What recourses do I have if I find somebody entering my home illegally? How can I protect myself? South African Law currently makes provision for individuals to employ force and even deadly force in order to protect life, property and all other rights therein. However, the Law is very clear that there are requirements stipulating in which circumstances a person may protect him or herself from danger.
Whilst we are entitled to safeguard our property and family, such protection is still subject to the parameters of Law and is limited as far as it does not infringe upon someone else’s liberty and rights to life.
Firstly, given the above, it is then easier understood that one cannot simply shoot an intruder who has entered your premises unlawfully as they have rights too, regardless of how difficult it is to wrap your head around this.
Secondly, when using a firearm, same needs to be used to ward off danger or with cause to protect others in the form of private defence or yourself (otherwise known as self-defence) in the face of imminent danger. What we may regard as imminent danger may differ from person to person.
WHAT CONSTITUES SELF-DEFENSE IN THE EYES OF THE LAW?
- The attack against you must be unlawful. The attacker must be entering your property illegally, for example, a home invasion or house burglary.
- The attack must be occurring when the defensive act is committed. Your response to the attack must be while the attack is still occurring. You cannot go to your attacker the day after the attack occurred to attack him/her. This will amount to assault and self-defence cannot be used as a legal defence in Court.
- Your defensive act must be directed towards your attacker. You cannot attack a third party related to your attacker as a means of self-defence.
- Your defensive action must be proportionate to the attack received. Therefore, when applying deadly force, the attack received must also be deadly in nature. For example, when somebody slaps you, you cannot shoot the person and claim it was self-defence.
Remember only in certain rare instances will it be justifiable to shoot at an intruder and often it is limited to imminent life threatening instances whereby the intruder was attacking you or armed with a gun ready to shoot you. In situations where there is no alternative but to act immediately, it is lawful for threatened individuals to resort to private self-defence. Should you be in a situation whereby your attacker is unarmed but about to attack you, you are entitled to shoot your attacker to subdue them. Often this is done by shooting them in the knee, leg or arm, away from the chest or head which are often regarded as “fatal shots”.
As an accused it is important to ensure that you are always legally represented in any criminal proceeding, because as an ordinary lay person you may not be well versed in terms of the Criminal Procedure Act 51 of 1977 which governs criminal proceedings. Nor would you have the insight as to the various options available to you regarding plea bargaining, diversion and other mechanisms to dispose of a matter efficiently and speedily. Should you find yourself accused of murder due to the fact that you shot and killed an intruder, you have a constitutional right to legal representation. Please do not hesitate to contact one of our experienced attorneys, who will assist and professionally represent you in a court of law.
For further information, please do not hesitate to contact us.