2 Months ago, chaos erupted in Durbanville’s business district at around 11:00 when a man allegedly stabbed another man repeatedly and was then shot and wounded by a 64-year-old Bystander. The Bystander, the owner of a business nearby, witnessed the altercation, rushed to the victim’s aid and fired a shot at the attacker, still busy stabbing the victim and wounding him. The victim, trying to escape from the attack, ran away with the attacker following him. The Bystander went to report the incident at the Durbanville police station and was subsequently arrested on a charge of attempted murder. He was held overnight in Durbanville police cells.
Two Important Legal Questions arise from this scenario:
1. Was the Bystander acting in private / self-defence (lawfully) when he opened fire on the attacker?
2. What if the Bystander simply ignored or only witnessed the incident and did nothing?
Advocate Henk Nolte, Director of Firearms Guardian gives his view:
1. Was the Bystander acting in private / self-defence (lawfully) when he opened fire on the attacker?
What is private / self-defence
A person acts in private / self-defence, and his act is therefore lawful, if she uses force to repel an unlawful attack which has commenced, or is imminently threatening, upon his or somebody else’s life, bodily integrity, property or other interest which deserves to be protected, provided the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack. (Snyman, Criminal Law p103)
The test for self-defence
The test of self-defence is objective. To determine whether a victim acted in self-defence, one should ask whether the reasonable person in the circumstances in which the victim found himself, would have acted in the same way. The courts apply the reasonable person test to determine whether the defender’s conduct was reasonable in the sense that it accorded with what is usually acceptable in society. In this way the criterion of the reasonable person is employed as an aid to determine whether the defender’s conduct was lawful or unlawful.
The courts often emphasise that in determining whether a person’s conduct was reasonable (in other words lawful), the Judge or Magistrate should not judge the events like an “armchair critic”, but should at the best of its ability endeavour to place itself in the shoes of the attacked person at the critical moment, and keep in mind that such a person probably had only a few seconds in which to make a decision which was of vital importance for him. The court should then ask itself whether a reasonable person would also have acted in that way in those circumstances. A person who suffers a sudden attack cannot always be expected to weigh up all the advantages and disadvantages of his defensive act, and act calmly.
In S v Ntuli 1975 1 SA 429 (A) the Appeal Court stated: “In applying these formulations to flesh and blood facts, the Courts adopt a robust attitude, not seeking to measure with nice intellectual calipers the precise bounds of legitimate self-defence.”
What can be protected in self-defence?
- Life
- Bodily integrity
- Property
- Any interest which deserves to be protected
Requirements of the attack
- The attack must be unlawful
- It must be in progress or immediately threatening but not yet completed
- The attack must be directed at an interest which legally deserves to be protected. (These interests are explained above.)
- The attack need not be directed at the defender. It could be directed at property or at another person.
- It is important to note that although the attack must be immediately threatening and not completed, the defender does not have to wait for the attacker to land the first blow or shot. If you are unlawfully attacked and must act in self-defence, then fire the first shot or strike the first blow!
Requirements of the defence
- The defence must be directed at the attacker.
- The defensive act must be necessary to protect the interest threatened.
- Flee or not – The courts are not unanimous on the question whether a duty to flee exists in cases where a person is being attacked unlawfully. Although there is no general duty on a victim to flee, we advise that you flee if an opportunity to flee do arise. But do not flee if it poses any danger!
Snyman’s argument on the question of whether a victim should flee is very insightful. On p108 he says:
“However, the question arises whether X should flee ………when X is attacked by Y when both he and Y find themselves in a narrow alley and both of them carry weapons.” Although the courts have not yet unequivocally held that in such circumstances there is indeed a duty on X to flee, there are indications in our case law that create the impression that the courts in fact expect him to flee.”
And his view on the duty to flee on page 109: “It is submitted that there is no duty on the attacked party to flee. To recognise a duty to flee is to deny the very essence of the present defence. Private defence (self-defence) deals with the defence of the legal order, that is, the upholding of justice.”
Firearms Guardian totally agree with Snyman: “Fleeing is no defence; it is a capitulation to injustice.”
The belief is, however, that in cases where a person is attacked in his home, where one wants to live and feel safe, there is no obligation to flee, even if the opportunity to flee presents itself. It is considered that the victim’s home is his last refuge where he may protect himself against an unlawful attack. In S v Engelbrecht 2005 2 SACR 41 (W) par 354 the Court quoted the following statement in a Canadian case with apparent approval: “traditional self-defence doctrine does not require a person to retreat from home instead of defending himself ….”
Proportionality
There must be a reasonable relationship between the attack and the defensive act. There ought to be a balance between the attack and the defence.
This means that you may not shoot and kill another person who slaps you in the face. The law requires that serious or deadly force be used by the attacker. Whether this requirement for private defence has been complied with is in practice more a question of fact than of law – S v Trainor 2003 1 SACR 35 (SCA) 41 h-i.
It is not required that there be a proportional relation between the weapons or means used by the attacker and the weapons or means used by the victim. We think of cases where a petite woman must defend herself against an unarmed rapist who is generally strong enough to kill her with his bare hands. She could legitimately shoot such an attacker in self-defense.
Furthermore, a victim can use his firearm to protect himself from a knife attack.
Firearm owners must keep in mind that the defensive conduct must be preventive and protective. Self-defence is not a means of exercising vengeance or a form of punishment.
Conclusion
The Bystander undoubtedly did the right thing. He acted quickly and with calculation. His first instinct was to protect a life. Absolutely commendable!
His actions fall squarely within the requirements of the law regarding the parameters of self-defence. He protected a life, did not exceed the limits of self-defense and his defensive act was proportional to the deadly force applied by the attacker. His actions are to be applauded and he certainly did not deserve to be arrested for the heroic act he performed towards an unknown member of the community.
There is no doubt in my mind that the Bystander can make a very strong case for a civil claim for wrongful arrest and detention against the Minister of Police.
2. Duty to act
The second question that arises here is whether there was any obligation / duty on the Bystander to act. And if there was a duty on him and he failed to rush to the victim’s aid, what legal sanction could be imposed on him?
In our law it is not only a positive act which may lead to criminal liability; an omission to act may also do so. In the first instance one has to do with active conduct or a commission and in the second with failure to act or omission.
An omission is punishable only if there is a legal duty upon somebody to perform a certain kind of active conduct. A moral duty is not necessarily the same as a legal duty. Therefore, for the purposes of the law “an Omission” does not mean “to do nothing,” but rather “to omit to engage in active conduct” in circumstances in which there is a legal duty to act positively.
In our law there is no “general” duty to act. If the duty to act is not created expressly (eg. in legislation) the rule is that there is a legal duty on a person to act positively if the legal convictions of the community demand that there be such a duty. There is nou closed list of situations in which a legal duty exists. Here are some examples:
- An example of an expressly created duty is where a Statute / Act may place a duty on somebody to act positively, for example, to complete an annual income tax return form.
- A duty may arise where a person accepts responsibility for the control of a dangerous or a potentially dangerous object, and then fails to control it properly. In S v Fernandez 1966 2 SA 259 (A) for example, X kept a baboon and failed to repair its cage properly, with the result that the animal escaped and bit a child, who later died. X was convicted of culpable homicide.
The role of the legal convictions of society
Snyman p61 describes the following situation as one which may qualify as case in which there is a legal duty to act positively, because the legal convictions of the community demand so:
A fictitious example of a situation in which a court may hold that there is a legal duty on X, …… is the following: There is a manhole on a pavement which has been left open by workers who failed to replace the lid on the opening after working in it. Y walks on the pavement with her “head in the clouds” and does not see the gaping hole in front of her. X is standing on the pavement and sees Y striding towards the open manhole. It is easy for X to prevent Y from falling into the manhole by merely opening her mouth and shouting a warning to her (Y). X, however, fails to do so, as a result of which Y falls into the manhole and injures herself severely. May X be convicted of assault on the strength of her omission? It is submitted that the answer to this question is affirmative: the legal convictions of society place a duty on X to shout a warning to Y, especially in view of the fact that what the law expects of X is very easy for X to perform: she merely needs to open her mouth and shout a warning to Y, whereas the consequence of a failure to do so (namely Y’s falling into the manhole) is very serious. It should be noted that one of the criteria employed to answer the question as to the existence of a legal duty, is to enquire how easy or difficult it is for X to perform the act concerned, how slight or severe the consequences of a failure on X’s part is for Y, and to weigh up against each other these two considerations.
To decide whether there is a legal duty to act, a Judge or Magistrate must have regard to his interpretation of the applicable legal norms of the community and apply them to the particular set of facts before him. A further criterion to ascertain the legal convictions of the community, is to consider the values enshrined in the Bill of Rights in the South African Constitution.
In my opinion, there was a legal duty on the Bystander in the Durbanville case to come to the aid of the victim. The victim was unarmed and clearly could not defend himself against this brutal attack. He was unarmed. The attacker was armed with a knife and acted extremely violently. The Bystander was armed and it was possible and not difficult for him to help and try to protect the victim. The attacker was only armed with a knife and the Bystander could therefore easily have repelled the attack by wounding or killing him with the knife. There was sufficient opportunity for the Bystander to act, without endangering his own life or that of other Bystanders. If the Bystander did not act, the consequences of his failure could have been devastating for the victim in this case. He definitely saved the victim’s life.
However, if the Bystander in the Durbanville case was not armed, there would be no legal duty to act.
Firearm owners should be aware that a Court, in cases where they were indeed armed and find themselves in circumstances similar to those in the Durbanville case, is likely to find that the legal convictions of the community expect them to do something positive by using a firearm. If they then do not act to protect a life, they would likely be found guilty of a crime.
If the Bystander in the Durbanville case was not armed, however, there would be no legal duty to act.