminal case so far this century The State vs Oscar Pistorius 2013 presented useful insights into this issue. The celebrated award-winning South African “Blade Runner” shot and killed his girlfriend Reeva Steenkamp in the early hours of February 14, 2013 and was charged with murder.
He persisted with the defence that he thought it was an intruder so he acted in self-defence. He fired four shots through a closed door into the bathroom where he believed the intruder had hidden.
Action must be reasonable
There must actually be an unlawful attack which has commenced or is imminent. The self-defensive action taken must be necessary to avert the attack.
The action must be reasonable and commensurate with the crime or threat. These are some of the questions raised by the prosecution in the Pistorius case. Had there been an actual or attempted attack by the supposed intruder on either of the two people in the house?
Assuming there indeed had been an intruder was it necessary for Pistorius to shoot him as he did assuming he had run into the bathroom and locked himself in? Were four gunshots delivered at close range through a closed door commensurate with the level of threat presented? How dangerous was a criminal in hiding behind a locked door?
Spur of the moment choices
The trial court will go very far in establishing all the circumstances of the death. It places itself in the shoes of the victim and what a reasonable person would have done in the circumstances.
It factors the fear, pressure and danger they will be under noting the lack of the luxury of time to enable them to take the most appropriate course of action. In a life threatening situation retaliation with a dangerous weapon to ward off the attacker can be a sustainable defence.
If the attack is not serious or life threatening the victim is expected to act appropriately. As far as is possible the self-defensive action has to be commensurate with the attack or imminent attack in consideration of all the prevailing factors.
Preservation of life
It may appear as if the law seeks to protect attackers and intruders, but this is not correct. The law is simply concerned with preserving life. If it is possible and reasonable for the victim to run away then they have a duty to do so. This is preferable than to risk harm or loss of life.
It is justifiable if in those same circumstances the reasonable person would have stood his ground in order to protect himself and his property. A person is only deemed to have exceeded the bounds of self-defence if the action taken was not reasonable or commensurate with the attack or level of threat.
The value and importance of what is being defended is an important consideration. Killing in self-defence can only be justified if it is the only available option or the last resort.
- Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]