South Africa has one of the highest home invasion rates. In fact, South Africa has the 11th highest burglary rate in the world. This means the chances of your house getting broken into is relatively high. This poses an interesting question for firearm owners in South Africa – Can you shoot an intruder in South Africa?
In South Africa, you are allowed to shoot an intruder if they pose an imminent threat to your or another person’s life. Shooting an intruder is strictly limited to defending human life. The intent should be strictly to repel or prevent an imminent life-threatening attack. You may not shoot an intruder for simply trespassing or stealing.
There are no hard and fast rules when it comes to shooting an intruder in your home. Instead, the courts will ask, “What would a reasonable man do in the same situation”, and whether it was absolutely necessary to shoot the intruder.
So it goes without saying that each case will be dealt with individually based on all the factors. But, let’s consider the basics and discuss when shooting an intruder would be justified. How to avoid a confrontation in the first place and look at whether or not someone can shoot an intruder in defense of property.
When can you shoot an intruder in South Africa?
Shooting (or not shooting) an intruder in self-defense can both carry dire consequences for a victim. If the victim errs on the side of caution, they could lose their life, and if they err on the side of using deadly force (shooting), they could lose their freedom and end up in jail.
You may only shoot an intruder if they attempt to, or are attacking you, and:
- The attack against you or another person is unlawful.
- The attack is imminent or has already begun.
- The attack must not be complete, shooting should only be to REPEL the attack.
- The use of deadly force must be directed at the attacker
- The use of deadly force must be proportionate to the attack.
1. The attack must be unlawful
What is the difference between a lawful attack and an unlawful attack?
A lawful attack might be when someone is using force in self-defense, or perhaps a police officer using force to effect an arrest. For example, you may not defend an attacker by shooting his victim, while the victim is shooting his attacker in self-defense. Similarly, you may not use lethal force against a police officer who is “lawfully attacking” an armed criminal.
Let’s consider a hypothetical scenario. Your best friend, let’s call him Jaco, gets into an argument at a braai and launches a violent attack against a stranger, whose name is Sarel. Jaco’s intent is clearly to seriously injure or kill him.
Sarel is legally allowed to use deadly force to defend himself. Now let’s say Sarel pulls a gun out and tries to shoot your friend Jaco in self-defense. Sarel is launching a lawful attack, and you may not defend your friend, Jaco, by shooting Sarel.
|“A person who is the victim of an unlawful attack upon person, property or other recognized legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the course of such private defence is not unlawful.”|
Burchell and Milton Principles of Criminal Law (2005), Page 230
2. The attack must be imminent, or have already begun.
Let’s imagine another scenario. You hear a noise in your house. You arm yourself and proceed to investigate what caused the noise. You walk into your living room and see two intruders rushing towards you with knives – an attack is imminent! You open fire at them, injuring one who falls to the floor, unable to move, while the second intruder flees. The attack was imminent, and you would be justified to shoot the intruders in self-defense. However, at this point, you have sufficiently repelled the attack, and you may not fire shots at the intruder who is fleeing because he is no longer a threat. You may also not shoot the injured attacker again if he is no longer a threat to life.
You may not shoot an intruder unless it is evident that an attack is imminent and the use of deadly force is immediately necessary. In other words, you cannot shoot an intruder to prevent a future attack. An example of an imminent attack (an attack about to take place) would be when an intruder draws a handgun and proceeds to raise it up towards you. Another example would be if an attacker pulls out a knife and runs towards you.
|“…The actions of the attacker posed an immediate threat to the bodily integrity and the life of the man and his wife. The appellant was entitled to use all his strength and remedies he had at his disposal, even if these remedies meant that his attacker would die in the process. There was no duty on the appellant to wait until his attacker first physically harmed him, or to ask him what the purpose of his visit was, before he defended himself.”|
S v Mokgiba 1999 1 SACR 534
CAN YOU USE DEADLY FORCE AS SELF-DEFENSE WHEN AN ATTACK IS NOT IMMEDIATE?
It is undoubtedly possible for situations to exist where an attack is not necessarily imminent or immediate, where the use of lethal force in self-defense is justified.
|“there is no formal requirement that danger be imminent. Imminence is only one of the factors which the jury should weigh in determining whether the accused had a reasonable apprehension of danger, and a reasonable belief that she could not extricate herself otherwise than by killing the attacker.”|
R v Patel 1994 87 (CCC) 3d 97 (SCC) 8
Consider this hypothetical example: An extremist kidnaps a woman and holds her hostage. The kidnapper informs her and the public that in precisely 3 days, she will be executed. Should the hostage wait until the last minute to take action against her kidnapper, where she has little to no chance to survive? Or would she be justified to use deadly force to defend herself days before her execution date, knowing that her execution is inevitable, unavoidable?
In the case R v Lavallee 1999 55 CCC (3d) 120, a similar reasoning was used, stating that: “Due to their size, strength, socialization and lack of training, women are typically no match for men in hand-to-hand combat … therefore she need not wait until the physical assault is ‘underway’ before her apprehensions can be validated … it would be tantamount to sentencing her to ‘murder’ by instalment.”
3. The attack must not be complete, shooting an intruder should only be to REPEL the attack.
A person who has just been attacked might be tempted to pursue the intruder. However, if you pursue an intruder and end up shooting them, you might find yourself in a heap of trouble.
You may not pursue the attacker to shoot them after the attack has been sufficiently repelled. The use of deadly force in self-defense must occur immediately before or during the attack. You may not shoot an intruder after the attack has taken place. Doing so will be considered retaliation or revenge.
For example, let’s imagine you are at home. An intruder breaks in and stabs your wife as she tries to prevent him from entering the front door. Your older son rushes in with his cricket bat. He manages to strike the attacker in the head, rendering the attacker disoriented enough that you can subdue him and tie him up. At this point, the attack has been sufficiently repelled, and you may not continue to use force against the attacker because he is no longer a threat to life.
4. The use of deadly force must be directed at the attacker.
The act of defense (shooting) may only be directed to the attacker. You may not shoot the attacker’s accomplice.
5. The use of deadly force must be proportionate to the attack.
Proportionality is one of the most significant controlling principles on the right to use deadly force against an attacker. You cannot use excessive force, which is more force than necessary, to repel an attack.
|“Self-defence requires proportionality, in the sense that the harm caused must not be disproportional to the harm prevented.” |
Battered Women and the Requirement of Imminent in Self-Defence, S Goosen, Page 23.
The level of force used must be reasonably proportionate to the attack. For example, if someone slaps you, you cannot shoot that person in self-defense, and if someone simply punches you, you may not shoot in self-defense. However, if the attacker is a trained MMA fighter whose intent is to cause you grievous bodily harm, shooting the attacker in self-defense may be justified.
|“A person who is the victim of an unlawful attack upon person, property or other recognized legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the court of such private defense is not unlawful.“|
Burchell and Milton’s Principles of Criminal Law (2005)
What precautions can you take before resorting to shooting an intruder?
Shooting an intruder should always be an absolute last resort. Where possible, other steps should be taken to repel or prevent the attack before shooting an intruder. Some of these might include, but are not limited to:
- Attempting to escape the situation
- Locking inter-leading doors or security gates, locking yourself in a safe part of the house.
- Pushing the panic button on the house alarm
- Contacting the police
- Warning that attacker that you are armed
- If necessary, fire a warning shot
Implementing as many of these preventative measures before deciding to shoot an intruder shows the courts that you did all you could to avoid using lethal force in self-defense.
Attempting to escape from an intruder is not a legal requirement, but it may be a better and safer option. After shooting an intruder, previous attempts to escape will prove to the court that you avoided the confrontation as best you could.
Another measure you can take is locking any inter-leading doors or gathering your family into a single room with a strong door between you and the intruder. If the intruder is armed and attempts to break through the door, you would be justified to use deadly force in self-defense because an attack is imminent.
It would also be wise to immediately hit your alarm’s panic button and call the police. Sure, not all of these actions will be possible in the heat of the moment. Still, any attempts that you take to avoid the use of deadly force will be taken into account, and counted in your favor should the situation arise that you shoot an intruder.
If you do find yourself in that situation, and if the circumstances allow, you could warn the intruder that you are armed and that you will shoot in defense or fire a warning shot if necessary. But bear in mind, if you do fire a warning shot, your firearm may be taken in by the police service as evidence, and an investigation will be opened. If you are not guilty of any negligence in the event, then your firearm will be returned to you. However, this process can take months, leaving you unarmed for an extended period.
Can you shoot an intruder to defend your property?
The right to property is a fundamental human right engrained into the constitution of South Africa. Still, it so is every individual’s right to life, including the intruders. In cases of house robberies involving intruders who are trying to deny you your right to property, an inevitable question is posed – does the right to property supersede another’s right to life? Even though the South African Bill of Rights doesn’t define a hierarchy of rights, you will have a hard time convincing the court that your new flat-screen TV is worth more than another person’s life.
In South Africa, one can not simply shoot an intruder in defense of property. While every South African citizen has a right to property, each citizen also has a right to life. There is no hierarchy in the South African Bill of Rights. Still, you will have difficulty convincing the court that your right to property superseded the intruder’s right to life.
Anton du Plessis from Bregman Moodley Attorneys explains: “If during your lawful attempts to prevent the theft, the thief retaliates and poses a threat to your life or anyone else, only then would you legally be entitled to use necessary force to defend yourself or others.”
|“Certainly, an owner who is confronted by a robber is not expected to abandon his property. He is entitled to protect it, and the court will consider all the circumstances when deciding whether the means of defending the property were reasonable.”|
Anton du Plessis – Bregman Moodley Attorneys, WHEN CAN YOU SHOOT TO DEFEND YOURSELF?
However, you will have to convince the court that your intentions were to retrieve the stolen goods and not to hurt the thief. You will also have to convince the court that the goods were significant and justified the pursuit under the proportionality test. Even so, it would be better to err on the side of caution for both legal and physical safety reasons.
Every case will be judged separately, but legally, the safest course of action would be to avoid shooting until all other options have been exhausted. It is always best to avoid an intruder. It could save your life and keep you out of trouble!
Can you shoot an intruder in South Africa? The answer is not as simple as the question. Shooting or using any form of deadly force against an intruder may only be in self-defense. Only if an intruder poses an immediate threat to you or someone else’s life may you use deadly force. Such force may only be utilized to stop the attack immediately before or while it is taking place.
If a person ends up shooting an intruder, they will have to convince the court that using deadly force was absolutely necessary to prevent a violent attack against you, or your loved ones, or another innocent person.
For the shooting of an intruder to be justified as self-defense, the use of deadly force may only be against an attacker where the attack against you or another person is unlawful. The attack must be imminent or have already begun. However, there are exceptional circumstances where a pre-emptive attack may be justified, as I explained earlier in this article.
You may not shoot an intruder after he has attacked you or a loved one or after the attack has been successfully stopped. The use of deadly force must be directed at the attacker only.
Lastly, the use of deadly force (shooting), should be proportionate to the attack. For example, you may not shoot someone who has simply slapped you. This does not necessarily mean that your attacker must be armed before you can shoot them. However, you should be able to justify why you felt it was absolutely necessary to shoot the attacker to prevent an attack that might have resulted in grievous bodily harm or death.
Shooting in self-defense can result in very costly legal processes and puts you at risk of being criminally charged if you did not act “reasonably”. It goes without saying that shooting an intruder or an attacker should be an absolute last resort if at all possible. It will be wise to take other precautions before resorting to deadly force, such as attempting an escape, locking yourself and your family in a room where you are safe, pressing the panic button on your alarm system, calling the police, and if necessary, fire a warning shot.
There is no requirement for you to do any of the above if it places you or your loved ones’ lives at risk.
Furthermore, while using force to defend property is allowed in South Africa, the actions must still pass the proportionality test. You will have a hard time convincing the court that the value of your flat screen with worth more than the life of an intruder.
Have you ever had to use your firearm against an intruder?
Have you ever used your firearm against an intruder or know of someone who has? I would personally love to hear your story, and so would my readers. Let us know in the comments section below! (if you are worried about making the info public, feel free to comment using an alias or a nickname)