14/02/2013 A police officer at Boschkop police station holds a gun that Oscar Pistorious allegedly used to shoot and kill his girlfriend, Reeva Steenkamp at his home in Silverwoods security estate in Pretoria East. Picture: Phill Magakoe

Durban - When can a person legally be allowed to open fire on an alleged burglar?

Former Durban criminal attorney and Acting High Court Judge Kessie Naidu SC, speaking in general terms and not specifically about the Oscar Pistorius case, said the circumstances and whether a person used reasonable steps to avert danger, would be the key in deciding whether he was acquitted of murder or charged with culpable homicide.

“If a person is in the sanctuary of your home, and someone enters and the householder feels endangered, the householder is entitled to defend himself,” he said.

Naidu said the householder would be entitled to “take reasonable steps to avert any harm to family members or themselves who might be harmed”.

He used the example of a child trespassing to retrieve a ball and being shot by a householder, and said those circumstances would not be of a reasonable nature, because there would be no potential harm to anyone.

“If it is found by a court of law that the householder took reasonable steps, depending on the circumstances of the case, he would be entitled to be acquitted (of murder),” he said.

Naidu used another example: “If a burglar wants to get in your property, and you can see him approaching, shooting him on the least fatal body part would be permitable because the circumstances are different,” he said.

“Until the facts appear in court, it is unfair to speculate (on the Pistorius case). We must wait until these facts are tested in court before we make judgments,” he said.

“It must be shown that a reasonable man in the position of the household owner would not have acted the same way. If it is accepted that there was an intruder, then you have to look at the potential danger. Has the householder acted in a manner that a reasonable man would not have? Then he may be convicted of culpable homicide.”

In 2004, former Springbok rugby player Rudi Visagie shot his daughter Marlé, who was 19 at the time.

He mistook her for a car thief. He was charged with culpable homicide after she died from her injuries. He was not prosecuted for the incident in court after the National Prosecuting Authority withdrew the charges saying that justice would not be served if he was prosecuted.


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