“The right of self-defence is the first law of nature.” (St. George Tucker, Blackstone’s Commentaries, 1803)
South Africa’s chronically high crime rates have left many of us wondering what the limits are when defending ourselves and our families from criminals. What weapons does the law allow us to carry, what permissions do we need to carry them, and how and when are we allowed to actually use them?
There are of course a host of practical considerations to consider on top of the legal ones. Are you trained to use your weapon without hurting yourself or innocent bystanders? Do you know how to stop your attacker from using your own weapon against you? Do you really need a weapon at all, or could you keep yourself and your family safe with home alarms, security response services, and common sense when out and about?
You’ll have to answer these questions yourself, but we can help with the legal ones. So, let’s have a look at the laws applying to the possession of several popular weapons, before turning to the twin questions of “legal possession” and “legal use”.
Do you need a licence for…
- Firearms? You need a licence to own and carry a firearm. The process involves background checks, competency training, and proof that you actually need one. Possessing or carrying a firearm without a valid licence is in itself a serious criminal offence which could land you in very hot water indeed.
- Tasers and stun guns? Tasers and stun guns are legal to own and carry for self-defence purposes. Unlike firearms, they are not classified as weapons under the Firearms Control Act and do not require a licence or permit.
- Pepper sprays? Pepper sprays are among the most commonly carried self-defence tools due to their ease of use, affordability, and legality. No licence or permit is required to carry one.
- Bladed weapons (knives, swords and the like), batons, hunting bows, martial arts weapons etc? There are no restrictions particular to these weapons, but the legality of their possession and use is, as we shall see below, very much context-sensitive.
When can you carry them? The importance of context
Context is vital here, in that the Dangerous Weapons Act – which carries penalties of a fine or up to three years’ imprisonment – criminalises possession of any “dangerous weapon”, defined as “any object, other than a firearm, capable of causing death or inflicting serious bodily harm, if it were used for an unlawful purpose.”
That definition is wide enough to include all of the above (other than firearms), and this is why their possession is very much context-sensitive:
- Lawful possession: There is no problem with possession “in pursuit of any lawful employment, duty or activity … during the participation in any religious or cultural activities, or lawful sport, recreation, or entertainment … or legitimate collection, display or exhibition of weapons.”
- Lawful intention: The line between legal and illegal activity is crossed when possession is in “circumstances which may raise a reasonable suspicion that the person intends to use the dangerous weapon for an unlawful purpose.” It’s important to note that all of the circumstances will be looked at very closely when determining whether an offence has been committed: place, time, and behaviour (including threats or intimidatory behaviour, manner of possession and display of the weapon among others).
And when can you use them? Our laws on self-defence
Having to defend yourself from an attacker is awful enough – imagine then being arrested for exceeding the limits of self-defence.
How can you avoid that? As set out by the SCA (Supreme Court of Appeal) “a person acts lawfully when he/she uses force to repel an unlawful attack, which has commenced, or is imminently threatening, upon her or somebody else’s life, bodily integrity, property, or other interests, 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.”
In other words, whatever you do in self-defence must be:
- Necessary: You must show that, in all the circumstances, you had no alternative but to use force. If you can for example avoid an attack by running away, that is what the law says you must do.
- Proportionate to the threat: You can’t use more force than is needed to avert the threat, so any excessive response risks serious trouble.
- Directed only at your assailant. The critical word here is “directed”, as shown in the case below.
How will that play out in practice? Let’s consider the tragic case of a plain clothes police officer shot in error by another law enforcer.
“Hey, put it down, down, down, down … Shoot him, shoot him”
A City of Cape Town law enforcement officer’s successful appeal against his conviction on two counts of murder (for which he had been sentenced to an effective ten years’ imprisonment) provides a practical example of how our laws on self-defence really work.
He’d been charged and convicted after shooting dead both an armed undercover policeman in civilian clothes, and the unarmed suspect the policeman had been arresting on a drug dealing charge.
The law enforcement officer and a colleague, patrolling the city streets at night, had responded to reports of an assault by a man carrying a firearm. When they got to the scene, the armed man (they had no idea at the time that he was a police officer) drew his firearm and pointed it at them despite warnings to put it down. The accused then fired two shots in self-defence, fatally injuring both the police officer and also (unintentionally) the suspect being arrested.
Audio recordings confirmed the accused shouting frantically “Hey, put it down, put it down, down, down, down, down, down, down, down. Shoot him, shoot him.”
The High Court set aside both murder convictions after analysing evidence from the accused, his colleague, and the prosecution’s witnesses, and finding that the accused’s version was “reasonably possibly true”, and also that it had not been disproportionate for him to fire two shots at someone pointing a firearm at him.
This case also highlights some other important practical aspects:
- “Reasonably possibly true” is enough: It’s up to the prosecution to prove its case beyond a reasonable doubt.
- No armchair critics: Per the Court: “our higher courts have repeatedly stated that judicial officers should not judge the events like an armchair critic but should place themselves in the shoes of the attacked person at the critical moment, and keep in mind that the attacked person probably only had a few seconds in which to make a decision, which was of vital importance to him.”
- Honest (but necessary) mistakes are OK: The Court again: “in our law putative self-defence applies when a person honestly believes, although mistakenly, that their actions were necessary to protect themselves or others from imminent harm or danger.”
- Only target the assailant: The Court clearly accepted the accused officer’s evidence that he did not have any intention of shooting the unarmed suspect – he directed both shots only at the armed man directly threatening his life.
If you have any questions about the legal implications of your decision to carry a self-defence weapon, please speak to us.
Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.
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