Guide: Legal requirements for deadly force with a firearm against a rapist

With 116 cases of rape reported every day in South Africa, it is quite safe to say that Covid19 isn’t the only pandemic spreading like wildfire through our communities. Sexual offences, very often lead to gender-based violence, domestic violence or worse, murder that can sometimes be classified as a case of femicide.

The most recent crime statistics released by Police Minister Bheki Cele, South Africa, in 2020, maintained the position of being the world’s most dangerous place for women to reside. The country thus is the rape capital of the world, according to Ian Cameron of Action Society. South Africa’s has about 132 incidents of rape per 100,000 people. Individuals like Tshegofatso Pule, Naledi Phangindawo, Alexia Nyamadzawo, Nolundi Dondolo and many others were victims of gender-based violence and were brutally murdered by their intimate partners.

Women should arm themselves as Cele lets rapists off the hook.

With a crumbling South African Police system under Cele, women in South Africa will pre-dominantly be required to protect themselves against these sexual predators and thugs roaming our streets. The question to be answered is: “Can I use my firearm with deadly force in self-defence against a rapist?” The answer is certainly yes, but within the limits of the law as discussed below.

What are the legal requirements to act in self-defence against a rapist?

The legal position is as follows:

The attack, being the act of rape, must be:

1. Unlawful of nature: Attempted rape or rape in itself is certainly unlawful in nature according to section 3 of the Criminal Law (Sexual Offences & Related Matters) Amendment Act, No.32 of 2007 which reads as follows:

“3.   Rape.—Any person (“A”) who unlawfully and intentionally commits an act of sexual penetration with a complainant (“B”), without the consent of B, is guilty of the offence of rape.”

2. Directly aimed at an interest which legally deserves to be protected: Your life, alternatively your bodily integrity of yourself or your spouse, children, or parents is an interest which deserves legal protection as these are basic human rights in terms of our Constitution.
3. Imminent and not yet completed: Unfortunately, you cannot act pre-emptive and in fear of a rape in the future. The perpetrator’s attack must be NOW! (S)He must be holding you down while undressing you or pinning you down with a knife.

Then, acting in self-defence with your firearm against the rapist, your act must also comply with the following requirements:

1. Must be directed towards the rapist directly, and not against someone else;
2. Your act of self-defence must be necessary to protect the interest that is being threatened, i.e., your bodily integrity or you right to life;
3. There must be a reasonable relationship between the attack and your defensive act: If the attacker attempts to kiss you, you cannot use deadly force against him. There must be proportionality between the attack and the self-defence act.
4. You must be aware that you act in self-defence.

Watch: Ladies, this is situational awareness -Women in Arms

Test to be applied by courts

The test to be applied by our courts to evaluate if your act of self-defence is justifiable in our law, is that of a reasonable person. The court would ask:

“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 against the rapist. 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 to use your firearm, or not.

In the judgement of S v Patel 1959 (3) SA 121 (A) the court said the following:

“The court must beware of being an arm-chair critic, and must take into account the exigencies of the occasion”

“An accused is entitled to an acquittal if there is an reasonable possibility that he acted in self-defence, considered in the light of all the foregoing principles.”

Lastly, it should be noted that when you exceed the parameters of self-defence, you become the attacker which could lead to you committing a crime yourself.

Now, let’s look at real life examples:

Example 1

You arrive home one evening after work. While sitting in your car waiting for the gate and garage door to open, someone breaks your car window, pulls you out and pins you down with a knife and starts to undress you. You realise that the attacker has the intention to rape you. On the ground, next to you, lies your handbag with your firearm in. You take you firearm out and shoot the perpetrator in self-defence. This would be 100% in line with the principles of self-defence and justifiable in law.

Example 2

You arrive home one evening after work. While sitting in your car waiting for the gate and garage door to open, someone breaks your window, pulls you out and pins you down with a knife and starts to undress you. You realise that the attacker has the intention to rape you. On the ground, next to you, lies your handbag with your firearm in. Suddenly your neighbour hears the screaming and runs towards you to assist. The perpetrator gets up and starts running away, where after you take your firearm and shoot him. This would not be acceptable in our law and could lead to criminal prosecution for attempted murder or even murder in itself.

Armed Township Communities are a National Security Asset

What are the first steps after acting in self-defence:

1. Once the danger has been averted, phone your attorney immediately for assistance. It is always advisable to keep you attorneys cell number on your phone.
2. If the danger persists, it is advisable to seek assistance from your neighbourhood watch, farm watch, neighbours, or security company.
3. Don’t tamper with the crime scene by moving bodies or placing knives in the hands of the rapist. If you are caught, this will only be to your detriment.
4. Brace yourself to be arrested and possibly taken to the police station to be charged. This seems to be standard practice by SAPS, even though the correctness thereof is debatable. Your attorney will assist you with applying for bail.
5. Lastly, and definitely the most important, make no statements about the facts of the matter without your attorneys’ guidance. Anything you say will be used against you in court, even if you are of the opinion that it sounds trivial of nature.

Section 35 of the Constitution reads as follows:

“35.  Arrested, detained and accused persons.—(1)  Everyone who is arrested for allegedly committing an offence has the right

• • to remain silent;
  • to be informed promptly—
  • of the right to remain silent; and
  • of the consequences of not remaining silent;

• • not to be compelled to make any confession or admission that could be used in evidence against that person; …

(3)  Every accused person has a right to a fair trial, which includes the right—

…

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;”

Murderers let off the hook by Ramaphosa & Cele without DNA-sampling

Conclusion

Court’s in South Africa have in the past voiced their opinion about sexual offences and the use of force as self-defence through judgements.

In the matter of S v Mokoena and another [1976] 4 ALL SA 200 (O), Judge Steyn said the following:

“Diegene wat die vrou se liggaamlike onmag wil uitbuit deur haar liggaam teen haar wil en sin te skend kan, na gelang van die omstandighede, selfs met dodelike middels afgeweer word”

Therefore, you are allowed to use your firearm with deadly force to protect yourself against a rapist, subject to your compliance with above rules. In the event that you find yourself in a position as above, it is advisable to seek professional assistance.

Written by Heinrich Gonzales, Director of HFG Attorneys Inc, partner at firearms.co.za and SAGA Trustee

Disclaimer

The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

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