Three Shots at the Boundary Wall
Nomsa, 34, holds a section 13 licence for a 9 mm pistol kept in a speed-safe bolted to her bedroom wall. At 22:40 she hears glass breaking. Three men are in her lounge. She shouts; one man advances on her with a knife, saying he will 'finish' her. She fires one shot; he collapses. The other two run out of the front door, across the yard, and begin climbing the boundary wall. Nomsa walks to the open door and fires three quick shots at the last man as he goes over the wall. He is hit in the back and falls into the lane. One of her rounds passes through the wall and through the window of the neighbour's yard, where a 9-year-old is asleep in a room about 1,5 m away. Her hands are shaking, she is 10 weeks pregnant, and neighbours are shouting in the street.
1. Was the first shot lawful? Give the full reasoning, not just the conclusion.
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Test applied: private defence Private defence requires (i) an unlawful attack, (ii) against a legally protected interest, (iii) which has begun or is imminent, (iv) force that is necessary to avert the attack, (v) force that is reasonable in proportion to the threat, and (vi) force directed against the attacker.
Application
- Unlawful attack: three intruders in an occupied home at night, one advancing with a knife and threatening to kill her. Clearly unlawful; life and bodily integrity are protected interests.
- Imminence: the knife-carrier was closing distance inside her own home. There was no duty to retreat in her own dwelling, and no realistic chance of flight with three intruders present.
- Necessity and proportionality: a knife at close range is a lethal threat. A single shot at the advancing attacker is the minimum force that could stop him; a firearm was the means she lawfully had.
- Direction: the shot was aimed at the attacker.
Conclusion The first shot falls within private defence. It is also relevant that she stopped after one shot at that attacker - this supports the account that she was responding to a threat rather than venting anger.
Caveat The assessment depends on her honest belief on the facts as she perceived them. If she were mistaken about the threat, putative private defence could exclude intention but not negligence - which is why her statement must describe precisely what she saw, heard and feared, and why.
2. Assess the three shots fired at the man going over the boundary wall.
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The decisive question is whether the attack was still in progress.
Application
- By the time she fired, the two surviving intruders had broken off the attack and were fleeing over the wall. They were no longer threatening her, and were moving away.
- Private defence ends when the attack ends. Shooting a person in the back as he flees is not defence; it has the hallmarks of punishment or retaliation.
- She also left the relative cover of the doorway and moved towards the door to get the shot away. That is pursuit, not defence.
- On the facts, three rapid shots at a departing man create a strong inference that she intended to hit him and was reckless as to whether he was still a threat. Depending on the court's findings on intention (including dolus eventualis), the conduct could found a charge of murder, or at least culpable homicide or assault with intent to do grievous bodily harm.
- Her pregnancy, shock and fear do not make the conduct lawful. They are mitigation, relevant to sentence, not to guilt.
Conclusion The three shots at the wall were almost certainly unlawful and excessive. The lawful course was to stop firing the moment the men turned and ran, secure the doorway, and call the police. The difference between the first shot and the last three is precisely the difference the exam is testing: the threat had ended.
3. What is Nomsa's position regarding the round that entered the neighbour's yard, and what must she do in the minutes and hours after the incident?
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The duty of care
- Every round fired is the shooter's responsibility until it stops. A firearm owner must be sure of the backstop and what lies beyond the target before firing.
- A 9 mm round will pass through glass, thin brick and plasterboard. Firing towards a boundary wall in a built-up area, at night, without knowing what is behind it, falls short of the standard of the reasonable, prudent firearm owner.
- That does not necessarily create a separate charge, but it is powerful evidence of negligence and it will be weighed in any prosecution arising from the fleeing man, and it may support a charge of discharging a firearm in circumstances where a person's life or safety is endangered.
Immediate steps (the minutes after)
- Stop firing. Confirm no further threat.
- Render assistance to the injured man and call an ambulance and the police. A failure to do so is morally and legally damaging.
- Do not move or tidy the scene. Preserve positions, cartridges and the knife.
- Make the pistol safe and secure it, but do not clean it or unload it in a way that destroys evidence - hand it over when SAPS asks.
- Do not answer detailed questions or post on social media. Give a full, accurate statement, preferably with legal advice, describing exactly what she perceived at each moment.
- Check on the neighbours and the child immediately; if a round entered an occupied room she must establish whether anyone was hurt.
- Expect the pistol to be seized and to face arrest and an investigation. Cooperate; do not resist seizure.
Summary She has a strong defence for the first shot, a weak to non-existent one for the last three, and a serious explaining job on the round that crossed the boundary.