Article: The South African Legal position of using a firearm in self-defence

This article clarifies the legal position of self-defence, particularly in an instance where a firearm is use. The perspective it provides is based upon legislation, case-law and academia. The legal underpinning of this article is based upon the legal possession of a handgun.

The rationale of the lengthy process of legally obtaining a firearm licence is to ensure that the licensee is competent in two unit standards listed on the national Qualifications Framework. The first unit standard bears the South African Qualifications Authority Unit Standard Identity 119649, and is entitled ‘Handle and use a handgun.’[1] The learning outcomes are: ‘Handling a handgun, using a handgun, and carrying out basic inspection and maintenance of a handgun for safe use.’[2] This unit standard is tested by means of a prescribed written test.[3] The second unit standard bears the South African Qualifications Authority Unit Standard Identity 117705, and is entitled ‘Demonstrate knowledge of the Firearms Control Act 2000 (Act No 60 of 2000) applicable to possessing a firearm.’[4] The learning outcomes are: “Demonstrate understanding of the statutory duties and obligations of firearm ownership as contained in the Act; demonstrate understanding of the statutory prescriptions applicable to the possession, handling, carrying, storage and use of firearms as prescribed by the Act; and demonstrate understanding of the statutory prescriptions applicable to the possession and storage of ammunition as prescribed by the Act.”[5] This unit standard is tested by means of a prescribed practical test.[6] One of the assessment criteria, namely assessment criterion one, calls for an understanding of self-defence.[7] The learning outcome is that descriptions must be provided of common law related to private defence and necessity of use.

In practice an applicant must first obtain a training certificate from an accredited training provider, and thereafter apply to SAPS for a competency certificate.[8] The first step is to complete the SAPS 517 – Application for Competency, the second step is to complete three SAPS Annexure 86 forms – Questionnaire for References Once these two forms are properly completed, the applicant is to take the two forms (the SAPS 517 and the SAPS 86), along with three certified copies of the applicant’s identity document (no passport), two certified copies of the training certificates and the statement of results, and two colour passport photographs to the designated firearms officer at the police station in the area where the applicant is ordinarily domiciled.
Once the aforementioned process is properly completed, the applicant will be furnished with a competency certificate, and the third step of the process can be tackled. An SAPS 271 form must be completed.[9] This form must be submitted to the designated Firearms Officer along with the following supporting documentation: Two certified copies of the applicant’s identity document, a certified copy of all credit card type gun licenses front and back ,certified copy of proof of residential address, photos of gun safe showing the proper installation thereof, two certified copies of the training certificates as well as the statement of results, and a motivational letter.
The successful incumbent will then be issued with a Firearm licence in terms of section 13 of the Firearms Control Act 60 of 2000, which provides:

“Licence to possess firearm for self-defence.
1) A firearm in respect of which a licence may be issued in terms of this section is any—
(a) shotgun which is not fully or semiautomatic;
or
(b) handgun which is not fully automatic.
(2) The Registrar may issue a licence under this section to any natural person who—
(a) needs a firearm for self-defence.”
This section assumes that certain prior learning is in place namely an understanding of self-defence.
(b) cannot reasonably satisfy that need by means other than the possession of a firearm.
(3) No person may hold more than one licence issued in terms of this section.
(4) A firearm in respect of which a licence has been issued in terms of this section may be used where it is safe to use the firearm and for a lawful purpose.”

Self- defence is also known as private defence in South Africa. Self-defence, using a firearm, may be seen as lawful activity aimed against a perpetrator for the protection of the individual’s or a third party’s life, which is threatened or infringed by the perpetrator, and the perpetrator poses a threat of serious violence to the victim or any other person. Alternatively, the perpetrator is suspected of having committed a crime which involves causing serious bodily harm to the victim.[10]
Self-defence is therefore the legally justified use of force to protect oneself or a third party from danger, where the use of a firearm is reasonably necessary and proportional in the circumstances, where the perpetrator poses a threat of serious violence to the victim or a third party. There are legal requirements for both the act of defence as well as the attack.[11]

In Mphahlele v S (A592/2016) [2017] ZAGPPHC 669 (17 October 2017), the court provided as follows: “In his publication, Criminal Law[1] C.R. Snyman provided the following definition of private defence: "A person acts in private defence, and her act is therefore lawful, if 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 interest which deserves to be protected, provided the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is no more harmful than necessary to ward off the attack. According to our law, an act which might otherwise be unlawful may be taken as constituting self-defence or private defence, if it complies with requirements set. Such requirements are the following:
(a) The act must be directed at the attacker.
(b) The defensive act must be necessary.
(c) There must be a reasonable relationship between the attack and the defensive act.
(d) The attacked person must be aware of the fact that she is acting in self-defence.”[12]


Section 49 of the Criminal Procedure Act 51 of 1977 has being amended four times since its inception. The key amendment is the Criminal Procedure Amendment Act 9 of 2012. Parliament did approve an amendment in 1998, but this amendment came into force in 2002, largely due to two cases.

The two leading cases related to the use of force, which have influenced such amendment are: Govender v Minister of Safety and Security [2001] JOL 8324 (A) ( Hereinafter the Govender case), and Ex Parte Minister of Safety and Security and Others: In Re: S v Walters and Another
2002 (7) BCLR 663 (CC) ( Hereinafter the Walters case).
In the Govender case,[13] the court weighed the right to protect property with the right to life. This case involved the shooting of a suspect Justin Govender in the back by Inspector Cox.

In brief, police noticed that vehicle was moving recklessly, following procedure they radioed the vehicles details to their control room. The feedback that they received informed them that the vehicle was stolen. They engaged in a high speed chase. The vehicle came to a halt and the driver along with another suspect fled on foot. Inspector Cox gave chase, Cox gave a verbal warning, and shortly thereafter concluded that he would be unable to arrest one suspect as the suspect was way ahead of him. He then took aim and fired at Govender’s legs, missing his legs but hitting his spine. Govender survived the shooting but is now disabled.

Section 49 as it was then read as follows:

“49 Use of force in effecting arrest
(1) If any person authorized under this Act to arrest or to assist in arresting another, attempts
to arrest such person and such person
a) resists the attempt and cannot be arrested without the use of force;
or
(b) flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees; the person so authorized may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing.”

The court held that the right to life far outweighed the right to property.[14] The court interpreted section 49 as it then was, as catering for a situation which excluded the use of a firearm except for two very specific situations. The arrester must have reasonable grounds for believing that
1. that the suspect poses an immediate threat of serious bodily harm to him or her, or a threat of harm to members of the public; or
2. that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm.[15]
As such the court found in favour of the Govender.

The Walters case dealt with the legality of killing a fleeing suspect who committed theft. In this case a pepetrator broke into a bakery. The owner and his son shot and killed the perpetrator while he was in the process of fleeing. The court accepted the findings in the Govender case, and held that the test of proportionality between the seriousness of the relevant offence and the force used should be expanded to include a consideration of proportionality between the nature and degree of the force used and the threat posed by the fugitive to the safety and security of the police officers, other individuals and society as a whole.[16]

The court laid down the following guidelines:


“(a)The purpose of arrest is to bring before court for trial persons suspected of having
committed offences.
(b) Arrest is not the only means of achieving this purpose, nor always the best.
(c) Arrest may never be used to punish a suspect.
(d)Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.
(e)Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.
(f )In deciding what degree of force is both reasonable and necessary, all the circumstances
must be taken into account, including the threat of violence the
suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.
(g)Shooting a suspect solely in order to carry out an arrest is permitted in very limited
circumstances only.
(h)Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest
(i)These limitations in no way detract from the rights of an arrester attempting to carry out an
arrest to kill a suspect in self*defence or in defence of any other person.”[17]

So, the seriousness of the offence is not the only consideration in using lethal force, the criterion of the danger which the perpetrator poses to society is an important consideration.
Bearing in mind that in the Govender case, lethal force was not used in that the perpetrator survived, the Constitutional Court in the Walters case provided that the prerequisite in the Govender case to use force, should also be the prerequisite to using deadly force. It’s no longer sufficient to argue that a criminal offence was committed and therefore lethal force was used. The court made it clear that there are many different offences ranging from picket-pocketing or grabbing a mealie from a fruit-stall to murder and armed robbery.
The Constitutional Court, in deciding the matter, stated that the test accepted in the Govender-case as prerequisite to the use of force (section 49(1)), should at the very least also be the prerequisite for the use of deadly violence

Section 49 in its current form, is as such due to the implementation of the 1998 amendment which was implemented in 2003. It provides as follows:

“49. Use of force in effecting arrest
(1) For the purposes of this section-
(a) ‘arrestor’ means any person authorised under this Act to arrest or to assist in arresting a suspect;
(b) ‘suspect’ means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and
(c) ‘deadly force’ means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.
(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrest or may use deadly force only if-
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.
[S. 49 substituted by s. 7 of Act 122/98 and s. 1 of Act 9/2012]”[18]


[1] SAQA “Handle And use a handgun” http://allqs.saqa.org.za/showUnitStandard.php?id=119649 (Date of use 10 May 2019).

[2] SAQA http://allqs.saqa.org.za/showUnitStandard.php?id=119649 (Date of use 10 May 2019).

[3] Section 9(2)(q) of Firearms Control Act 60 of 2000.

[4] SAQA “Demonstrate knowledge of the Firearms Control Act 2000 (Act No 60 of 2000) applicable to possessing a firearm” http://regqs.saqa.org.za/showUnitStandard.php?id=117705 (Date of use 10 May 2019).

[5] SAQA http://regqs.saqa.org.za/showUnitStandard.php?id=117705 (Date of use 10 May 2019).

[6] Section 9(2)(r) of Firearms Control Act 60 of 2000.

[7] SAQA http://regqs.saqa.org.za/showUnitStandard.php?id=117705 (Date of use 10 May 2019).

[8] Section 6 and 9 of Firearms Control Act 60 of 2000.

[9]

[10] Section 49 of the Criminal Procedure Act 51 of 1977.

[11] Section 49 of the Criminal Procedure Act 51 of 1977.

[12] Mphahlele v S (A592/2016) [2017] ZAGPPHC 669 (17 October 2017), para 20 and 21.

[13] Govender case.

[14] Govender case p 23, 24 and 25.

[15] Govender case p 23, 24 and 25.

[16] Ex Parte Minister of Safety and Security and Others: In Re: S v Walters and Another
2002 (7) BCLR 663 (CC) ( Hereinafter the Walters case) p 665.

[17] Walters case p 666

[18] Section 49 Criminal Act 51 of 1977.