Self-defence and the law: private defence vs necessity
Lawful defensive use of a firearm rests on the common law of private defence and necessity - developed by our courts, not the Criminal Procedure Act.
Three myths worth dismantling
- Criminals do not have more rights than lawful owners. A justified defensive shooting - private defence, putative self-defence or necessity - has strong prospects of a successful defence.
- No law requires a warning shot or a less-than-lethal shot first. The aim of potentially lethal force is to stop an imminent unlawful attack.
- The Criminal Procedure Act does not deal with self-defence. Private defence and necessity come from the common law.
What private defence requires
All of: (1) an unlawful attack on you or another innocent person; (2) an attack that has commenced or is imminent; (3) no reasonable alternative or escape; and (4) force sufficient to stop the attack - never more. There is a fine line between stopping an attack and excessive force.
Necessity is different
Necessity is a defensive act against a threat that is not necessarily an unlawful attack - the classic examples being an attacking dog, or speeding an injured person to hospital. It is choosing the lesser of two evils.
Frequently asked
Does South African law require a warning shot before using a firearm in self-defence?
No. There is no legal requirement to fire a warning shot or a less-than-lethal shot first. The purpose of potentially lethal force is to stop an imminent unlawful attack.
What is the difference between private defence and necessity?
Private defence is a response to an unlawful attack aimed at the attacker. Necessity is a defensive act against a threat that is not necessarily an unlawful attack - choosing the lesser of two evils.
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