Self-Defence and Your Rights
South Africans are no strangers to crime. With approximately 60 house burglaries taking place every day, home invasions are one of the most feared crimes in the country. However, when it comes to defending yourself against a home intruder, our legislation on the matter is rather confusing.
On the one hand, the law states that you should never inflict more harm on an attacker than is warranted. Essentially, this means you cannot legally use force (such as shooting or stabbing an intruder) unless the intruder poses a direct threat to you. However, the constitution does give citizens the right to protect themselves and their personal interests, so the general perception is that an intruder must face the consequences of his or her actions. And this leaves homeowners unsure about what their true rights are when confronted with a home intruder.
The legal description of private defence (or self-defence) is fairly straight-forward. According to Burchell and Milton’s Principles of Criminal Law (2005), private self-defence is when:
“A person who is the victim of an unlawful attack upon person, property or other recognised legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the court of such private defence is not unlawful.“
In practice it’s not so simple. When it comes to our courts, there are many more factors taken into account in order to declare an act of self-defence as legal. In most self-defence cases, a judge will apply the Reasonable Man Test - would any reasonable person have done the same in a similar situation?
THE LEGAL REQUIREMENTS
In order for you to justify your act of self-defence, the following legal requirements will have to be met and proven:
- The attack was already in the process or an attack was imminent.
- The attack was unlawful.
- You were protecting your life, your physical wellbeing, property, personal freedom, your dignity or sexual integrity.
- The act of self-defence was necessary to prevent the attack from escalating.
- Your act of self-defence was directed toward the attacker.
- The act of self-defence was reasonable and proportionate to the circumstances.
- You didn’t have any time to resort to a different, less violent form of protecting yourself and your interests.
These same legal requirements apply when you defend someone else against an attacker.
BUT WHAT IF I’M SCARED?
A so-called pre-emptive strike (such as shooting an intruder before they’ve done anything to threaten you) is regarded as illegal. Fear is simply not enough reason to act in self-defence during a home invasion. Once again, you need to meet the above legal requirements in order for a court to consider your claim of self-defence.
WHAT IF THE INTRUDER IS ARMED?
Once again, an intruder simply being armed does not justify an immediate self-defensive act. Instead, you need to firstly prove the intruder was in fact armed, and secondly that the intruder showed direct intent to use the weapon to harm you. According to legislation, you can only take action against an armed intruder once he/she physically tries to harm you or someone in your home.
Despite these strict legal outlines, you need to keep in mind that each case of self-defence is dealt with on merit. No two home invasions are the same, and no two people thinks or acts the same when faced with a threatening situation. Therefore, South African courts will always look at the bigger picture as well when making any decisions.
We have some tips on how to try and prevent a home invasion and how you can keep you and your loved ones safe.
Sources: Constitution of South Africa | Burchell and Milton’s Principles of Criminal Law (2005)