WHEN MAY I PULL THE TRIGGER ON AN INTRUDER IN MY HOME?
JC Van Zyl
21 June 2019
Although widely discussed and fairly controversial, the short answer is (quite frankly) almost NEVER.
Unfortunately, we live in a country where crime is rife and home invasions and armed robberies are realities that unsuspecting victims front up to on a daily basis. The popular belief is that victims can respond to these events (and their associated violence) with defensive tactics employing whatever means necessary, which may even extend to killing a home intruder.
Let’s accept for a moment that an intruder breaks into your home and whilst trespassing you shoot him. With a few exceptions, the South African Police Service (“the SAPS”) is compelled to open a docket and investigate every unnatural death which could lead to the charges of either (i) attempted murder; (ii) murder; (iii) culpable homicide or even (iv) the unlawful pointing of a firearm.
Let’s accept further that the intruder succumbs to the gunshot-wound(s) inflicted by you. A defence to (or in legal terms, a ground of justification for) a charge of murder is Private Defence (more commonly known and narrowly described as self-defence). To prove that your act was not only justified but also lawful, (in order to successfully rely upon Private Defence), the following essential requirements must be met:
- The attack must have been unlawful;
- The attack must have already commenced; or must have been imminently threating (but not yet completed);
- The attack must have been aimed at your life, the life of somebody else, bodily integrity, property or any other interest which deserves to be protected;
- Your defensive act must have been necessary to protect the interest threatened; and
- Your defensive act must have been directed towards the attacker.
It is evident from the abovementioned requirements that in order for private defence to succeed as a defence to a charge of murder, there must have been a clear attack. Thus if an intruder has broken into your home, and dismounted your (very expensive) flat-screen TV from its wall and you shoot him during his escape, the justification of private defence will, in all probability, not succeed owing to the fact that at the time of the shooting, there was no attack that had commenced or was imminently threatening. In addition, the shooting of the intruder was not necessary to protect your interest (being, your interest in retrieving your property).
In addition, and when assessing cases of this nature, our courts apply a test known as the reasonable man test (also known as the reasonable person test) which is, to a certain extent, an objective test. This test puts a fictional, legal character, known as the reasonable person, into the shoes of the accused (Y). The question that follows is whether a reasonable person, in the same circumstances in which Y found himself, would have acted in a similar way. In other words, would Y’s conduct in those circumstances be seen as acceptable by society. Further to this, the courts explore whether there were any other available rational steps that the reasonable person would have taken to avoid/prevent the attack and also, whether there were any less drastic and/or harmful measures that could have been taken to repel the attack. Examples could be locking interleading doors, slamming Trellidoors, activating your house alarm, contacting the SAPS, and if need be, warning the intruder that you are armed and are prepared to use force against him, and if necessary, fire a warning shot.
Furthermore, and probably one of the most crucial factors that is often forgotten, revolves around whether the defensive act is reasonably proportionate to the attack. In layman’s terms this means that there must have been a reasonable relationship between the action (the attack) and the reaction (the defensive act). By way of illustration, you cannot simply shoot someone who is launching an attack on you with his/her bare fists. The use of a firearm in this situation cannot, by most measures, be classified as reasonably proportionate. However, the scenario would be painted with a different brush if your attacker is an MMA-fighter who is highly trained in hand-to-hand combat and attacks you with the sole purpose of inflicting grievous bodily harm.
All of the above should be borne in mind as these are the factors that will be taken into account by a court when assessing whether your defensive act was justified. However, and in the same breath, the courts are aware that these are highly stressful situations where people are overcome with an array of emotions or could be in a state of “fight or flight”-mode. More often than not, people are irrational in their thought process and may have to make life or death decisions in seconds, without fully appreciating the consequences of their actions. Further, our courts do stress the importance of judicial officers refraining from judging incidents as “armchair critics” and must endeavour to place himself/herself in the shoes of the person being attacked at that crucial moment.
Ultimately, the presiding officer must be convinced that you acted as any other reasonable person would have in the circumstances you found yourself in. If not, you might be in serious trouble.
With that being said, it is important to realise that there are a multitude of scenarios and every matter has a different factual matrix, each decided on its own merits. There are no hard and fast rules when it comes to shooting an intruder in your home. However, you need to ask yourself whether it is absolutely necessary to shoot the intruder – pulling the trigger must essentially be your only recourse.
It is clear that the simple expression of “a second bullet is better than a second version” is not so simple. Taking a life has serious consequences, most of which people do not appreciate at the vital moment.
In the event that the prosecution successfully proves its charge of murder beyond a reasonable doubt and the court dismisses your ‘defence’ of private defence, you will be found guilty of murder. If you do not qualify for mandatory imprisonment for life, Section 51(2) of the Criminal Law Amendment Act 105 of 1997 provides that a court is nevertheless obliged to impose the following minimum periods of imprisonment:
- Fifteen years in respect of a first offender;
- Twenty years in respect of a second offender; and
- Twenty-five years in respect of a third or subsequent offender.
You will note that the requirements for private defence make provision for an attack aimed against your property. In essence, this means that a defensive act committed in the pursuit of protecting your property can generally be ruled as private defence. However, extending this to the scenario of shooting an intruder who is attempting to deprive you of your property is extremely limited. You will have great difficulty in justifying the taking of a life whilst protecting a material possession. Although you could be entitled to assault an intruder who threatens to deprive you of a possession, pulling the trigger is an entirely different ballgame. In Ex Parte Minister van Justisie: in re S v Van Wyk, the court held that a person may in extreme circumstances kill an intruder in order to protect his/her property. Not only must the other requirements for private defence be complied with but the property must be of great value to the defender who must have at least tried every other (less harmful) available method to ward off such an attack. This case makes for an interesting read, the gist of which provides that killing an intruder in the pursuit of protecting your property can only be justified in the most extreme circumstances.
In conclusion, think twice before pulling the trigger.