It is alleged, and media reports support this, that on 9 October 2026 a father in Pinetown, Durban, was pulling out of his driveway with his children when armed men tried to hijack his vehicle. Dashcam footage of the incident has been widely shared. According to the police, one of the alleged hijackers opened fire and the father fired back, fatally wounding one of them. The police opened dockets for attempted murder, attempted carjacking and an inquest. None of these allegations has yet been tested in court.
We are not involved in that matter, and no court has yet made any finding on it. The incident has, however, led many people to ask what the law allows when a person uses a firearm to defend themselves or their family. This article looks at the firearm laws that apply, at what our courts have said about self-defence and, using the facts as reported, at the questions a court would ask in deciding whether the bounds of self-defence were exceeded.
Licensing a Firearm for Self-Defence
Firearms are regulated by the Firearms Control Act 60 of 2000. Section 13 allows a person to be licensed to possess a firearm for self-defence. The applicant must show that they need a firearm for self-defence and that this need cannot reasonably be met by other means. The applicant must also hold a competency certificate, which requires training and a background check.
A licence only allows a person to own and carry the firearm lawfully. It does not give the owner any extra right to use it. Whether a shooting was lawful is decided by the ordinary rules of criminal law, which apply to everyone.
What the Act Says About Using a Firearm
Section 120 of the Act creates several offences that are relevant here. In terms of section 120(6) it is an offence to point a firearm at another person "without good reason to do so". In terms of section 120(7) it is an offence to discharge a firearm "in a built-up area or any public place, without good reason to do so". Section 120(3) also makes it an offence to handle a firearm in a manner likely to endanger others, or "with reckless disregard for the safety or property of any person".
Acting in lawful self-defence will generally be a good reason. A person who goes beyond what the law allows, or who fires carelessly and endangers bystanders, may face charges under the Act, as well as charges of culpable homicide or murder.
When Is Self-Defence Lawful?
The law calls self-defence "private defence". If it is established, the conduct is not unlawful and the person has committed no crime. Our courts have developed clear requirements, which deal first with the attack and then with the defence.
The attack must be unlawful, and it must threaten a legally protected interest such as life, bodily integrity or, in some cases, property. It must also have begun or be about to begin.
In S v Steyn 2010 (1) SACR 411 (SCA) at para 16 the Supreme Court of Appeal confirmed that a person may use force against attacks "which have either commenced or are imminent". A person does not have to wait to be shot before acting. However, once the attack is over and the attacker is fleeing, the right to private defence falls away. Force used at that stage is likely to be seen as revenge, not defence.
The defence must be directed at the attacker, and it must be necessary to stop the attack. It must also be reasonable. In Steyn at para 19 the court explained that "there should be a reasonable balance between the attack and the defensive act", but that "modern legal systems do not insist upon strict proportionality between the attack and defence". The real question is "whether, taking all the factors into account, the defender acted reasonably".
The test is objective. In S v Joshua 2003 (1) SACR 1 (SCA) at para 29 the court, referring to S v De Oliveira 1993 (2) SACR 59 (A), stated that "[t]he test for private defence is objective". The court asks what a reasonable person in the defender's position would have done. At the same time, courts recognise that a person under attack has to make decisions in seconds. In Steyn at para 24 the court said that it should "adopt a robust approach, not seeking to measure with nice intellectual calipers".
There is no absolute duty to run away. In Steyn the court found that the appellant could not have been expected to flee from a man who was extremely close to her and about to attack her with a knife. Whether a safe escape was available is one factor the court will consider.
Defending property is treated with more caution. In Ex parte Die Minister van Justisie: In re S v Van Wyk 1967 (1) SA 488 (A) the Appellate Division accepted that killing in defence of property may be justified in extreme circumstances. In practice, courts look very closely at any case where a life was taken only to protect property.
How a Court Deals with the Facts
A person who relies on self-defence does not have to prove it. The State must prove beyond reasonable doubt that the accused did not act in lawful private defence. In Pillay v S [2023] ZASCA 113, a matter in which a metro police officer shot a suspect he said had fired at him first, the Supreme Court of Appeal confirmed at para 19 that "the onus nevertheless remains on the State to prove beyond reasonable doubt that the accused acted unlawfully". The accused "did not have a duty to convince the court of the truthfulness of his version". Because his version was "reasonably possibly true in its essential features", his conviction for murder was set aside.
The court does not look at one piece of evidence in isolation. In Pillay at para 15 the court said that the findings of fact "must be evaluated against the entire evidence that was led at the trial". In a shooting case this usually includes the evidence of eyewitnesses, video footage, the post-mortem report, the ballistic evidence and the positions of cartridges at the scene. In Pillay the positions of the cartridges supported the accused's account. The conduct of the accused after the shooting, such as calling the police and staying at the scene, is also considered.
The court then decides whether each requirement of private defence was met. In Ramthal v S [2024] ZASCA 124 at para 48, Mantame AJA, in a dissenting judgment in the Supreme Court of Appeal, referring to S v Engelbrecht 2005 (2) SACR 41 (W), repeated that the defensive act must be "necessary to protect the interest threatened", must be "directed against the attacker" and must not be "more harmful than necessary to ward off the attack". In that matter a security officer said he fired a warning shot, then a shot at the deceased's knee and then a fatal shot to the chest. The State argued that the bullet path showed the deceased was on the ground when he was shot. The majority of the court granted leave to appeal, which shows how closely these cases turn on detail.
In deciding whether the force used was reasonable, the court will consider, inter alia:
- the nature of the attack and whether the attackers were armed;
- the number of attackers and their position in relation to the accused;
- whether the attack had begun, was about to begin or had already ended;
- how much time the accused had to decide what to do;
- whether there was a safe way to avoid the danger;
- the number of shots fired, where they were aimed and where they struck;
- whether the attacker had turned away or was fleeing when shot;
- whether other people were put at risk; and
- the place where the incident happened, such as a home, a vehicle or a public road.
The court places itself in the position of the accused at the time, and does not judge the accused with the benefit of hindsight.
Exceeding the Bounds of Self-Defence
A person who starts out acting in lawful self-defence can go too far. If one of the requirements is not met, for example because the force used was more than was necessary or because the attack had already ended, the defender has exceeded the bounds of private defence and the conduct becomes unlawful.
The most common example is continuing to shoot once the danger has passed. In Bomvana v S [2024] ZAKZPHC 124, a recent KwaZulu-Natal matter, a police officer fired several shots after a road-rage confrontation and the deceased died from a gunshot wound to the upper back. The High Court in Pietermaritzburg found at para 15 that any threat "had in any event ceased when the deceased turned his back to the appellant", and that by continuing to shoot the appellant "exceeded the bounds or limits of justification". His conviction for murder was upheld.
Exceeding the bounds does not automatically mean a conviction for murder. The court must still decide what the accused intended. If the accused foresaw that the shots could kill and carried on regardless, that is intention in the form of dolus eventualis, and the conviction will be for murder. In Bomvana at para 78 the court found that the appellant "reconciled himself with the possibility that the gunshots he fired would kill someone".
If intention is not proved, the accused may still be guilty of culpable homicide if a reasonable person in the same position would have foreseen that death could result and would have acted differently. In Botha v S 2019 (1) SACR 127 (SCA) the Supreme Court of Appeal accepted that the accused had needed to defend herself, but found that her response went too far. Because intention had not been proved, it replaced the murder conviction with one of culpable homicide and imposed a sentence of three years' imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act 51 of 1977. In doing so it referred to S v Ngomane 1979 (3) SA 859 (A), where the accused "ought reasonably to have realized that he was acting too precipitately and using excessive force".
At the same time, the law does not ask a person under attack to put their attacker's safety first. In Rossouw v S 2018 (1) SACR 179 (NCK) at para 14 the court referred to the Constitutional Court's statement in S v Makwanyane that in such a situation "the life of the innocent is given preference over the life of the aggressor".
When the Threat Is Not Real
Sometimes a person honestly believes they are under attack when they are not. This is called putative private defence. Because there was no actual attack, the conduct is still unlawful. The question then becomes whether the person had the necessary intention. In Joshua at para 29 the court, again quoting De Oliveira, said that in such cases "it is not lawfulness that is in issue but culpability". If the belief was genuine, it may exclude intention, and the person may at most be convicted of culpable homicide if they acted negligently.
The Constitutional Court dealt with this in Tuta v The State [2022] ZACC 19; 2024 (1) SACR 242 (CC). At para 46 the court stated that "[a]n accused who kills another, believing his or her life to be in danger, when, objectively, it is not, acts unlawfully", but that "[c]ulpability on a charge of murder is judged according to what the accused believed". The majority found that the trial court had applied an objective test to the murder charge, which was an error. The convictions were set aside and the accused was acquitted. Whether the belief was reasonable is relevant to culpable homicide, not to murder.
That does not mean that any claimed belief will be accepted. The court tests the claim against the objective facts. In Director of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) the accused fired four shots through a closed toilet door, killing the person behind it. The Supreme Court of Appeal rejected his reliance on putative private defence. It found that, by firing into a small cubicle, he must have foreseen that whoever was behind the door could be killed, and that it made no difference who that person turned out to be. His conviction for culpable homicide was replaced with a conviction for murder.
Applying the Test to the Pinetown Incident
No court has considered the Pinetown incident, and the full evidence is not public. Using only the facts as alleged in media reports, a court would be likely to ask the questions set out below.
First, was there an unlawful attack that had begun or was about to begin? It has been reported that one of the men pointed a firearm at the head of the father's son and that another fired at the father. If that is proved, there was an unlawful attack on the lives of the father and his children that had already begun.
Second, was it necessary to fire back? A person who is being shot at, with children in or near the vehicle, will usually have only seconds to react and little or no safe way out. On the reported facts, returning fire to stop the attack would generally fall within the limits of private defence, as Steyn and the later cases discussed above show.
Third, did the force stay within the bounds of what was necessary? This is where the detail matters. The court would look at how many shots were fired, when each was fired, where the men were standing and where the wounds were. It would ask whether any shots were fired after the men had stopped attacking and turned to flee. Shots fired while the attack was continuing are treated very differently from shots fired at someone running away, as Bomvana shows.
Fourth, were other people put at risk? The incident happened in a residential street. The court would consider whether neighbours or passers-by were endangered, which is also relevant under section 120 of the Firearms Control Act.
The dashcam footage, the post-mortem reports, the ballistic evidence and the positions of the cartridges will be central to these questions. Media reports have also referred to more than one death, but at the time of writing the police had confirmed one. It will be for the National Prosecuting Authority, and if necessary a court, to decide the matter on the full evidence.
After a Shooting
Where a person is killed, the police will open an inquest docket. Where a person is injured or shots are fired, other dockets may also be opened. The firearm will usually be taken for ballistic testing. The National Prosecuting Authority then decides whether to prosecute. Anyone involved in a shooting has the right to legal advice and should obtain it before giving a statement to the police.
Proposed Changes to the Law
The government has for some time been considering a Firearms Control Amendment Bill. The draft Bill proposes removing self-defence as a ground for obtaining a firearm licence, and it has been the subject of renewed debate in the past year. It is not yet law. For now, section 13 of the Act continues to apply and existing licences remain valid.
Conclusion
The law allows a person to defend themselves and others, including with a firearm, but only within clear limits. The attack must be real and must be happening or about to happen, and the response must be necessary and reasonable. Each case depends on its own facts, and the courts will consider all of the circumstances, including how little time the defender had to decide what to do.
This article is for general information only and is not legal advice.
