In South Africa, you have the right to defend yourself using deadly force if you have a reasonable belief that your life, or the lives of your family and community members, are under threat. However there are a few things to keep in mind before taking drastic action.
According to South African Criminal Law, the nature of the attack and the means used to protect assets or people, will be heavily scrutinised using the following rules.
1. The Attack
First, we need to define what an attack is according to the law. An attack can consist of a voluntary act of violence or intimidation. For instance, assault or threatened assault on a person, damage to or theft of property. An attack can also involve unwarranted search or entering of premises. Refusing to leave someone’s property after they have requested, can also be considered a form of attack.
The most important thing to consider is; was the attack unlawful? According to South African law, a person cannot defend themselves against a lawful procedure, such as an arrest (by the police or a lawfully carried out citizen’s arrest) or a search of their premises by the police.
It is also important to justify that the attack was unlawful. Assessing whether the attack was unlawful or not must be an objective test, meaning it is irrelevant if the attacker believes it was lawful or not.
It must be an attack against a legal interest
For example, to protect:
- Life and limb from injury,
- Property from damage or theft,
- Against unlawful arrest, search, or imprisonment,
- Against attempted rape,
- Against injury to dignity such as verbal abuse.
Any defence should be done in the interest of the defender or another person
An act of private defence against an unlawful attack by a third person, for instance, a security guard or a good Samaritan, will be treated in the same way as if they were defending their own person, property, or interests.
The attack must have commenced or be imminent
Private defence must be aimed at an attack which has already begun or is imminent, taking into account all the surrounding circumstances.
2. The Defence
The following need to be considered in an act of self defence:
The actions must be directed against the attacker
It goes without saying that, when defending against an attack, all actions must be directed at the attacker. Any injured third party or unnecessary damage to property, could render the act unlawful.
The act of defence must be necessary to protect an interest
Defending with force must be the last resource to protect yourself and others when no alternative solution is immediately available. The basis of the decision to act must be one of reasonableness under the circumstances.
Reasonable means must be used in the defence
An inquiry into the force necessary to repel an unlawful attack is dependent upon the reasonableness necessary under the circumstances to deter the attack, not on the nature of the threatened harm, or whether other methods of defence might have worked. For example, the nature of the weapon used in the attack, the relative physical strength and number of attackers and defenders, the age of the defender, and the general nature and extent of the danger have all been considered by the courts in ascertaining reasonableness.
The lawfulness of the conduct of the defender is also dependent on whether the motivation for the conduct would have been shared by a reasonable person, even if it is mistaken, provided a reasonable person would have reached the same conclusion.
Excessive defence may result in criminal liability for assault, culpable homicide or even murder, for example, if the defender was negligent and should have realised that the defence was excessive (culpable homicide) or intentionally used more force than reasonably necessary to repel an attack and the attacker died (murder).
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