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Home Invasions and the Law: What You Should Know

With recent release of the latest crime statistics in South Africa, which revealed that 56 people are murdered every day, it’s clear that criminal activity in the country is on the rise.

And when it comes to the most feared crime, a survey showed that house burglaries or home invasions topped the list. According to Africa Check, in 2017/18, 228,094 house burglaries were recorded – an average of 625 houses per day.
South Africa’s 2016/17 Victims of Crime Survey revealed that 28.3% of house burglary victims didn’t report the crime to the police because they thought the police would not act.

Home Invasions in South Africa

As mentioned above, South Africans fear home invasions above all crimes in the country, and there is no doubt that it is a terrifying and traumatic ordeal for the victims. It’s also a high-pressure situation in which most people will do almost anything to thwart the attack and protect themselves and their loved ones. Understandably, most people don’t always think rationally, and thinking about how to do deal with the ordeal that ticks all the legal boxes isn’t top of mind. However, self-defence isn’t as clear-cut as one might think, and if the law isn’t followed, a person could find themselves in legal hot water.

What does the law say?

According to Burchell and Milton’s Principles of Criminal Law (2005), private self-defence is when:
“A person who is the victim of an unlawful attack upon person, property or other recognised legal interest may resort to force to repel such attack. Any harm or damage inflicted upon an aggressor in the court of such private defence is not unlawful.“
But while this might sound clear and simple in theory, it is certainly more complicated in practice. The courts apply what’s known as the ‘reasonable man’ test, which begs the question of whether or not a reasonable man -someone who exercises average care, skill, and judgement in conduct – in the same position would have done the same thing.

There are very limited circumstances under which South Africans are entitled to act in self-defence. Of course, a person whose life is threatened can use necessary force to lawfully defend themselves.

Factors that are considered in a self-defence case:

• The attack against you must be unlawful.
• The attack must be unavoidable or already occurring.
• Your defensive action must occur during the attack.
• Your retaliation must be directed towards your attacker
• Your defensive action must be proportionate to the attack.

Another important factor to keep in mind is whether or not the attack is still occurring or not. A self-defence case will usually only hold up in court if the attack is ongoing or imminent. You cannot pursue if they are fleeing the scene. When talking about a defensive action being proportionate to the attack, it means that there must a reasonable comparison between the force of the attacker and your retaliation. For example, you cannot shoot someone if they slap you once. This would result in you exceeding the boundaries of self-defence.

These same legal requirements apply when you defend someone else against an attacker.

However, it is important to note that a defensive action, particularly shooting an intruder before they do anything to threaten your life, is illegal. If an intruder does not have a weapon, and you kill them, you could find yourself in some legal trouble. Essentially, the law implies that fear is insufficient justification for self-defence. Of course, each case is unique and it will be up to the court to determine whether or not the boundaries of self-defence were exceeded.

What to do after your house has been broken into

• Call the relevant authorities. If anyone has been hurt during the incident, call an ambulance immediately. Next, call the police and/or the home security company. It’s important not to touch anything in the house as you could contaminate evidence, so it is best to leave the house as soon as possible.

• Have a chat with your neighbours. In addition to warning them about possible criminal activity in the area, you could get useful information from them that could serve as evidence.

• Notify your insurance company. It’s very likely that you suffered significant financial loss because of the burglary, so contacting your insurance as soon as possible will get the ball rolling on recovering any loss.

Tips for protecting yourself against home invasions or burglaries

Lowvelder.co.za compiled the following comprehensive security tips:

• Have a number of small dogs inside the house that will bark when they become aware of suspicious activity outside
• Teach them not to take food from strangers as perpetrators will not hesitate to poison them
• Install razor wire or electric security fences around the entire perimeter of the house
• Install pre-warning alarm systems such as sensors in the garden, along the outside walls, on the roof and in the ceiling
• Subscribe to an armed response service
• Install security lights outside, especially sensor lights in front of bedrooms
• Install CCTV systems and an intercom system
• Have layers of security as opposed to a single security system
• Install strong doors and security gates with good quality locks
• Install door alarms that are activated when residents are at home
• Ensure curtains are drawn at night to prevent perpetrators from identifying the movement in the house
• Set up a “secure room” to which residents can escape once they are aware of an attack
• Panic buttons should be placed where residents are most likely to need them
• Always check for signs of forced entry when entering or leaving your home
• Keep a copy of the ID book of any employees who have access to or work at the house including names and contact details of their relatives.

Last word…

Should you be a victim of a home invasion, remember the goal to get out of the ordeal alive, so all efforts must be put into staying safe, and any form of retaliation must be a last resort.

DISCLAIMER

The recent public interest in the #LionMama case has many asking: “When is self-defence justified?”.

The #LionMama Case

In September 2017, an Eastern Cape woman, who has become known as “Lion Mama” *, was charged with fatally stabbing a man and wounding two others after finding them raping her daughter.

Recently, after widespread public support and outcry, “Lion Mama” was set free as the National Director of Public Prosecutions (NDPP) Shaun Abrahams withdrew all charges against her, a decision that was welcomed by South Africans.

“The state has withdrawn the charges. This means that she is free, and the state will not be pursuing criminal charges against her. The decision was taken by the NDPP – he looked at the docket, and based on the evidence, a decision was taken not to proceed with the case,” said Luxolo Tyali, spokesperson for the National Prosecution Authority (NPA) in the Eastern Cape.

However, whether or not the case was dismissed based of self-defence is still unclear. The NPA, which is mandated to prosecute crimes in South Africa, has merely perused the docket, considered the evidence of the case and, as a result, withdrew the charges.

When deciding to prosecute, the NPA looks at a myriad of factors:  first and most importantly, they consider whether taking legal action will result in a successful prosecution. If they think, after looking at the facts objectively, that it would not, they may withdraw the charges so not to waste state resources.

Although, according to the Prosecuting Policy, they may consider other factors, including the interest of the community, the broader community, the victim and the circumstances of the offender.

“Lion Mama” was initially charged with murder and two attempts of murder. On the night of the incident, she was alerted of the rape by one of her daughter’s friends, and immediately phoned the police, which failed to respond. Desperate to save her daughter, she took a knife from her home and, along with members of her immediate community, went over to the unoccupied house where her daughter was being violated. She decided to enter the house alone and tried to rescue her daughter.  In the process, she stabbed all three rapists, killing one of them.

Self-Defence Laws in South Africa

When looking at the very brief facts that are in the public domain, one easily judges it as self-defence.

“In South Africa, self-defence rests on the common law principle that you may protect your right to life and dignity. The requirement for self-defence is merely that the attack was unlawful and violent and you tried to thwart the attack. It is important to note that you may not use excessive force, the defence must correspond to the attack. In other words, you cannot shoot someone if they only slap you. You must be in imminent danger, and your reaction must be reasonable given the attack,” states Jackie Nagtegaal, Managing Director of LAW FOR ALL.

From a legal perspective, this causes a grey area when it comes to cases of rape. Rape is considered an act of extreme violence. It is also an epidemic in South Africa with over 30 000 reported cases and an estimated 480 000 cases of sexual assault (it is widely known that not all cases are reported). But, the question remains: is killing your rapist, during the attack, constitute an act of self-defence?

While circumstances differ from case to case, the Constitution states that no one may take the law into their own hands.  However, should rape victims fear for their lives, they may protect themselves. It is justified if it is reasonably necessary to repel the attacker. The defender would have to prove that they were, in fact, in real danger, which becomes complicated as rape is a notoriously difficult crime to prove and often one’s word against another’s.

Standing Together Against Rape Culture

Of course, this is incredibly problematic as the law suggests that there are instances where rape victims don’t fear for their lives or can reasonably perceive when it is justifiable to repel their attacker. Simply put, we need to do more for the women of South Africa and take more action against the pervasive rape culture in our country- there can’t be grey areas when it comes to rape.

For now, we have to do what we can for women who need it the most since the law has become incredibly inaccessible for the underprivileged. Cape Town resident Natalie Kendrick started a fundraising campaign for “Lion Mama” and LAW FOR ALL also stepped in to help.  LAW FOR ALL covered all of the expert reports that were needed for the case.

The woman and her daughter will now be receiving counselling and protection in Queenstown, Eastern Cape.

* The woman cannot be named to protect her and her daughter’s identities.