I am often asked when you should shoot someone. You know that old joke? When you see you mother-in-law stumbling around your back yard covered in blood? Reload and resume firing lad! In fact, this is no joking matter and hard to answer, for the law is an inexact science at the best of times. It deals with humans and what humans are up to. This means that the truth is very often stranger than fiction. Hence I must tell you that each incident is different and will be judged severely. And that I wrote it is very simple non judicious English. It is a general discussion only.
Any first year law student will tell you that you learn legal definitions by heart. It is crucial and you don't do much else besides that during that year. Yes there are language courses too, in my time Afrikaans, English and Latin. But mostly it is legal definitions and I assure you - If you wake me up in the middle of the night to ask what is "murder" I will tell you the legal definition and then murder you for waking me up just when I started dreaming of my late wife. With the Pistorius case and the State's appeal, this has come the forefront again. What is murder? What is culpable homicide (murder in the second degree in other countries) and how do lawyers decide which is which. What is dolus eventualis? K, when can we shoot someone legally? This I am asked a lot.
It all comes down to intent. What did you intend (dolus) to do and there is several ways we look at it. First is dolus directus which is easy - you want to murder someone and you do so. Secondly is dolus indirectus, you want to murder someone but you murder the wrong person, the case book example is you throw a knobkierrie towards you mother-in-law, she ducks and you hit your wife - who did not duck, and she dies. Then the one made famous again by Pistorius, dolus eventualis, here you foresee that your action could kill someone, but recklessly, you carry on. Ironically, the case books have one example we know only too well - you shoot through a closed door and you know that your bullets will go through that door, and yes it may hurt someone, and yet you carry on doing so. If the court finds that is you, intent is proven, and you are guilty of murder. The same if you drive up and over a hill, recklessly on the wrong side of the road and at high speed in the dark. You know your actions are dangerous, but you carry on. You don't know the car you crash into from a bar of soap but many lawyers will argue it is murder (never been proved in court as far as I know, unfortunately).
Now note we are not discussing the Pistorius case or its merits here. I have nothing to contribute and find it boring as I do with all criminal law. This is background to our question, when to shoot. The Court of Appeals will let us know if Pistorius is going to spend a lot more time in jail or not. They are exceedingly clever Judges; the very best of the normal Judges become an Appeal Court Judge and the right to write "JA" behind his name. They have the best legal library in the country. Every LLM (Masters in Law) degree where the thesis is rated worthy enough is kept in their library as is every LLD (PhD in Law) thesis. They are situated here in Bloemfontein and unless you are paid very well, a place to be avoided like the very plague. Their staff is really arrogant (without reason) and they have strange rules to comply with. For instance everything you give them is six fold, that is the original plus five copies and it must be bound in such a way that no possibility exists that it will scratch the wooden benches. It must also be perfect and marked in a very particular way. They check every page no matter how long it takes before signing for it.
Since they only work on paper, the poor advocates, they sweat blood in that place, are only called in to give oral submissions at the end. There are no witnesses called. This is good and bad for you may need to know the tone of the answer. For instance, the example used is: "Did you shoot the Sheriff?" Witness / accused (sarcastically) "Yeah sure I shot the Sheriff" and that my reader is how dangerous paper alone can be. But fear not, it is the highest court in the land where no long haired liberal human rights crap is involved and they are beyond words good and smart. I have no doubt they will give us legal clarity and why they came to their decision and it will cost Pistorius dearly if it is against him for they can overturn the first judgment and then will increase the sentence. It happens a lot.
There is something you must always remember and all policemen will smile when they read this. What you decide to do, shoot or not, is done in a fraction of a second. The Judge has years to decide if you did right or wrong. So the first rule is to accept, not to take note, but accept this as sure as the sun will come up tomorrow, that taking of a life is extremely serious. I don't want to hear things from you like a black life is less important or a white life is or whatever your racial outlooks are. Hear my words and advice, in law, life is life. Do not become trigger happy.
Note that for you to legally kill someone...that someone must be attacking you and you must actually believe he is capable of killing you and that very attack must be taking place right now. Ok, what did I just say? Firstly, the attack must be against you or another human being. Not against your property (the big change since my days in the Police). It must be serious, so serious that you believe you are in great danger and fear for your life. And lastly it must be done right now. You cannot shoot someone two days later because he attacked you two days before. No way will you get away with it.
Then, if you have someone cornered, and he poses no risk to you, you cannot shoot him. It would be murder. You have no right in law to take the law in your own hands, we expect you to detain the person you have cornered and call the police. Otherwise, hear my words; you will have legal troubles you don't want. But if he opens that door and comes at you with a knife? Different story and look what I said before, directly attacking you, in serious danger and happening right now. Then you can shoot.
You also need to understand that your defense must be in proportion to the attack. You cannot shoot him four times when the first shot would have stopped him. Or shoot a child of ten years and say you were scared and believed to be in deadly danger - it is different if that "child" is 17 years old and six feet six or threatens and attacks you with a weapon. It must be reasonably to proportion of the danger you are facing.
Then we look at necessity and self-defense which is not the same thing in law. It depends on what you, as human being, were thinking when you act in self-defense. The court will ask; did this accused really believe he was in danger? Even if he was, by looking at the facts, not in danger...it is a subjective test. Practical example, you are robbed with a toy gun, there is no objective danger, you don't know that, you believe it is a real gun and you shoot him down.
Necessity, on the other hand, is an objective test, were you in danger or not? Was it a toy gun or was it not? Can a toy gun kill a human? Can you see the difference? You must know your definitions to understand this for it makes or breaks your case.
So what does all of this imply? One, if you shoot all hell will break lose and the court has all the time in the world to look at what happened. It is very serious even if no-one dies. So never shoot for fun. Two, you can only shoot and get away with it if directly attacked and that attack is serious enough for you to believe you are in deadly danger and is happening right now. Three, the response, the shooting from you must end immediately when the threat is neutralized. In the hunting field we talk of "bok koors" which means the hunter keeps on firing for no reason at all. I can tell you, it takes a lot of training to get someone to stop shooting. I saw it many times in my service days and sometimes you must give the constable a fatherly klap (slap) against the head to stop him from shooting.
Then what happens if you did shoot? First you call your lawyer, second you call your lawyer and third you call your lawyer. If you don't have one, get to know one and keep their numbers with you....an after-hours number because this type of thing always happens in the middle of the night. Secondly, you call the police and thirdly you do not attempt to disturb the crime scene. Yeah we know of dragging the body inside your house, stabbing yourself with a knife, placing a knife next to the body etc. Listen to me; you are not clever enough to overwrite forensics. Just close the door and wait outside and don't be stupid. If you feel like it, take lots of pictures (without disturbing the crime scene) or if you have a CCTV camera as you should, make sure only backups go to the police and they must sign for it. Do not go on Twitter or FB and tell the world. Just shut up.
Do you need to answer police questions? No, and especially not when they say "it is all right, it can be sorted out etc." The golden rule is that a sympathetic policeman is a danger to your health. Your lawyer does the talking here, you shut up but you can, of course, greet the officers and show them the body etc. They would want the gun used so make sure it is safe, meaning unloaded. If your victim had a gun, leave it alone, you don't want your fingerprints on it.
The reason for the no talking advice is that most people are in a state of shock. Unless you are mentally ill it takes a lot from you to kill another, you do feel the emotions afterwards and you cannot think clearly. Hence you keep quiet, be polite, and make arrangements for bail money. The process will start and it will be long and it will be expensive. If at all possible, don't shoot.
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.