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Post by cjm on May 9, 2017 7:59:55 GMT
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Post by Trog on May 9, 2017 9:59:25 GMT
So how did it work 30 years ago?
The way I understood it was that, if you shot an intruder in your house, the police would conduct an investigation and hand over the docket to the prosecutor, who would decide if there is a criminal case? And only then would you be charged and maybe arrested?
But I think there still was a requirement for the necessity of self-defence to be demonstrated - you couldn't just shoot somebody because he is a stranger and in your house?*
Or you could warn him that you will shoot him if he does not leave immediately, and then do so?
Or you could arrest him, and warn him that you will shoot if he tries to run away, which you were then allowed to do? (After firing warning shots?)
(*) But these were lenient and depended on the circumstances - if a woman alone in a house came across a man with a knife she could shoot with no questions asked?
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Post by cjm on May 9, 2017 11:36:56 GMT
So how did it work 30 years ago? The way I understood it was that, if you shot an intruder in your house, the police would conduct an investigation and hand over the docket to the prosecutor, who would decide if there is a criminal case? And only then would you be charged and maybe arrested? But I think there still was a requirement for the necessity of self-defence to be demonstrated - you couldn't just shoot somebody because he is a stranger and in your house?* Or you could warn him that you will shoot him if he does not leave immediately, and then do so? Or you could arrest him, and warn him that you will shoot if he tries to run away, which you were then allowed to do? (After firing warning shots?) (*) But these were lenient and depended on the circumstances - if a woman alone in a house came across a man with a knife she could shoot with no questions asked? The law is the same. What has changed are instructions to the police to descend aggressively on any putative defense claim. They are very quick to arrest any person involved - despite ConCourt pronouncements decrying arrest where the flight risk is slight. It is possible that no one was arrested in this case as yet but the issues lurking are also exposed in the report: For years the courts have played ping-pong with the issue of onus when self-defense is pleaded. The issue gets very technical and to this day I am not sure that I understand it. A distinction is drawn between overall burden of proof, and a shifting onus as the trial proceeds. I think the latest is that the state has to disprove self- defense if it is raised - but don't quote me. The standard of proof is also relevent. Need the defense be rebutted beyond reasonable doubt - and so on. One can play many legal games with death and anguish. In any event, the perpetrator is assumed innocent until a judicial pronouncement of guilty.This means that the issue of onus as briefly described above, should not be relevent at the stage when the accused is arrested. In my view the discretionary aspects are deliberately warped to humiliate, traumatise and harass whites, who are most likely to be in possession of fire arms and who can effectively defend themselves. I also think that the situations where self-defense is raised are more common as a result of the avalanche of crime the ANC has unleashed on the country. I have pointed out before that in England the law is now such that a home owner enjoys a degree of protection against prosecution where he is attacked in his own home. The ConCourt, being so enamoured of "developing the law" does not seem to think that some protection for the double victim is also called for in SA.
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Post by cjm on May 9, 2017 14:57:54 GMT
So how did it work 30 years ago? (a) The way I understood it was that, if you shot an intruder in your house, the police would conduct an investigation and hand over the docket to the prosecutor, who would decide if there is a criminal case? And only then would you be charged and maybe arrested? (b) But I think there still was a requirement for the necessity of self-defence to be demonstrated - you couldn't just shoot somebody because he is a stranger and in your house?* (c) Or you could warn him that you will shoot him if he does not leave immediately, and then do so? (d) Or you could arrest him, and warn him that you will shoot if he tries to run away, which you were then allowed to do? (After firing warning shots?) (*) But these were lenient and depended on the circumstances - if a woman alone in a house came across a man with a knife she could shoot with no questions asked? I have numbered the possibilities for ease of reference. As to (a) I suspect as much, but will have to check under what circumstances the police could on their own initiative have investigated. As to (b) there are a large number of requirements for a valid plea of self-defense to stand. To think that a person can consciously evaluate a defensive response in the fractions of seconds often involved in serious attacks, render the requirements laughable appendages The mere fact that somebody is in your house would not necessarily justify you shooting him. There has to be an attack of sorts. There is ultimately only one solution: Save your life and argue afterwards. A problem is that if you are convicted of any crime involving a violent response, your guns will be confiscated and your licences suspended. Be warned. As to (c) the standard answer would be that one cannot resort to selfhelp unless an attack is immediately threatening. If not, you are supposed to get a court order or arrest the person. I have much difficulty with this one as one can act in defense of property as well. Can it really be that you have to suffer all the inconvenience of trespass untill the judicial system grinds into action. This gets even worse in rural areas where the police essentially disregards trespass. As to (d) Reasonable force can be used to apprehend an arrested person. However the last thing you should do is shoot. You are in deep trouble if you shoot at a fleeing person. Apparently shooting is not reasonable force. This is the practical reality. If you feel like arguing the point up to the ConCourt, feel free, but prepare for a rough ride. Even setting dogs on a person is fraught with danger. This is why stock theft and theft of agricultural produce are so difficult to contain. In most case the perps are much quicker and apprehending them is virtually impossible. Ultimately it is a race thing because the owners are generally white and the perpetrators generally of a different colour.
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Post by Trog on May 11, 2017 13:11:07 GMT
As to (b) there are a large number of requirements for a valid plea of self-defense to stand. To think that a person can consciously evaluate a defensive response in the fractions of seconds often involved in serious attacks, render the requirements laughable appendages The mere fact that somebody is in your house would not necessarily justify you shooting him. There has to be an attack of sorts. One should be able to formulate some rules of thumb, though? For instance, if all of the following pertains: 1. You discover a person in your house. 2. You do not know this person. 3. He gained entry into your house without your knowledge. 4. He carries a weapon of some sort. Then I'm pretty sure that I can shoot him without any further ado. Particularly if the weapon he carries is some sort of firearm. The fact that he has a firearm in these circumstances signals to me that he intends to use it, and surely the court cannot expect of me to ascertain beyond reasonable doubt that this was not his intention. Should the weapon be a knife or club or something, I might still do the following: 5. Tell him that if he comes any closer to me, I will shoot. (But only if he is more than 4 meters away from me. A person can cover 4 meters in less than half a second, which leaves me no time to protect myself should he wish to rush me. So then I will just shoot straightaway). I will also tell him that if he does not leave immediately, I will shoot him, and then do so. I will tell the court that, since I told him to leave, and because he was armed, the fact that he refused to leave, or moved closer to me, convinced me that he intended to do me harm. I cannot see how a court can possibly disagree with the above. Also, note that the above does not in any way absolve Oscar Pretorius, for example. In short, it should only be necessary to demonstrate to the court that a reasonable person had cause to believe that he was in danger of physical harm unless he shot the intruder. This is for a particular set of circumstances, of course. One could find rules of thumb for others, as in for instance the Oscar Pretorius case, should he really have believed an armed intruder to be hiding behind a closed door. Or when the intruder is known to you, but is drunk and aggressive - that sort of thing.
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Post by cjm on May 11, 2017 18:10:41 GMT
As to (b) there are a large number of requirements for a valid plea of self-defense to stand. To think that a person can consciously evaluate a defensive response in the fractions of seconds often involved in serious attacks, render the requirements laughable appendages The mere fact that somebody is in your house would not necessarily justify you shooting him. There has to be an attack of sorts. One should be able to formulate some rules of thumb, though? For instance, if all of the following pertains: 1. You discover a person in your house. 2. You do not know this person. 3. He gained entry into your house without your knowledge. 4. He carries a weapon of some sort. Then I'm pretty sure that I can shoot him without any further ado. Particularly if the weapon he carries is some sort of firearm. The fact that he has a firearm in these circumstances signals to me that he intends to use it, and surely the court cannot expect of me to ascertain beyond reasonable doubt that this was not his intention. Should the weapon be a knife or club or something, I might still do the following: 5. Tell him that if he comes any closer to me, I will shoot. (But only if he is more than 4 meters away from me. A person can cover 4 meters in less than half a second, which leaves me no time to protect myself should he wish to rush me. So then I will just shoot straightaway). I will also tell him that if he does not leave immediately, I will shoot him, and then do so. I will tell the court that, since I told him to leave, and because he was armed, the fact that he refused to leave, or moved closer to me, convinced me that he intended to do me harm. I cannot see how a court can possibly disagree with the above. Also, note that the above does not in any way absolve Oscar Pretorius, for example. In short, it should only be necessary to demonstrate to the court that a reasonable person had cause to believe that he was in danger of physical harm unless he shot the intruder. This is for a particular set of circumstances, of course. One could find rules of thumb for others, as in for instance the Oscar Pretorius case, should he really have believed an armed intruder to be hiding behind a closed door. Or when the intruder is known to you, but is drunk and aggressive - that sort of thing. In our times it would be foolhardy not to take drastic defensive steps in the hypothetical case presented. You might even escape conviction for not having the necessary murderous intent (not because you acted in self-defense). All the same, the legal position remains ridiculously biased against a person molested in his own home. In the example, the first problem is whether there is an attack of sorts. The person is trespassing - that is clear. Trespassing can under the circumstances be regarded as an attack on your rights. Presumably you can force him off the premises by the least force necessary although already I ask myself whether this does not amount to unlawful selfhelp? Should you not ask the person to leave and then call the police? I know this sounds ridiculous and is an invitation to get assaulted, but you will be asked whether you communicated with the intruder. Even better, you should leave the house until the situation is resolved by officialdom in some way or another. Locally some farmers tried to prevent illegal shacks being put up on their land by destroying the incomplete structures. Most of these cases are resolved by the farmer folding, paying damages, re-erecting the incomplete structure. Surely, while these strucures are still incomplete, there is an ongoing attack on the rights of the land-owner. I can assure you this is not the view of the State. They try to force you to initiate civil cases to stop the occupation. I append below the dated text, shorn of references, of a introduction to criminal law dealing with self-defense. It illustrates the complexity of the issues which the defender often has to evaluate in a few fractions of a second. I am protesting against innocent, law abiding people, at random, being subjected to attacks and then arrest, criminal investigations, trials, convictions and vague legal principles. The text is dated, but should do as a general guide. It relies for certain conclusions on Ex parte Minister van Justisie: In re S v Van Wyk, but extreme caution should be exercised as doubt has been expressed more than once by practitioners on whether the ConCourt will follow that case ( a relic of the apartheid judiciary).
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Post by Trog on May 12, 2017 7:05:43 GMT
Burchell & Hunt: Criminal Law and Procedure, Juta, 1983, pp322 et seq On the whole, I can live with that. In some cases it is even rather lenient - seems I can klap a bloke who insults my wife. (That probably won't wash, these days, and a good thing to - with crimen injuria on the way out, which I approve of). Anyway, the concluding paragraph basically says that the court is to handle these events on a case by case basis, whilst leaning favourably towards the person who found himself in a situation of having to defend himself. It suppose it is this that has changed. (For a while, I think, the courts were VERY lenient towards cases of self defence, which perhaps triggered an opposing sentiment. I had the feeling that if you shot a burglar in your house or even your erf in almost any circumstances, the police and the judiciary would not expend huge resources to examine the particulars of the situation. Which very often were retaliatory rather than defensive). Anyway, I think my hypothetical rules-of-thumb set of circumstances above would meet all of the requirements detailed in Burchell & Hunt? Especially considering that one can plead the well-published modus operandi of farm-attacks and home-invasions as practised in South Africa over the past 2 decades, which in the mind of a reasonable man would disqualify the possibility of 'flight' as a possible option.
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Post by cjm on Jul 11, 2017 13:00:30 GMT
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Post by cjm on Jul 13, 2017 16:59:47 GMT
Veiligheid: Waak teen waarskuwingskootIn die Oscar saak is op par 53 gesê dat "it is inconceivable that a rational person could have believed he was entitled to fire at this person [die een agter die badkamer deur] with a heave caliber firearm [9 mm pistool], without taking even that most elementary precaution of firing a warning shot (which the accused said he elected not to fire as he thought the ricochet might harm him). Dit was 'n appèlhofsaak met 5 eenparige regters.
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Post by cjm on Jul 27, 2017 6:41:40 GMT
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Post by cjm on Aug 13, 2017 8:10:57 GMT
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Post by cjm on Aug 15, 2017 17:15:48 GMT
The following (although dated) also gives an overview of the requirements for self-defence [Afrikaans]. Broadly speaking, I would suggest that under current law, the right of self-defence will be narrower than indicated here.
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Post by cjm on Aug 26, 2017 8:48:12 GMT
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Post by cjm on Sept 6, 2017 6:10:43 GMT
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Post by cjm on Sept 13, 2017 16:26:16 GMT
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