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Can I Shoot?

A couple of weeks ago a church goer shot and killed two armed robbers in a church, mid service. Almost immediately the debate about whether his actions were legal and justified began.

At this point allow me to say that - based on my understanding of the law and as a legally licensed gun carrier - I found his actions to be 100% legal and correct.

As a seasoned private investigator and registered Close Protection Officer, I have made it my duty to understand the law of self-defence and lethal force as best as possible. However, there are still thousands of legal gun owners (many of whom carry their weapons everyday) who are still not sure when they are legally justified to use their weapons to defend themselves, their property, or others.

The obvious problem here is that one of two things then happen. Either they hesitate when confronted with a life threatening scenario and end up having an earlier than expected date with the big guy in the clouds, or they jump into action and find themselves standing before the old guy in the magistrates court.

Both scenarios are avoidable, if you understand exactly what the law prescribes when it comes to lethal use of force.

With this in mind, I found the following article written by Duncan Alfred, from News24 which very clearly provides guidelines on the topic.

 

Shooting a person who threatens your life seems like a clear-cut case, but legally, it's never that simple.

You can get into a lot of trouble if you can't prove lethal force was justified.

"The first is a statutory provision; that is, when you attempt to arrest somebody - as a citizen - who has committed a crime in your presence, and that person either flees or violently resists arrest. A person who flees may still constitute a serious hazard towards society, for example, when the person continues shooting while escaping - then you may use force, including legal force, to stop that person.

"In terms of common law, 'self-defence', as we commonly refer to it, can be used when there is an attack on yourself or someone else. If that attack is of such violent nature and the only way to stop that attack is to kill somebody, you would be entitled to do that."

Welch says, if an attacker were to enter a building such as a restaurant or, in Van der Westhuizen's case, a church, and that attacker used "assertive measures" such as brandishing firearms, knives or pangas, for example, then you would be entitled to use force.

He said:

But the force that you then use must be concomitant with the attack”.

This means that if the attacker does not use lethal force, in other words, your life is not in danger, you will generally not be entitled to use lethal force.

"It's difficult to apply that to a real-life situation because these things often happen within split seconds. But assuming that there was a violent, unlawful attack on people, then one would be entitled to use lethal force to defend oneself."

What happens to you when you kill someone in self-defence?

Welch says, where there is prima facie evidence that someone has acted in self-defence, the matter has to be properly investigated by the police and then the Director of Public Prosecutions [DPP] should decide whether they exceeded the bounds of self-defence, or acted outside the ambit of the law.

"If the person is found to have acted in self-defence, the matter will come to a close."

But, says Welch, in many instances, a case of murder is initially opened. "Even though the prima facie evidence points to the fact that you have acted in self-defence, you could still be arrested and prosecuted. 

"If you are arrested and charged, you may file a bail application at your first court appearance where your lawyer will make representations if he or she believes that you acted in lawful self-defence. If the DPP is satisfied with the evidence, you will not be prosecuted.

"However, should the DPP decide to prosecute, then the courts will make a decision on whether or not you should be acquitted."

You may use lethal force if...

  • The attack was already in the process, or it was imminent.
  • The attack was unlawful.
  • You were protecting your life, your physical well-being, property, personal freedom, your dignity or sexual integrity, provided that your life was under threat.
  • The act of self-defence was necessary to prevent the attack from escalating.
  • Your act of self-defence was directed only toward the attacker.
  • You didn’t have any time to resort to a different, less violent form of protecting yourself and your interests.

Can you shoot when you're scared?

Shooting somebody before they've done anything to threaten you is regarded as illegal. Being scared is not enough reason to act in lethal self-defence.

Recently, News24 reported on two incidents where fathers shot and killed their sons without first establishing whether there was any threat to their own lives.

Sibusiso Emmanuel Tshabalala shot and killed his son Luyanda, 16, at Fred Norman Secondary School in Ennerdale, southern Johannesburg, on 5 June 2018, believing he was a hijacker. Tshabalala was sentenced to 10 years in prison, which was suspended for five years.

Coert Kruger shot and killed his son - who he thought was a burglar - in March last year. Kruger received a sentence of eight years in prison, suspended for five years.

"Anyone carrying a firearm for self-protection must have had the best possible training, aimed at empowering one to be psychologically and physically prepared to face and deal with life-threatening situations," says Welch.

"Since the use of force during a violent confrontation requires split-second decision making, there is usually insufficient time to ponder all possibilities and alternatives and legal and other consequences. One therefore must have considered all these issues prior to taking up arms. Because when the high-risk situation arises, one needs to focus thereon only – nothing else. It is a matter of life or death – yours or the criminals."

Until we chat again keep safe, keep warm, and keep thinking.

Kyle Condon Grad I.S (SA)
 
Kyle is a 27-year veteran in the field of professional security consulting and personal protection training. He is a sought-after speaker both locally and internationally. Kyle is the owner of several risk management and investigation companies. His consulting services are available throughout Africa.

Kyle Condon
082 820 5363

For more information, contact Kyle Condon on saint@intrigue.co.za, follow him on Twitter @investigatorsZA or visit www.investigators.co.za.

About D & K Management Consultants CC

Established in 1993 by Declan and Kyle Condon – the legacy of the Condon family with their many years of investigative expertise still strongly governs the running of the company today.

Phone: 082 820 5363

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