Zinta Heunis

The pondering question on the minds of many South Africans is how you can protect yourself, your family and your property against burglaries and dangers bearing human rights and the Constitution in mind.

The scenario is as follows: You wake up because of a noise in the living room, your children are in the room next to yours and you fear that something might happen to them. You take your gun out of your safe next to your bed and as you walk to their rooms, the burglar sees you and runs away with your television under his arm. You decide to shoot the burglar in his back which kills the burglar.

Have you done the correct thing?

The Constitution of the Republic of South Africa, 1996 (the Constitution), contains a set of rights that is not only applicable to you, the person protecting his/her family and property, but also that of the burglar:

  • Section 11: ‘Everyone has the right to life’
  • Section 12(1)(c): ‘Everyone has the right to freedom and security of the person which includes to be free from all forms of violence from either public or private sources’
  • Section 25(1):’ No one may be deprived of property except in terms of law and general application’

From the above scenario there are clearly conflicting constitutional rights for both the person shooting and the burglar. Should one right be considered to be more important than another? The Constitution does not provide for a hierarchy of rights, therefore it is possible that the person shooting the burglar can face charges of murder.

It is therefore, important to know when the courts will deem it reasonably justifiable, to shoot someone in an attempt to protect yourself, your family or your property, which can be:

  • The attack against you must have commenced already, or at least be imminent.
  • The person against whom your self-defense act is actioned should pose a threat to your life or anyone else, only then will you be entitled to use the necessary force to defend yourself, your family or your property.
  • The necessary force must be proportionate to that of the attack. In other words your defensive action may not be more harmful than necessary to stop the attack. The merits of proportionality will be determined by the courts by taking into consideration all relevant circumstances and facts.

In conclusion you may defend yourself, your family or your property when the attack has commenced or is imminent to commence in such a way that it is necessary to prevent the attack. Your actions must be reasonable in terms of the amount of force used and it must be directed at the attacker.

Taking the above scenario into consideration against the backdrop of the circumstance and facts, you would be found guilty of murder. Why? There was no attack that put the shooter’s life in danger, exchanging a life for a television is disproportionate as more than the necessary force was used to protect the property and lastly, in terms of section 36(1) of the Constitution your rights may be limited as:

‘only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

  • the nature of the right;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation;
  • the relation between the limitation and its purpose; and
  • less restrictive means to achieve the purpose.’

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.