I remember back in the day when I served as street cop, to use the terminology made famous by Hollywood, that we said we have a fraction of a second to decide if we pull the trigger and the Judge has years to see if we were justified or not. I said in my police autobiography, more than 50 000 downloads now, thank you, that there is a wrong idea that we shot people left, right and centre. Every police shooting was investigated, thoroughly, and not all verdicts were “no one to blame” as the liberals like to say today. If less lazy, they would be able to check prison records, and will find many policemen convicted of murder and violent crimes, very few for white collar crimes like bribery or fraud (a liberal speciality, if you ask me). Because of yesterday’s blog, where we spoke about the legal rights of civilians working as security officers or community police forums to search people I was asked, and I translate to English to reach more people, this blog would be useless in Afrikaans, “What are my rights when a person or persons enter my house late at night or in the early morning hours? I wake up, they are inside my house, they are armed. I shoot them dead, what now?”
At JKLS Africa we specialise in practical law, that means I look down on academic answers which have no meaning to you, the client. And yet most (all) lawyers will give you a fifty page (if lucky, it may be 150) opinion on the question and charge tens of thousands or hundreds of thousands of Rand for it. We don’t do that. I think it is an entirely abusive system and not conducive to making sense anyway. It is interesting but I have yet to meet a client not in some sort of trouble when he meets with me. A legal consultancy, one as specialised as mine, is like a church, no place for jokes, this is a serious subject. Anyway, we know lawyers are boring people and insane also, mostly, who else can talk for weeks about the meaning of a word (it is important to find out what was meant) or simply cannot give you a straight and decent answer, it will cost them fees if the law is less murky.
Now the law is not rocket science, God knows, if an average person like me can write law degrees from a good university, at the time, not today, behind his name and pass the side bar exam, then you know the cream of society studied medicine or engineering, not law. Yet it can be complicated, otherwise we cannot charge you money for not really explaining to you what you asked. The problem is it depends entirely on the surrounding circumstances, really, every case is unique and the law can be bend, abused, if you wish. If you read any of my legal books or talk to me, you will hear me say, “the law is neutral” meaning it has a set of rules, and you can make it work for you, or against you and you have to use it or it will not do anything for you – take for instance an abused woman, unless she invokes the law, it stays a piece of paper signed by the President, it has no meaning to her. You get?
Right, to answer the question let us look at what the law says in simple terms. First, the taking of another life, human life, is prohibited except where there really is no other choice, that is why murder is such a serious crime. What is also these days of importance, it changed from my days in the 1980s, is that no life, human, can be taken to protect property. You are left with self-defence as a defence, and if an idiot, crying crocodile tears in court (it won’t help you in the long run). To have a successful defence you need to show that (1) the attack is directed on you and already happening or imminent (this will include an attack on the Missus behind you or at your children), (2) that the attack is serious, very serious – it is a matter of life and death (big problem when those thieves are armed with a toy gun and you don’t know it, then it becomes a subjective test, what did you believe at the time, not objective – was it a toy gun or not), and (3) is your response appropriate in relations to the threat against you (more about 3 later).
Right, you get? Now a word of warning and always remember this. We live in a country where you will have zero, zilch, sympathy from the police, courts and legal academics if you shoot someone dead even in your own home. You will most certainly be arrested as a matter of course, have to defend your backside in jail and then get bail, which will cost you tens of thousands if lucky. A junior advocate, and his attorney - between them - they will make you pay about R30 000 a day for a bail application and that can take a few days and I am conservative, really, it can be more and if the State opposes and they do so often, you may spend two years in jail waiting for a trial. Yes, this is realities. If you add the fact that statistics shows us that almost all, I am not aware of any other case, it is black men, below the age of 25 years who commits these crimes, house attacks, armed robbery, on white home owners, mostly but not always, and the police and courts are mostly black, accusations of racism will, sadly, always enter into the fray. You will be accused that you killed them because they are black, a silly accusation, totally irrelevant, but it happens. This makes your chances even less and it is wrong, race should never play a role and officially it does not, yet, it is plain enough to figure out.
Then let us look at your response, the third leg of your defence. I had cases or heard of them where the home owner used dum-dum (hollow point) rounds, they are better at killing. In a Special Forces test conducted a few years ago it came out that the Geneva Convention approved FMJ (standard issue, full metal jacket) rounds of a 9 mm Parabellum caliber, have a 93% chance not to kill the attacker, yes, 93% chance he will survive and cut your throat – see how the American Army are complaining of first shot, first kill ratios (a technical debate also discussed in my other books). A decent hollow point reverses the above, 7% chance on surviving, 93% chance in killing. I also say, in my fiction books as far as they are fiction, always “double tap” in the Weaver Stance, both hands, aimed head shots, using only hollow points. This is Special Forces stuff but we trained like that in my days in the police. It also indicates you wish to kill, not wound and will count against you, if you do the above, sadly so. Even the bullets used, will be checked and it is deadly evidence against your state of mind.
Many of you will now angrily say that “the criminal has more rights than you, the citizen!” Yes, damn right he does and that is our legal system and it is like that to protect you from police abuse. Let it go, make peace, practically, the bastard does have more rights than you. In this case, unless those invaders actually attack you, and a serious attack at that, you have no right to just start shooting. If you do, you will be found guilty of murder. No, you must warn them to leave, fire warning shots (change position now, the muzzle flash will betray your position) and call the police or other help, you cannot just shoot or shoot to kill or use bullets designed to kill. Whatever you do will be checked in great detail and as I said, you stand alone here, the law and the police will abuse the system to get you in jail and ruin you financially. I know this is a hard pill to swallow and note, this is not legal avdvice, it is a general opinion only and does not deal with a specific case.
A while ago we had some break-ins here where I live. It is normal in South Africa to suffer from crime, I doubt if anyone living here will not have a story to tell or a family member abused, murdered, or otherwise done in. We have frightening statistics, a murder every 30 seconds, yes, before you finished reading here, a few South African will be dead.
I don’t want to point fingers, as a former policeman and officer of the court, it saddens me when people are contemptuous of the police, courts and justice system in general. You will always have a few bad apples which spoils it for the rest and my own bad experiences with the police are widely documented, I wrote about it and placed the links in my police series books. You can judge for yourself and if you are in a First World country and reading here, be grateful, you have a wonderful life no matter what you may think, you were born in a better place than me and millions like me. Yet, we carry on, we have no choice and I suppose, are used to what you would find unacceptable. We have no choice; it is the luck of the draw.
What we find now, because the police, courts and justice system (the entire one, civil and criminal) is seen to be crap beyond belief (it is not, debatable for another day), is the rise and rise of security companies which will sell you exactly the same security services. I can tell you what you do not find in South Africa - open spaces in cities. We have parks but you would be stupid to go there, simply too dangerous. You cannot even visit a grave of a departed loved one, the cemetery is known as a place where you are attacked and abused. You walk through a forest, yes, you are attacked, raped, and murdered, brutally so. This is reality and you will not, I assure you, walk up to a house and knock on the door easily either. No, you find six to eight feet high fences or walls stopping access, they have electrified wires on top, CCTV, guard dogs, floodlights, alarm systems and armed response guards able to come and help you – and this is normal middleclass homes. Not where someone important or rich lives, all houses look like that. The security industry grows as fast as tourism and the shysters there are worse than any bad hotel experience you ever had. Much worse indeed and there are many.
I mean you may still survive an upset stomach with food poisoning and yes, we know the sheets you sleep on in the “Honeymoon Suite” you got on special, may very well give you an itch and worse, if unlucky. And if you are American or an uitlander (Afrikaans, foreigner), every beggar will know you are easy to give money away and every wild animal will know it can eat you since you don’t realise they are wild and able to kill and will kill. Every year we will lose a few uitlanders and the lion must then be shot, unfairly so. All this you may well survive, but an armed intrusion, home invasion? Nah, chances are 70% that you will be raped, murdered and if not, tortured. This is actual statistics, you will do very well to read my article, it is only 70 pages, on Basic Home Security, I understand that it saved many lives worldwide.
Now I can tell you, there is no such thing as a writer honoured in his own community, not unless rich and famous. Nor would an expert be honoured, not unless he charges ridiculous fees. Yet, I know about security, I wrote on it, was the legal adviser for the biggest one in the world for a few years and I get how they operate. It is all in the article, Basic Home Security and so I will not repeat myself, you will shake your head when you read it, many others did, it is rather damming. The question is what rights under law do such a security company have?
Because of the two break-ins we suffered, the entire complex wanted to join a “Community Policing Forum” (CPF) which is an English Police system imported since 1994, obviously I think and said so, it is a crap idea and system which indicates failure with a capital F from the police. I served on one, by the way, as chairman and so I can tell you, nonsense, ineffective and to be avoided. Of course, you may disagree, you have that right. To answer the legal question on their rights, almost nothing. They, the security companies and CPF members are civilians, they have no power of arrest as does a genuine policeman and must fall back on a common law principle, a “citizens” arrest unless acting under direct instructions from a policeman who happens to be around and shanghaied them to help him. This also means that they cannot stop and search you, they have no such rights nor can they physically abuse you, threaten you or do anything illegal (no policeman can do the last, but he can search you, certainly, and without a warrant).
Why do I mention this? Some such members of a CPF did try to search some people, they found “dangerous weapons” which may be a knife, a stone, a club or a tank, I don’t know, and guess what? They were arrested and spend a weekend in jail for their good deed. The case is ongoing. So what do you think will the legal consequences be if a white man, in this country so obsessed with race, illegally search and detain a black man? The same as a black man, in this country so obsessed with race, illegally search and detain a white man? Nah, don’t kid yourself, the calls for racism is the “in thing” currently. Any type of criticism is seen as “racist” and that includes those trying to reduce crime. You are warned, rather walk away and hammer your insurers, it is a lost cause. No one from the police, courts or government is going to be appreciative or sympathetic to you. They will fall back on the “you should not take the law in your own hands, that leads to chaos” argument. And when white, and you detain a black, ah well, you are racist now! You will be arrested, most certainly. Let it go!
We all know that the law is for boring people, but it is also about rules which must be slavishly followed, and if not, will have terrible consequences for you in court. This is called compliance and it more about the business risks you expose your company to than anything else.
Just this week we had an interesting, if boring, I am sorry, case. A client underwent a medical procedure and as it is with these things, the medical fund or aid, is heavily involved, approving it beforehand. Logically they then receive the account, bills, from the doctors and pay out if correctly claimed. When there is a shortfall on payment, the patient is liable. This is common sense.
However, the law states very clearly in every country in the world that the patient / debtor must be informed that he owes the money and when it is due. Only then, the process is called "to be placed in mora," can the countdown begin to when the money becomes overdue and a problem. Up to then, and unless you did the above, you will never win any collection case in court. Yes, it is boring but fair, and what happens is that the patient is not informed that the medical aid failed for whatever reason, to pay the doctor fully. There is now a shortage which can be insignificant amounts or large, it does not matter, the principle is the same. The doctor then appoints someone to collect the money and the first text message is always a threatening one stating that the "the account is 30 days overdue" please pay.
Such a message is designed to infuriate me. In the first place, under law, the account is NOT 30 days overdue. In the second place, the patient, still recovering and elderly, gets a terrible fright, feels terribly bad and immediately pays even if it means getting up from sickbed. It leaves an extremely bad taste in the mouth of that patient, feeling abused and rightly so. And I must point out, it is not only medical men who are guilty of such shenanigans in law, everyone does it and they usually say they are from "legal" so you can get a proper fright even though none of them has much legal knowledge.
In my book, Your Worst Enemy, we spoke about the shenanigans of debt collecting at some length. I have expert knowledge, I hold two law degrees, I spent 5 long years at college and another six months at law school and passed my bar exams before practising as an attorney for eight years. I know all the tricks and quite a few you don’t know. You try the above to me, and I will hammer you and call your bluff and you will lose rather badly in court. But that is not really the point, what angers me is the lack of legal knowledge among the public. They don’t know the law, they stay abused and always will be. This is about legal risk and business risk.
It is pathetic in business to annoy a client and even worse a patient, where you automatically destroy the trust relationship so valued. Remember, this guy has not, repeat not, refused to pay you, he has not, repeat not, even been informed he owes the money, and yet, he is accused of being overdue! Let me explain, such action, will anger anyone, really it will and saying it is a system or computer error will not help your case, it is actually an admission of guilt. What good can come from antagonising your client without reason? All that will happen, as I pointed out, is that you, the doctor, will from now on be exposed as a fellow who threatens elderly patients for a few dollars (and see how the public hates you). You lie in your demands (so you are a lawyer too) and you obviously don’t know the law (which will be abused against you). This will cost you dearly in the long run, you lose patients, you run the risk of this escalating into a full blown court case which you will lose, badly, with punishing costs. You should get your systems sorted, your staff trained properly, and be compliant to the law, otherwise, try me, as I said in my police days. I am more than willing to come out swinging and I am not alone, many millions will agree, there is no reason to conduct business in such a way.
It is an entire odd fact that I found most people actually do wish to pay debts. See how many likes giving gifts, but dislike receiving? They are not bad people, if they can afford medical aid, I assure you, they can pay you also. Many doctors absolutely insist on medical aids or cash up front. I had some say to me over private discussions, that they will never deal with non medical aid members, they don’t want aggro to collect money afterwards. I get that, I also know I will never support such a doctor whose priorities in life is wrong, but that is me. Any professional and any labourer (according to God) is entitled to a fair wage, if owed, you should be paid, it is written.
What annoys me is the way the collection is done, by lies, misinformation, uncalled for illegal threats and what for? Know the law, read my books even if boring, so you can defend yourself against such business practices. The same for the one being owed, follow the law to the letter, don’t take short cuts, and you will have a good chance in court. I cannot help you if your backroom is not properly sorted, that includes contracts with very specific clauses designed to protect you. If you don’t, you will most certainly come of second best against people like me.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.