Coming to the rescue - hero or villian?

KNYSNA BUSINESS NEWS - Society’s senses are overwhelmed on a daily basis with news of violent crimes occurring on an alarmingly regular basis. When another person’s life is in danger what does the law say about coming to their rescue? What does the law say in circumstances where the attacker is killed by the rescuer – is this allowed?

When you take action to defend another person (or even your or their property) it is important to understand the legal principles of “private defence” in our law as this will determine whether or not the hero is in fact a villain.

The point of departure in this discussion is every person’s fundamental right to life and bodily integrity which is enshrined in the Constitution. When a person who has come to the rescue of another faces criminal charges themselves, for assault or murder, the court will have to consider the lawfulness of the accused’s conduct.

When you are charged with a criminal offence the State, represented by the national prosecuting authority, must prove the existence of all of the elements of the crime beyond a reasonable doubt. The elements of a crime include: an unlawful human act committed intentionally by an accused (note this definition is simplified to apply to the subject of this article).

Accordingly one of the elements is the lawfulness of the accused’s conduct. In some instances, for example private defence, necessity or emergency, a person’s actions which would otherwise be a crime are legally justifiable.

An easy example is that speeding and running red robots is a criminal offence. If however the accused (the driver) was rushing his wife, who was in labour, to the hospital he could raise the defence of “emergency” which, if proven, would justify or excuse this otherwise unlawful conduct.

In a like vein private defence is a defence which, if proven, would exclude or justify the unlawfulness of a crime.

The intervening conduct may take various forms such as an assault, the pointing of a firearm (in itself a criminal offence), or shooting and killing the attacker.

If a person at his criminal trial pleads that his actions were justified and raises private defence, the courts will examine the facts of the case and take the following factors in to account:

Whether an unlawful attack was in process or imminent;
Whether the person or property was legally worth protecting;
Whether force was necessary to protect the person or property threatened;
What alternative options existed to avert the threat;
Whether the force was directed against the attacker; and
Whether the force was proportional to the threat.

A court would weigh these factors against the conduct of the accused who purports to have acted in private defence of another person.

This is more readily explained by way of an example: John is outside watering his garden and witnesses his neighbour Sarah arriving home and pulling in to her driveway. Suddenly an unknown assailant appears from hiding, pulls Sarah from her vehicle, throws her to the ground and points a gun at her. Reacting quickly John fetches his own firearm, returns outside and shoots the assailant who later dies from his wounds. John, an apparent hero, is arrested and charged with murder.

In applying the above factors the courts employ a legal fiction known as the “reasonable man” test: would a reasonable person in the same circumstances have acted as John had?

In the above scenario John’s defence may well succeed. If however the assailant was unarmed, or armed with a lesser weapon such as a knife, the question that will be raised is whether or not a warning shot may not have sufficed.

Legal consequences flow from all actions and the use of extreme force should never be considered or taken lightly. Where no other option is reasonably available, reasonable and necessary force may be applied against an attacker insofar as it is required to halt the attack.

The circumstances of every case is unique, and one cannot compare one decision to exert force to a decision in another set of circumstances. Likewise, what may or may not be a justifiable defence will always need to be approached with circumspection. Anger, provocation or fear alone will not be accepted or used to justify the use of force, especially deadly force, and “to shoot or not to shoot” must be weighed against any other available option.

* This column is provided for general information purposes only and does not constitute legal advice. Every situation has a unique set of circumstances and specific professional advice should be obtained in respect of your particular needs. Mosdell Pama & Cox Inc does not accept responsibility for any loss or damage, direct or indirect, which may arise from or be attributable to any reliance on information contained in this column.

Julie Maynard

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