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.
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.