Detailed Discussion:What to expect when
you shoot someone

on 12 November 2021
by Jonathan Deal

What can I expect to happen if
I shoot someone in self-defence?

Introduction

South African law allows for individuals to employ deadly force to protect life. The circumstances under which a person may protect him-or-herself with a firearm are clearly prescribed.

Self-defence (protecting one’s own life) or private defence (the life of another person) remains subject to the parameters of Law and is restricted inasmuch as the act of defence may not unnecessarily infringe upon another’s freedom and right to life. Regardless of how difficult it is to accept that one cannot simply shoot an intruder who has entered your premises unlawfully, a firearm must primarily be used to ward off danger or protect others or yourself in the face of imminent and potentially life-threatening danger. 

The definition of imminent danger may further differ from one person to another, being subject to the circumstances at the time of the shooting. Consider these variables that may be present or absent: man attacker, woman defender, strong attacker, weak defender, young attacker, elderly defender, pitch dark, daylight, armed attacker, unarmed attacker, private area, public area – and so on. It is thus clear that the sum of all the circumstances will play a significant role in evaluating the lawfulness of a defensive shooting.

When may a person act in self-defence?

Anybody who prepares to act in defence should bear in mind that under South African law, all persons have a right to life, and that taking a life, even in self-defence must be avoided as much as possible.

Self-defence must be directed expressly at the attacker and using lethal force (such as a firearm) may also only be applied in very specific circumstances, including the following:

  • The attack must have commenced or be imminent, you may not defend pre-emptively.
  • There must be a protected interest (someone’s life at risk) and the degree of force you may use to defend will depend on the circumstances, for example lethal force is not justified when defending property interests.
  • The attack against the protected interest must be illegal or unlawful, for example, you may not kill another who is stealing your car.
  • The force used must always be necessary to avert the attack, and reasonable under the circumstances and you may not use more force than the attacker.

Can lethal force be used in self-defence?

The use of lethal force when acting in self-defence is complicated. Although the legal position is quite clear, many people find it difficult to apply the law to the facts. Furthermore, you usually have to decide in a split second as to whether you are within the realm of the law when you are defending yourself or others.

According to South African law, a firearm can be used in response to a life-threatening attack against you or someone else, provided that such force was the only viable option in the moment and that it is the only sure way to stop the attack.

The important criteria is that the force that you use must be concomitant with the attack – if the attacker does not use (or present the imminent threat of) lethal force and your life is not in danger, you will generally not be entitled to use lethal force. 

What will be the consequences for you if you kill someone in self-defence?

Shooting a person that threatens your life seems like a clear-cut case, but legally it isn’t that simple. Although under SA law you are considered innocent until proven guilty, you are still required to be able to convince the court that lethal force was justified.

Where there is prima facie evidence that someone has acted in self-defence, it will be investigated by the police and the Director of Public Prosecutions (DPP) will decide whether the bounds of self-defence were exceeded. 

A case of murder is usually opened, and you could be arrested and prosecuted even though prima facie evidence suggests that you have acted in self-defence. 

You will be allowed to file a bail application at your first court appearance and your lawyer will argue that you acted in lawful self-defence. If the DPP is satisfied with the evidence presented, you may not be prosecuted, but should the DPP decide to prosecute, the courts will decide on whether or not you should be acquitted.

Conclusion

If all the requirements for the legal use of a firearm in self-defence are met, and a person has tried all other possibilities like verbal warnings, lethal force cannot be avoided.

The force must however be directed against the attacker himself, for example if a stranger attempts to break into your house while his accomplices wait in a vehicle outside to help him escape, you cannot apply force to the stranger and the "getaway drivers".

Lethal force must be relevant to the proportionality of an attack; thus it should only be used when a life is in danger, or if there is significant risk of bodily harm or rape, and there was no other way of avoiding the harm. 

A court will objectively consider what a reasonable person would have done if inserted into such a situation.

FAQ

May I use lethal force if I find somebody entering my home illegally?

No you may not necessarily use lethal force if somebody enters your home illegally. You may only use lethal force if:

  • An attack is already in process or was imminent.
  • An attack is unlawful.
  • You are protecting your life, physical well-being, personal freedom, or bodily integrity and further provided that your life is under threat or that there is a threat of serious physical harm to you or another. 
  • Self-defence is necessary to prevent an attack from escalating.
  • Your self-defence is directed only toward the attacker.
  • There was not time to resort to a different, less violent form of protecting yourself and your interests.

May you shoot when you're scared?

It is important that anyone carrying a firearm for self-protection must have had the best possible training and be empowered to be psychologically and physically prepared to deal with any life-threatening situation. Shooting somebody before they've done anything to threaten you is illegal and being scared is not enough reason to act in lethal self-defence.

Will I go to jail if I shoot someone in self-defence?

No, you will not go to jail if you can prove that you shot someone in self-defence, providing you did not exceed the bounds of self-defence. A case of murder will most probably be opened, and you could be arrested and prosecuted. It is therefore important to get expert legal advice, because you will be allowed to file a bail application at your first court appearance and your lawyer will argue that you acted in lawful self-defence. If the DPP is satisfied with the evidence presented, you may not be prosecuted, but should the DPP decide to prosecute, the courts will decide on whether or not you should be acquitted.

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