When can you legally use your firearm for self-defence?
Making the decision to use your firearm in self-defence can have many unwanted legal consequences for you should you fail to adhere to the requirements of private defence (“self-defence”) as prescribed in our criminal law. To complicate the matter even further, applying the relevant law to the immediate life-threatening circumstances, while only having a split-second to decide, sounds virtually impossible.
Considering the recent KwaZulu-Natal (KZN) violence and South African Police Service (SAPS) subsequent inability to execute their constitutional mandate to protect us, it is quite clear that this obligation to protect ourselves and our loved ones are shifting our way.
In amplification to above, President Cyril Ramaphosa, in his recent cabinet reshuffle failed to restore the credibility of the SAPS by keeping Minister Bheki Cele in office.
Furthermore, government’s current attack on the firearm fraternity with the proposed amendment to the Firearms Control Act, clearly indicates that we are in the “firing” line of government.
Therefore, we must “play” by the rules of self-defence, or you will find yourself arrested and prosecuted for an offence.
When can I use my firearm in self-defence and what are the requirements?
- Firstly, the attack on you must be unlawful of nature. You cannot rely on self-defence as a ground of justification against lawful conduct. An example of this is when you attack a police officer who is authorized to arrest you or conduct a search with a warrant.
- The attack must be directed aimed at an interest which legally deserves to be protected. An example of this is the life and bodily integrity of yourself or your spouse, children, or parents. Both the right to life and bodily integrity is basic human rights protected by the Constitution.
- The attack must be imminent and not yet completed. Unfortunately, you cannot act pre-emptive and in fear of something that might happened in the future. The attack on you must be NOW!
Furthermore, your act of private defence (“self-defence”) must also be:
- Be directed towards the attacker directly and not someone else;
- Your act of private defence must be necessary to protect the interest that is being threatened;
- There must be a reasonable relationship against the attack and your defensive act. If the attacker only slaps you with an open hand, you are not allowed to use deadly force with a firearm.
- You must be aware that you act in self-defence.
If there is a life-threatening attack on yourself, or someone else like your spouse or children, and the only way to stop the vicious life-threatening attack, is to use a firearm with deadly force, it will be justifiable in our law.
The pre-requisite to use deadly force, is that your life or the life of someone else is threatened. Examples of such an attack would be for instance with firearms, axes, baseball bats, knives, panga’s, shovels or even a motor vehicle trying to drive over you.
It is quite safe to say that our courts will not accept that you acted in self-defence when using deadly force, only to protect your property. Your deadly force will be justifiable to protect you property only where your life or the life of someone else is also threatened at the same time
You cannot use deadly force if:
- Someone steals your wallet and runs away;
- You chase after burglars or intruders and decide to shoot at them;
Test applied by our courts
The test to be applied by our courts is that of a reasonable person and thus “whether the reasonable person, in the same circumstances in which you found yourself, would have acted in the same way as you did?”
If the answer is affirmative, you acted in self-defence. The court, when judging the merits of your case, will not merely be an armchair critic, but will attempt to place themselves in your shoes at the time of the incident and will consider that you only had a few seconds to make your decision whether use your firearm, or not.
Lastly, it should be noted that when you exceed the parameters of self-defence, you become the attacker which could lead to you committing and crime.
Therefore, the use of your firearm for self-defence purposes should be used as a last resort only to protect life.
Written by Hein Gonzales