Rights Of Non-Protesting Citizens In Terms Of The Law
The Constitution of the Republic of South Africa, 1996 (the Constitution) states that everyone has the right to Freedom and Security of Person, which is the right to be free from all forms of violence. In addition to this right, we also have the right to Property, and to not be deprived of our Property.
It is important to note that with every right there is a responsibility when exercising that right. While people do have rights to protect their families and/or properties, such protection must be in line with the Constitution and the rights of the person/s who pose a threat to your family and/or property.
As stated above, nobody is above the Law, and both the person who may be causing the harm and the person in a vulnerable position are equal in terms of the Law and have equal rights.
Our Law does, however, provide for a defence of self-defence when your rights as a person or rights to your property are being infringed upon. The Law does provide for self-defence in some of the following situations:
- The attack against you must be unlawful. The person attacking you must have entered or been entering your property illegally.
- The attack must be occurring when the act of defence is being committed. For example, the attacker cannot be attacked by you if they are walking on the street the next day. In this instance, the person exerting the force may be charged for assault, and the defence of self-defence falls away.
- The defensive action must be directed towards the attacker and not to a third party.
- The defensive action must be proportionate to the attack received. For example, if a person is throwing a stone at you, you should not shoot them, as the two actions have different levels of force.
Please note that the above is not a closed list and would be dependent on the circumstances. The final decision on guilt and whether self-defence has been satisfied would rest at the Court.
Use of a firearm
Where any person is using a firearm, the actual firearm needs to have been lawfully registered and acquired, as per the Firearms Control Act 60 of 2000. Where firearms are unlicensed, charges may also be brought against the person shooting the firearm for using an illegal or unlicensed firearm.
Further, in most instances, the use of a firearm would only be justified where you are faced with imminent danger. In cases in which you shoot a person, who was unarmed, it may be deemed to be assault, and you would be charged in a Court of Law.
In the current situation, we have seen the bravery of various members of the community, who are working with the South African Police Services (SAPS) to assist and prevent looting in communities.
Community policing is a great initiative, and as long as it is done to support the SAPS, it will safeguard and reassure communities under fear of siege.
However, the community needs to remember that excessive force cannot be used by them unless approved by the SAPS (only in extreme and unusual circumstances would this be allowed), or if it is done as an act of self-defence, as specified above.
If the actions of the person(s) are not deemed to be a form of self-defence or upon the request by the SAPS, community members can be charged for assault, murder and/or intent to do grievous bodily harm.
By assisting the SAPS, community members need to remember that they are not exempt from criminal proceedings in terms of the Law.
For further information, do not hesitate to get in touch with Rajaram Mvulane Attorneys at firstname.lastname@example.org.
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).