Your questions about self defence answered
Senior State Advocate Deon van Wyk offered to answer readers' questions regarding the matter of defending yourself.
The Record recently published an article on self-defence and Senior State Advocate Deon van Wyk offered to answer readers’ questions regarding the matter.
Michael Goutier wrote: “I live in a freestanding house and over the last few weeks I have had two attempted break-ins in the early hours of the morning. On both occasions my outside beams were triggered, however, based on the reactions of the perpetrators, they were not overly concerned. It was only when I shouted and (in the most recent icnident) fired my paintball marker from outside my window in their direction that they fled.
Read the initial article here: Home invasions: What the law really says about self-defence (a must read)
“My concern is around the legal implications of me firing my paintball marker, as although it does not constitute deadly force the nylon pellets and pepper balls can hurt an individual.
“If there is an intruder on my property who has climbed my walls illegally, can I use my paintball marker with nylon pellets and pepper balls against the perpetrators to scare them off and if I happen to hit them with the balls and cause injury, what would the legal stance be?
“On another note, if the invaders had come into my house I would have used everything at my disposal to defend my family.”
Van Wyk answered:
“Thank you for an important question.
Upon considering the facts included in your question, it can be noted that:
1. The potential offences for which you might be held liable, if you acted without a legally recognised defence, would be assault/ assault with [intent to cause] grievous bodily harm and a contravention of section 120(1)(6)(b) of the Firearms Control Act 60 of 2000 which makes it an offence to: “Point anything which is likely to lead a person to believe that it is a firearm, an antique firearm or an air gun at any other person, without good reason to do so.”
2, Applying the law I have set out in the news article to your facts:
2.1. The suspects have gained unlawful access to your property. This already constitutes the offence of trespassing. They have advanced towards your home and in the process activated your beams, which I presume are linked to your alarm. This event did not deter them in any way. You shouted a verbal warning which had no effect on their advance to your house.
Analysis. In the absence of direct evidence, I am of the opinion that sufficient circumstantial evidence exists to, by application of inferential reasoning, determine that the suspects had a direct intent to steal and/ or to perpetrate housebreaking with the intent to steal, and theft. The unlawful nature of their conduct is beyond doubt as they ignored all efforts to deter them. This establishes an imminent attack and emergency. The latter is relevant to the defence of ‘necessity’ with which I did not deal in the article.
2.2. The sole aim of pointing and discharging the paintball marker at them is to prevent the inferred attack/ danger to your property and by necessary implication, you and your family’s safety. No paintball pellets were fired at them after they fled and/ or while they were fleeing. The discharge occurred at the time of their advance subsequent to a beam activation and oral warning NOT to proceed. The weapon used is non-lethal.
Analysis: On the facts, your home/ property and your safety are definitely interests recognised by law as sufficient to deserve protection.
3. In the light of these facts I am of the view that your conduct would be lawful in repelling the pending attack/ emergency as envisaged in terms of the dictates of the common law defences of private defence (self-defence) and necessity. If the facts show injuries to the backs of the suspects or loss of eyes etc., which could sustain an inference that they were fired at whilst fleeing, or as expression of anger or revenge, such conduct/ discharge of the marker would be unlawful.”
Jacques du Plessis wanted to know whether he is allowed to use his firearm, which was obtained for the purpose of sport shooting, to defend himself when he is travelling.
Van Wyk answered: “1. The provisions of section 15 of the Firearms Control Act 60 of 2000, in terms of which your firearm is licensed, inter alia provide that:
‘Section 15(4): A firearm in respect of which a licence has been issued in terms of this section may be used where it is safe to use the firearm and for a lawful purpose’.
2. The licence issued in terms of this section therefore allows you to possess the said arm in the manner prescribed by the Act, which includes that if carried on the person, it must be concealed. The Act only limits the use of firearms licensed to businesses, (licensed in terms of section 20 of the Act), to the exclusive purpose of the use authorised.
3. In the case of an unlawful attack and or imminent attack as I have dealt with in the media article, the use of your firearm within the framework of the principles of private/self-defence, will be lawful.
4. Thus, yes, you may possess the firearm by carrying it on your person in the manner in which the Act provides and yes, you may use it in self-defence in accordance with the principles as set out by law.”
Do you perhaps have more information pertaining to this story? Email us at roodepoortrecord@caxton.co.za (remember to include your contact details) or phone us on 011 955 1130.
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