04:54am Saturday 19 October 2019

Intruders provoke a lethal-force dilemma

Emmanuel Maravanyika

Emmanuel Maravanyika

Many citizens have turned to arming themselves with registered and unregistered weapons.

As property owners increase across the country, so, too, do the statistics on house break-ins and property-related crimes. It is in this environment of violence that fear has led homeowners to acquire firearms to protect themselves, their families and their property.

The police often encourage homeowners to surrender their movable property to intruders and not offer resistance, but many who have complied have found themselves further victimised, often violently, and at times fatally, by the perpetrators.

There are no guarantees that complying with intruders’ demands will ensure your safety, especially when they have arrived in numbers. And therein lies the conundrum: Does one use one’s firearm only in a perceived situation of imminent danger, or take the risk of not using a firearm without knowing the result?

The fact remains: an individual who has made a concerted effort to breach the physical deterrents to entry has violated the sanctity of your home and is therefore unpredictable.

In South Africa, the use of lethal force in the defence of one’s property is a grey area, because there is no legal precedent that prohibits the use of it in defending one’s property. In principle, one is entitled to defend oneself and one’s property subject to the principle of proportionality. In other words, “the defensive act may not be more harmful than necessary to ward off the attack”.

The Criminal Procedure Act prescribes when a law enforcement officer may exercise lethal force while arresting a suspect.

However, there are differences between an arrest and defending oneself and one’s property. In an arrest, the officer’s main aim is the secure the suspect to present him before a criminal court to face charges of the crimes allegedly committed. If the suspect resists arrest and threatens the life of the officer, he or she is entitled to use lethal force, and only in that situation. The officer cannot simply shoot to kill a suspect if there is no imminent threat.

In the case of defending oneself in one’s home, it is often not the case that a homeowner intends to arrest an intruder. Although it may be assumed that police officers are trained for such situations, the same cannot be said of ordinary citizens.

The other side of the argument is that an intruder assumes a high risk when he enters someone’s properly. If the intruder retreats and attempts to escape, the situation cannot be deemed as one of imminent danger.

However, if escape is not the intention of the intruder, coupled with the fact that forced entry was probably used to gain access, this may be deemed as a situation of imminent danger or attack.

It is difficult to assess and apply the principle of proportionality in a situation in which the intrusion itself can be deemed an imminent attack. After all, the intruder should not be there in the first place and at any stage the attack on private property could shift to an attack on the person. In many such situations, the constraints of time become key factors in deciding whether or not to use force: time to run away, time to “negotiate” with the intruder, or even time to establish whether or not it is indeed an intruder.

Although the right to life supersedes all other rights and one’s property cannot be valued above the life of another, it cannot be viewed or applied in isolation from all other rights. The right to life is an incorporation of the exercise of all other rights, which include the right to privacy, the right to not be deprived of property and the right to security, human dignity and a healthy living environment. These are part and parcel of the rights that both the intruder and the homeowner are entitled to in equal measure.

If one infringes the rights of another through violation of his physical space, which embodies his dignity, security and healthy living environment, it would amount to an imminent danger to the person.

Although suspects have rights, they need to be aware of, and fully appreciate, the environment of fear and apprehension in which they operate when ordinary citizens are prepared to defend not only their property, but also their lives.

Emmanuel Maravanyika is a criminal justice and criminology lecturer at Monash South Africa.

This article originally appeared in The Sunday Times (South Africa).

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