Ian Teague says there is still widespread ignorance around this matter.
In certain parts of Greater Cape Town – and, indeed, of South Africa – housebreaking, sometimes involving violence and attacks on the householder, has become almost a daily occurrence. In Hout Bay, for example, the latest figures from SAPS indicate that one third of the ± 7,000 middle class homes in the valley were involved in some form of a criminal intrusion during the last 12 months.
This, in turn, has led to a rise in the purchase of firearms and in highly satisfactory sales for the intruder detection, prevention and response companies.
However there is still widespread ignorance as to exactly what a householder may or may not do to protect, firstly, his property and, secondly, himself, his spouse and his dependants.
Many people brought up in the pre-1994 era believe that they have the right to use deadly force against any person who is on their property without their consent – but this is very definitely not permitted in South African law.
A large body of case law has been built up over the years on this subject, with the result that clear guidelines have been laid down regarding an attack on property or life, and the response to such attack.
The mere fact that an intruder is in a place where he is not permitted to be without the property owner’s consent is not in itself sufficient cause to justify a shooting or another form of deadly force. There has, for example, to be clear evidence that the property of the owner was at that time in danger of unlawful damage or destruction.
In responding to an attack the property owner must be able to satisfy the criteria that his action was necessary to avert the danger, was “reasonable” in the circumstances, and was directed solely against the attacker.
The law regarding trespassing and protection of property states that the response of the victim has to be ‘reasonable’: it would not, for example, be acceptable to shoot simply because one or two items of garden furniture were being stolen. However, if the householder was fortunate enough to be the owner of expensive jewellery, a Matisse or a Picasso and these were being stolen, the value of the theft, and possibility of such items never being recovered, might well justify a stronger use of force.
In a fair number of instances the householder’s firearm used in his defence is later found to be unlicenced. This is a serious offence and those who have inherited or acquired firearms without licensing them should put matters right as soon as possible – and should take a firearm course if they intend keeping the firearm.
The law lays it down that the licence has to be obtained before a firearm is purchased.
*Ian Teague is from Gunstons Attorneys.
