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The question “Can my wife use my firearm if I’m not at home and there is a trespasser” is often asked, with just as many debates around the issue following.
The first thing that must be understood is that this is not a negotiable or debatable issue, but a case where the Law of the country, in fact the Constitution of the Republic of South Africa would have the final and binding answer. The law has equal application to the firearm owner, the spouse and the person breaking into your house.
The right to life, enshrined in the Bill of Rights, is supreme and eventually it boils down to whether you or your spouse are ready and willing to take a human life and live with the personal, legal as well as spiritual and moral consequences of it.
Who may legally own a firearm in South Africa
South Africa’s current firearms regulatory framework consists of the Firearms Control Act of 2000 (FCA) and subsidiary legislation. A license must be issued for every firearm owned and to obtain a Competency Certificate and apply for a firearm licence, a person must be:
- A citizen or permanent resident of South Africa
- At least twenty-one years old
- “Fit and proper” for the specific license
- Stable and without a tendency for violence
- Not having a substance-abuse problem
- Have no conviction within the five years preceding the application for crimes related to violence, dishonesty, recklessness or instability
- Not “become or been declared unfit to possess a firearm” within the five years preceding the application
- Able to prove that he or she completed the required tests on understanding the FCA, the training and test for the safe and effective use of a firearm, and all applicable training and tests for the specific license.
What does the Firearms Control Act says about the use of firearms
A person owning a firearm for self-defence can only use the weapon to defend his or her life against an unlawful attack.
Pointing a firearm at someone or discharging it in public can lead to criminal charges and the person can lose his or her licence. Hence the question to answer is when self-defence can be claimed.
Owning a firearm for self-defence puts a huge responsibility on gun owners who want to be adequately prepared to defend themselves or their loved ones during an attack.
Any person whose life is threatened is lawfully entitled to use the necessary force to defend themselves – even if it results in the attacker being injured or killed. The important thing is that the force may not be excessive but be proportionate to the attack, otherwise you become the attacker and guilty of assault.
When considering if defence is proportionate to the attack it doesn’t imply that the same weapon or type of force must be used. Being hit in the face would normally not permit you to shoot in self-defence but if you are attacked by a violent but unarmed group of attackers, shooting in self-defence could possibly be justified.
The simple legal answer on the original question is that if your spouse is not officially proficient or has a competency certificate of his or her own to use that specific type of firearm, they may not handle it or even have access to it under the Firearms Control Act.
If you, as owner of the firearm, have done your competency certification and have a licence for a firearm you already should know that.
I is also clear that neither you, nor your spouse may just shoot anyone who comes into your home. The law clearly states that a mortal threat must have already commenced or be imminent, meaning that you, as a reasonable person, must be pretty sure that the attacker’s intentions are illegal, against your life and those you protect and are really going to happen.
Shooting must be an absolute last resort and the shooter must be mentally and physically prepared for it.
Circumstances under which it may be possible to use a spouse’s firearm
There is however a clause in the law that would allow your spouse to legally have co-use of your firearm.
This however entails that she or he will first have to pass an official training course, proficiency test and receive a competency certificate.
Once this is obtained, there is no negative legal implication for her or him using your firearm. If you feel that it is important for your spouse to be allowed to legally use your firearm, this would be the avenue to explore.
If you have the means, it would probably then be good to get your partner or spouse his or her own firearm and become licenced to use it. This may be a firearm they are more comfortable to handle and shoot with.
An application on grounds of the fact that you are away from home and they have to protect the family, should be enough motivation for a licence to be granted, after following the correct procedures.
What would the consequences be when a spouse uses a firearm
If you, or your spouse shoot anyone dead in self-defence a case of murder will be registered, and you will have to explain your actions. Even if the person was just wounded or just shot at, a case of attempted murder can still be opened since using a firearm is seen as lethal force.
An investigation will take place for the State to determine that no unlawful action took place. So, if your spouse was not officially proficient or had a competency certificate of his or her own to use that specific type of firearm, they were not allowed to use it under the Firearms Control Act and can await serious trouble.
So how could a spouse, wife and children defend themselves in a dangerous situation
The best would be to have some more contingency plans in place. You have to have a plan your children will understand and respond to on instructions and your family should be ready to retreat to a safe place. There is hardly anything worth stealing from a bathroom and that is often the best possible safe room in a house.
Secure the bathroom door with dead bolts and use it as a safe room to get in, lock yourself inside and stay down until help comes. Have an emergency phone ready to take it with you so that you can make calls and if there are attempts to open the door you can shout at the top of your voice that the person should leave since you have a gun. If you were able to get your spouse’s gun and take it with you and feel comfortable enough to shoot some warning shots into the ceiling, a perpetrator would probably not stick around at the sound of gunshots.
The biggest responsibility all of us face, before we go anywhere near pulling a trigger, is to create a safe and secure environment that is as difficult as possible for a criminal to penetrate.
Criminals usually target a house that offers the best opportunities and the least resistance. Make sure that you secure your property to the best of your ability so that it would hardly ever be necessary for a spouse – specially a wife, to abandon her children in a dangerous situation to have to approach and confront a trespasser.
The fact that she may (or may not) use your gun is irrelevant almost irrelevant since it can be taken off her, used on her and end up stolen.
A good principal and motto may be to strive to prevail and not just survive. Survival implicates that you are alive but had a very narrow escape, while prevalence means you walked out healthy, lawful and ethical as an empowered and righteous person.
May a spouse legally own a firearm in South Africa?
Yes, if the spouse is a citizen or permanent resident of South Africa and at least twenty-one years old, he or she can follow the lawful procedure to obtain a competency certificate and licence to own a firearm.
Does the Law allow two people living together to use a firearm under one licence?
No, the Firearms Control Act and regulations prohibits any person who is not officially proficient or has a competency certificate of his or her own to use a specific type of firearm, to handle it or even have access to it.
Does the law allow a wife with children to use her husband’s firearm to shoot a trespasser?
No, except in the case where she is officially proficient or has a competency certificate of her own to use that specific type of firearm.
Will a spouse be charged with murder or attempted murder if he or she shoots a trespasser with his or her spouse’s firearm?
If you, or your spouse shoot anyone dead in self-defence a case of murder will be registered, and you will have to explain your actions in an investigation. Even if the person was only wounded or just shot at, a case of attempted murder will probably still be opened since using a firearm is seen as lethal force.
An investigation will take place to determine that no unlawful action took place. So, if your spouse was not officially proficient or had a competency certificate of his or her own to use that specific type of firearm, they were not allowed to use it under the Firearms Control Act and can await serious trouble.