I recently read an article about warning shots in South Africa. I was shocked at some of the advice given by police officials. One police officer made a blanket statement to an online newspaper that South Africans can fire warning shots at robbers. In my opinion, that statement is way too general. It can easily be misinterpreted to mean that South Africans can use warning shots to deter even misdemeanors. I felt obligated to write an article to shed more light on the question: “Is it legal to fire a warning shot in South Africa?”
According to the Firearms Control Act, it is an offense to discharge a firearm in a built-up area without good reason to do so. Under particular circumstances, it would be legal to fire a warning shot. However, a warning shot should be the last resort before using lethal force against a criminal. Firing a warning shot at intruders without establishing if they pose a threat to life could easily be considered negligent in a court of law.
A warning shot should be used with extreme care and only as a last resort before using actual lethal force against the attacker. While public statements have been made by police representatives that warning shots are legal, it is important to know that firing a warning shot does not come without consequences.
Furthermore, even if you have good reason to fire a warning shot, you are still fully liable for any damage that the bullet may cause. Read on as I explore these issues more.
When is it legal to fire a warning shot in South Africa?
Please keep in mind that this is not legal or tactical advice. Everything in this article is my personal opinion, my personal interpretation of the law, and statements made by officials and other legal representatives.
Firing a warning shot is legal in South Africa if there are no other options to deter a potentially life-threatening attack, according to a statement made by SAPS Sergeant Tshepiso Mashale. However, firing a warning shot will have legal consequences, so it should only be implemented as a last resort.
In an article published in the Witness in December 2017, Captain Gay Ebrahim of Mountain Rise police was quoted saying “if there is a robbery in progress, the homeowner may fire a warning shot to try to scare off the criminal.”. In my opinion, that is a dangerous statement to make. She went on to say that “if the intruders ignore the shot and continue to rob the home, the resident could shoot at the intruders but not with the intention to kill the robbers.”
“shooting at the intruders”, even without the “intention to kill”, may result in one of them inadvertently being struck. Suppose the robber who gets struck posed no immediate threat to someone’s life. In that case, you will have little to no chance of convincing a court that you shot in self-defense and would be criminally liable for the shooting.
IS THERE A LEGAL REQUIREMENT TO FIRE A WARNING SHOT, BEFORE SHOOTING IN SELF-DEFENSE?
There is no legal requirement to fire a warning shot before resorting to using lethal force against an attacker. However, if at all possible, firing a warning shot could ward off a potential attack, as well as be counted in your favor in court. The firing of a warning shot demonstrates that you did all you could to ward off the attack before shooting in self-defense.
Having said that, just because a warning shot is allowed under the law does not mean that you must fire a warning shot if your life or someone else’s life is in imminent danger. In fact, attempting to fire a warning shot when you are being attacked may cost you precious time that may result in your death.
WHEN IS IT ILLEGAL TO FIRE A WARNING SHOT?
There are no hard and fast rules here, however, the act is clear – “It is an offense to discharge a firearm in a built up area”.
If you are charged with discharging a firearm in a built-up area, you will have to convince a court that you had good reason to do so. Common sense prevails here. Firing a warning shot simply because you heard a noise in your house would be a pretty pathetic reason – mind my frankness.
Firing a warning shot down the passage to ward off an intruder armed with a knife might be considered a “good reason”.
When should you fire a warning shot?
Legalities aside, should you fire a warning shot? Is it practical and safe to fire a warning shot? There are many factors to consider, and really, warning shots are rarely practical or safe. However, hypothetically speaking, when would a warning shot be a good idea?
You’ll have a hard time explaining to a court that hearing a noise in the middle of the night was a “good reason” to fire a warning shot. On the other hand, if you fired a warning shot that subsequently deterred an intruder armed with a knife, and you couldn’t escape, that may likely be considered a “good reason to do so” by the courts.
In the latter example, you have avoided having to use lethal force against the intruder. You have saved yourself a lot of time and money in the legal process, as well as the trauma that comes with taking a life. In the eyes of a court, you have demonstrated that you have done all that you can to avoid bloodshed. Furthermore, if the intruder (for some stupid reason) ignored the warning shot and attacked you., you ended up taking his life in self-defense, the fact that you fired a warning shot may be counted in your favor.
When should you fire a warning shot? Well, I will not tell you when you should, or when you shouldn’t, that is up to you. I will, however, tell you that if you do decide to fire a warning shot, you must be sure that there is “good reason to do so”, that you are not putting your life in danger by delaying your justified act of self-defense, and that the warning shot is fired in a guaranteed safe direction.
Is it safe to fire a warning shot?
While I will describe when it is safe to fire a warning shot, I am in no way condoning the use of warning shots. Having said that, when would it be safe to fire a warning shot?
In short, it would only really be safe to fire a warning shot if:
- Firing a warning shot does not delay your defensive action, putting your life at risk.
- You can fire the shot in a safe direction.
- And, if you have “good reason to do so”.
1. IF YOU AREN’T PUTTING YOUR LIFE AT RISK WHERE A WARNING SHOT DELAYS YOUR DEFENSIVE ACT
If the attack is immediately imminent, there may not be enough time to fire a warning shot without putting your life at risk. In this case, if you are justified, it would be better to exercise your right to self-defense by lethal force.
2. IF YOU CAN FIRE A WARNING SHOT IN A SAFE DIRECTION
You are solely responsible for the shot. Suppose the shot is fired in an unsafe direction and kills or injures a person, or damages property. In that case, you will be fully liable for the damages. Make sure you fire the shot in a direction where the bullet is guaranteed to stop. Soft ground, for example, would do well to stop a bullet safely. Keep in mind that hard surfaces can cause ricochets and should be avoided.
3. IF YOU HAVE “GOOD REASON TO DO SO”
This point has more to do with “legal safety” than with the physical safety of firing a warning shot. Firing a warning shot without having a good reason to do so is an offense under the Firearms Control Act. If you fire a warning shot, you have just discharged a firearm in a built-up area, which is an offense in South Africa if there was no “good reason to do so”.
What happens after you fire a warning shot?
THERE IS A GOOD CHANCE YOUR FIREARM WILL BE TAKEN IN FOR BALLISTIC TESTING
Suppose the round that you fired cannot be accounted for. In that case, the police may need to take a ballistic sample by taking your firearm into evidence. This is so that it can be matched to any potential instances in which the bullet inadvertently struck another person or property.
Even if you convinced the police that you had a good reason to fire a warning shot, there is still a chance that your firearm will be taken away from you for ballistics testing. Yes, the firearm will be returned to you. However, you will be left unarmed for a substantial period, possibly months.
THE PERSON WHO YOU WERE WARNING WITH A SHOT MIGHT FILE A POLICE REPORT AGAINST YOU
Remember, if you fired a warning shot, and if there was no good reason to do so, you could put yourself at risk of being charged with “pointing of a firearm”, “attempted murder,” or “discharging a firearm in a built-up area”. This is why it is crucial that you immediately report the incident to the police. You do not want the criminal to beat you and try to paint you as the criminal.
YOU MUST REPORT THE INCIDENT TO THE POLICE AS SOON AS POSSIBLE
You have just “discharged a firearm in a built-up area”. While you might be tempted to keep silent about it, you can be sure that neighbors and witnesses might if the criminal does not report you.
Summary
A quick search online will expose the two polar opposite stances regarding whether a warning shot is legal or not. And whether firing a warning shot is a good idea or not, regardless of being legal to do so.
The Firearms Control Act is clear where it states that it is an offense to discharge a firearm in a built-up area. It goes on to say “without a good reason to do so”. Now, each person might interpret this differently. Each person will have to answer for their own actions in a court of law – but I personally believe that firing a warning shot to deter a serious confrontation is a perfectly reasonable thing to do.
One needs to bear in mind that proportionality will be the most significant deciding factor whether or not your actions were reasonable. Firing a warning shot simply because an intruder in your garden is not proportional to the threat. However, firing a warning shot to deter an intruder armed with a knife might be considered reasonable, depending on the circumstances.
Another argument against warning shots is that if you are justified in firing a warning shot, you are also justified in shooting in self-defense. This might be true in some situations, but in others, there might be sufficient time to fire a warning shot to deter a potentially violent confrontation altogether. Sure, if firing a warning shot might cause you to delay your defensive action putting your life at risk, then, by all means, do not delay your defensive action.
There is no legal requirement to fire a warning shot before shooting in self-defense, but doing so will show a court that you exhausted all avenues in deterring the attack, and will be counted in your favor.
Whether or not you decide to fire a warning shot, it is vital to keep in mind that you are fully responsible for the damage caused by the shot, including loss of life, injury, or property damage. You will be held accountable for every shot fired.
Before firing a warning shot, make sure you aren’t putting your life at risk by delaying your defensive action. Make sure you can fire the shot in a safe direction and be absolutely sure that you have a good reason to “discharge a firearm in a built-up area”.
It is also important to remember that firing a warning shot may result in your firearm being taken away from you temporarily for ballistic testing so that if your bullet caused any damage or injury, it could be matched to your firearm. It would be wise to report the incident to the police as soon as possible