Are you allowed to defend your neighbour with a firearm that does not belong to you?
Consider the following incident and what our legal experts have to say about it.
One of Firearms Guardian’s lawyers received a panicked phone call in the middle of the night from a client (the defender) who found himself in a very difficult legal position after defending his neighbours against an armed intruder. The defender was stirred from his sleep by his next-door neighbour, a mother and single parent of two minor children, phoning him on his mobile phone in a state of despair. She reported that she was alarmed by the sound of an intruder breaking into her house with what later was identified as a “gwhala.” The criminal gained access to her home, and she had nobody else to call for help. She personally was unarmed and had nothing available to defend herself, her children or her property with. The neighbour was in real and imminent danger and the defender reacted immediately. He rushed to get his licenced self – defence 9mm pistol in the locked firearm safe. He could not find the key to his safe and because he had to act quickly, he instinctively grabbed the shotgun of his sleeping friend who was visiting him for a few days.
He entered the helpless neighbour’s house and heard footsteps, fast approaching in his direction. The intruder closed in on him and ordered him to drop the shotgun. At that time the intruder was pointing a firearm at him. The client did not drop the shotgun but pulled the trigger and fatally wounded the intruder.
This scenario raises two very pertinent legal questions regarding self-defence that all firearm owners should be informed on, and our lawyers have the answers.
- Are you allowed to act in self-defence to protect the life and/or property of someone else (not your own)?
- Are you allowed to use any other firearm and/or item available (even un unlicensed one or one belonging to someone else) in the heat of the moment, to perform the necessary counter act of stopping an attack or threat?
Regarding the first question Firearms Guardian’s expert in criminal law, Dr. Llewelyn Curlewis weighs in:
Are you allowed to act in self-defence to protect the life and/or property of someone else (not your own)? The abovementioned scenario is a very good example where you can successfully rely on self-defence (actually private defence) when you protect the life and/or property of someone else. “The scenario is not uncommon these days in South-Africa. It is, as far as I am concerned, a straightforward case of acting in private defence, seeing that the hero client merely attempted to protect the lives and property of his neighbour and her children and ultimately his own life. The attack/danger was life threatening and imminent. This is absolutely a perfect example of what the law will determine as a typical act which is considered to be lawful and therefore a proper defence against any possible criminal charges against the owner of the house and the defender.
Regarding the second question, Advocate Henk Nolte, a Director of Firearms Guardian explains:
Are you allowed to use any other firearm and/or item available (even un unlicensed one or one belonging to someone else) in the heat of the moment, to perform the necessary counter act of stopping an attack or threat? “The answer is yes, without a doubt. It seems as if the owner of the shotgun was asleep and did not give our client permission to possess or use the firearm. Although he was not allowed to possess or use another person’s firearm, the client was protecting the neighbour against an unlawful attack, and he can successfully rely on the acting in private defence (self-defence) in possible criminal prosecution. The defender applied reasonable means in the situation. An inquiry into the force necessary to repel an unlawful attack is dependent upon the reasonableness of the force applied by a victim under the circumstances, not on the lawfulness to possess or use the weapon to repel the attack. An act of private defence against an unlawful attack by a third person, for instance, a security guard or a good Samaritan, will be treated in the same way as if they were defending their own person, property, or interests even though the weapon used might be possessed unlawfully. For a victim to successfully rely on self-defence, the following must be present:
- The attack must be unlawful
- The attack must have commenced or must be imminent and not yet completed
- The attack must be against a legal interest such as life or property
- The defence should be necessary and performed to protect the interest of the defender or another person
- The defensive actions must be directed against the attacker
- Reasonable means must be used in the defence
“I encourage members of the public to do the same when such a scenario takes place, on the assumption that they use their firearms in a responsible manner, having been properly trained in using it and obviously adhering to the parameters set by law when using it.
Firearms Guardian would advise and encourage gun owners to always be alert, be prepared for sudden situations which requires spur of the moment drastic action and to know that the law will protect you if you act in a reasonable manner, even if you ultimately injure or kill a perpetrator because of relying on one of the well-established defences ordinarily accepted in our law.”
What if this happens to you?
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