Picture source: Gallo Images/Getty
Violent crime statistics in South Africa (SA) are alarming, and the level of violence associated with these crimes are worrying. Property owners have resorted to fighting fire with fire against their assailants. Of late, the media has been abuzz with news of property owners retaliating violently to burglaries, robberies and hijackings.
Property owners have had to resort to using firearms to ward off their attackers and defend their lives and properties. In some instances, assailants have lost their lives when property owners struck back. This now begs the question, whether these defensive acts amount to vigilantism? This article is aimed at establishing what the legal position is if one finds oneself under attack and fights back.
The right to act in private defence is subsidiary in nature. It takes effect only when the state is not there to protect a particular person. The implication of this is that if help from the state in the form of the police is available to protect a person, such person should not violate another’s physical integrity in private defence.
In legal literature, two rationes or theories for the existence of private defence have been identified. Knowledge of these theories is of great benefit when endeavouring to answer problem questions relating to borderline cases in regard to this ground of justification. The first theory is the protection theory (also known as the individual protection theory). Here the emphasis is on the individual and their right to defend oneself against an unlawful attack. Every person has a natural right to protect oneself. Nobody need simply suffer the infringement on their life, limb, property or honour by another. In both man and beast, there is the instinct to defend against danger. The individualistic notion of self-defence predominates here.
The second theory relating to the existence of private defence is the upholding-of-justice theory. The idea underlying this theory is that people acting in private defence perform acts whereby they assist in upholding the legal order. Private defence is meant to prevent justice from yielding to injustice, because private defence comes into play only in situations in which there is an unlawful attack. People acting in private defence protect not only themselves, but also the entire legal order. They act in place of the authorities (the state or the police), because it is practically impossible for the police to always protect all people in all places.
As a point of departure: ‘A person acts in private defence, and her act is therefore lawful if she uses force to repel an unlawful attack which has commenced or is imminently threatening upon her or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided that the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack’ (CR Snyman Criminal Law 6ed (Durban: LexisNexis 2014) at 102 in Mbatha v S (GP) (unreported case no A621/2016, 22-11-2017) (Phiyega AJ)).
Let me begin by summarising the requirements of private defence as a ground of justification, namely, the attack must be –
It is common knowledge that house robberies, motor vehicle hijackings and muggings are often associated with much violence and are unlawful. At some point, we find ourselves being unlawfully attacked by ruthless elements. These attacks happen unexpectedly without any warning. Victims find themselves with their backs against the wall and the situation on its own is very scary, traumatising and nerve-racking. It takes a split second for your defensive instincts to kick in. So, let us look at what is meant by the phrase ‘interests which ought to be protected’. As human beings, we have basic human rights. The South African Constitution recognises a number of these rights.
It is in such circumstances that the victim can invoke private defence as a ground of justification. The requirement for private defence presently under discussion is merely that the attack against the victim must be unlawful. The victim can successfully rely on a private defensive act, which was directed at the conduct of a mentally ill person. Since the law does not address itself to animals, animals are not subject to the law and, therefore, cannot act unlawfully. For this reason, one does not act in private defence if one defends oneself, or others against an attack by an animal. In such a situation the person may, however, rely on the ground of justification known as necessity.
Although the attack must be unlawful, it need not necessarily be directed against the defender. One can act in private defence also in defence of a third party. If for instance, you come across a person assaulting another and you come to the defence of the attacked, even going as far as assaulting or injuring the attacker, you can successfully rely on private defence. ‘[T]he attack must be directed at an interest which legally deserves to be protected’ (see Nene v S (KZP) (unreported case no AR65/2017, 4-5-2018) (Henriques J (Chetty concurring)) at para 10). Private defence is usually invoked in protection of the attacked party’s life of physical integrity, but in principle, there is no reason why it should be limited to the protection of these interests. Thus, the law has recognised that one can also act in private defence even in protection of dignity. If your dignity is continually being attacked, for instance, through insults, you can defend yourself and successfully rely on private defence.
In Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A), the court was seized with a case where the accused pleaded private defence. The court was tasked with answering the question whether one can kill in defence of property. This case came before the court in 1966. However, the legal issues are as much relevant today. As a shop owner, Van Wyk had to put up with never-ending burglaries at his shop. All his efforts to secure his shop and property from thieves proved inadequate. He devised a plan to set up a shotgun to go off whenever anyone attempted to break into his shop. One night a burglar broke into his shop, triggering the shotgun to fire and the burglar was fatally wounded. Van Wyk was found to have acted in private defence. The court found that he had the right to protect his property even if it meant killing someone. The court, however, further noted: ‘The owner of property is not allowed to protect his property in every conceivable mode. He must proportion his means to his end’ (at p 515).
Over the years, various legal academics and legal authors have voiced different points of view on which right (that of the aggressor to their life or that of the defender to their person and property) should prevail. Others argue that today with the constitutional democracy and the Bill of Rights enshrined therein, advancement in technology, security systems and even private security companies, one can still kill in protection of property. However, it has to be remembered that property owners are doing all at their disposal to upgrade security, are paying an arm and a leg for tracking devices, installation of security gadgets around their property, hefty premiums to private security companies. However, all these efforts are challenged by intruders who are very aggressive in their attacks. I submit that killing in defence of property would at least be justifiable if the defender, at the same time was defending their life or bodily integrity.
In S v Mogohlwane 1982 (2) SA 587 (T) the court arrived at the same conclusion. The accused successfully relied on private defence. Let me reiterate, however, there is a thin line between defending oneself and committing a crime while one is of the impression they are acting in private defence. The defensive act must be necessary in order to protect the interests threatened, in the sense that it must not be possible for the person threatened to ward off the attack in another less harmful way. There must be a reasonable relationship between the attack and the defensive act. The act of defence may not be more harmful than necessary to ward off the attack. It stands to reason that there ought to be certain balance between the attack and the defence. If the defender can ward off the attack by merely using their fists or by kicking the assailant, they ought not to use excessive force such as stabbing or shooting the assailant. There are, however, other factors to be considered, such as the sex of the parties, the ages of the parties, the means they have at their disposal, the nature of the threat and the persistence of the attack.
In practice whether this requirement for private defence has been complied with is more a question of fact than law. These attacks occur out of the blue so there is very little time or no time at all for one to consider the next move. In a split second one finds oneself in grave danger and one has to act decisively there and then. The test is an objective one and South African courts have emphasised that one should not judge the events like an armchair critic, but rather place oneself in the shoes of the attacked person at the critical moment and bear in mind that at such point in time the attacked person only has a few seconds in which to make a decision. The court should then ask whether a reasonable person would have acted in the same way in those circumstances. A person who suffers a sudden attack cannot always be expected to weigh up all the advantages and disadvantages of their defensive act and to act calmly.
In S v Ntuli 1975 (1) SA 429 (A) the court noted the following: ‘In applying these formulations to the flesh-and-blood facts, the court adopts a robust approach, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self-defence or the foreseeability or foresight of resultant death’.
In the Nene case, the appellant was convicted of murder, attempted murder, reckless endangerment to person, or property by the court a quo. On appeal, he unsuccessfully attempted to raise private defence/self-defence. The facts of the matter, witness accounts and all circumstances of the case indicated that the appellant acted out of rage and revenge not self-defence or protecting any interests. As a trained security guard, he should have foreseen that discharging a firearm on unarmed people would result in the death and/or injury. The deceased did not produce any firearm or dangerous weapon that posed a threat or danger to the safety and well-being of the appellant in order to justify his conduct in shooting the deceased.
It has been pointed out that, by looking at the two reasons for the existence of private defence, namely the notions of individual protection and that of the upholding of justice, the reasons for the existence of the various requirements for a valid reliance on this ground for justification becomes clearer, and it also becomes easier to answer certain questions that come to the fore in borderline-cases relating to this ground for justification.
Itai Ayah Kagwere LLB (Unisa) is a graduate from Durban.
This article was first published in De Rebus in 2021 (March) DR 18.
