THE USE OF FIREARMS FOR SELF-DEFENCE OF CITIZENS IN SOUTH AFRICA

By Mokata Nkwana

Lecturer
Department of
Criminology & Security
Science
Unisa

Introduction

Some argue that the majority of private citizens use firearms for other intention than
self-defence or protection and as a result, pose a safety risk to their fellow human
beings. Raphelson (2018) however argues that most firearm owners carry firearms
mainly for their protection although this point has not been adequately addressed in
courts of law. It is a common knowledge that when citizens apply for private firearm
licences at the South African Police Services (SAPS), the motivation is usually for
their own protection. The question remains though whether or not those firearms are
really meant for protection.

What is self-defence?

Self-defence refers to the act of defending one’s person when physically attacked, as
by countering blows or overcoming an assailant (Anon, 2018). In terms of the
Firearms Control Act 60 of 2000 (FCA), Section 13 provides for a firearm licence
granted specifically to a natural person for self-defence. However, in terms of
Section 13(4), it is possible to use a licence granted in terms of section 13 licence for
other purposes: “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.”

Risk factors
In a Harvard University analysis of statistics taken from the National Crime
Victimisation Survey, individuals used a gun to defend themselves in 0,9% of crimes
between 2007 and 2011 (Raphelson 2018). It is argued that when a person uses a
firearm, the aim is to shoot and kill; if not, then it becomes natural to question the
person’s reason for using the firearm. If an individual tells police that s/he pointed a
deadly weapon at another human being, claiming that it was in self-defence, the
police is likely to investigate such matter. This might result in that individual being
treated as guilty until his/her innocence is proven (Raphelson 2018). Should one
therefore infer that a person is not allowed to draw a firearm unless s/he intends to
shoot?
It could be a serious security risk if a person draws a firearm from his or her holster
in front of people without a clear intention. If a person has to draw a firearm, then it
should only be when that person’s life is in danger and s/he is in a position to
neutralise the threat. If that person is afraid of possible fatal consequences, then his
or her firearm should stay in the holster to prevent unnecessary risks. In addition, if a
person draw his or her firearm to scare or wound, then s/he should not need to be
drawing his or her firearm. (Parks 2013).

When may a person act in self-defence?

Person “A” can only defend him-/herself against an attacker (Person “B”) during an
ongoing/imminent attack. If the attacker has fled the scene of the crime, the defender
cannot pursue him/her and think s/he is still acting in self-defence. Retaliation is not
self-defence. In such circumstances, the defender has become an attacker him-
herself and would be guilty of assault. In addition, person “A’s defence must also be
directed towards the attacker - person “A” cannot defend him-/herself by assaulting
somebody else who never launched an attack on person “A” (Anon 2018).

Furthermore, a person’s actions should be reasonable in the circumstances, for

example, one cannot shoot another person after having been slapped by them.
There has to be reasonable comparison between how the individual’s life is being
threatened and his/her reaction. In an article written and published by Du Toit’s
Attorneys, it is noted that it is not expected of a person to first ascertain what weapon
the attacker is carrying before s/he can defend him-/herself. The most important
thing that the court will need to determine is whether the person’s actions in
defending him-/herself must not exceed the boundaries of self-defence (Anon, 2018).

The important principle to remember is that if the defender has the belief that another
person would injure him/her or someone close to him/her, and even possibly kill him
because of this attack, s/he may use a firearm to defend him-/herself. In the majority
of cases, the Court will ultimately consider whether the boundaries of self-
defence were exceeded or not, and whether the person is guilty of murder or not,
and not the police official who attended the crime scene (Anon 2018).

What is South Africa's law regarding self-defence?

In simple terms, firearm owners can use lethal force when their lives are in danger.
In South Africa the law allows firearm owners to protect their lives and the lives of
those around them when in imminent danger, but not their property. If a thief is busy
stealing a person’s car and the person shoots and kills the perpetrator, s/he may be
charged for murder. If the person does not kill the perpetrator but hurts them badly
enough, the individual may be charged for attempted murder. If the perpetrator is
wounded to a minor degree the person may be charged with assault. Either way, the
thief goes free and the firearm owner is left with the consequences (Silkiewicz,
2017).

If someone points a gun at another person and the person shoots and kills the
assailant, the person will have to prove that the assailant intended to kill him/her first.
In this case, the defending person would need to have shot at least one warning shot
before firing directly at the assailant. In addition, if an intruder enters a person’s
home and the person shoots the intruder in the back, the person can be charged for
murder since the intruder can argue that he was trying to get away from the person
(Silkiewicz 2017).

Conclusion
No-one should commit crime even if they try to argue that it has been for protection
or self-defence. The author’s opinion is that private citizens should abstain from
carrying firearms even if they want to use such firearms for protection. Firearm
owners should remember that if a person dies as a result of the use of such firearms,
they will face the court of law. Even though they might be acquitted on the charge of
murder, they might ultimately find themselves being convicted of culpable homicide
with the prospects of being imprisoned. Firearm owners should therefore always
think twice before getting involved in any shooting activities whether or not it is for
self-defence .

List of references

Anon. 2018. What is considered self-defence? Available at: http://www.

dutoitattorneys.com. (Accessed on: 15/05/2018).
Firearm Control Act 60 of 200.

Parks, J. 2013. The consequences of using firearm in self-defense. Available at:

http://www.blog.beretta.com (Accessed on: 23/04/2018).

Raphelson, S. 2018. How Often Do People Use Guns In Self-Defense? Available at:
http://www.npr.org. (Accessed on: 23/04/2018).

Silkiewicz, K. 2017. What is South Africa's law regarding self-defense? Available at:
http://www.quom.com. (Accessed on: 14/05/2018)