‘Grossly Disproportionate’: Home Owners' Legal Licence to Kill
| Author | Sophie Miller |
| DOI | 10.1350/jcla.2013.77.4.854 |
| Published date | 01 August 2013 |
| Date | 01 August 2013 |
| Subject Matter | Comment |
COMMENT
‘Grossly Disproportionate’: Home Owners’
Legal Licence to Kill
Sophie Miller*
Keywords Crime and Courts Act 2013; Self-defence; Homeowners;
Householder cases
Oscar Pistorius’s plea of self-defence after shooting his girlfriend through
the bathroom door at his home in South Africa has dominated the world
news since its occurrence on 14 February 2013. According to Pistorius’s
own account he ‘had not planned to kill the 29-year-old model but had
“planned” to shoot a supposed intruder inside his Pretoria home’.1
While Pistorius is awaiting trial at the time of writing, it is worth
considering what the legal implications could have been if, rather than
his girlfriend, Pistorius had shot an intruder through that closed bath-
room door four times.
As William Booth (a practising criminal lawyer in Cape Town) stated,
South African courts have ‘tend[ed] to accept a broad definition of self-
defence’2in comparison with the UK courts in cases concerning defence
of property. Historically, case law in South Africa has certainly seemed to
permit killing purely in the protection of one’s property. In Re S vVan
Wyk,3Van Wyk, a shopkeeper who had experienced a number of burg-
laries, resorted to setting up a shotgun that would be triggered by
anyone entering the shop outside of opening hours and placed a notice
stating what he had done. A burglar did enter the shop and was shot in
the chest and killed. Van Wyk was charged with murder, but was
acquitted on the basis of private defence. The way in which killing in
defence of property was justified by the South African Appellate Divi-
sion in Van Wyk was that the person who attacks property infringes the
rights of its owners and in doing so should accept that there is an
accompanying risk to his own life.4The Lord Chief Justice stated that:
‘One who invades another’s rights, who defiantly ignores the prohibi-
tion, warning and resistance of the defender so that he can only be
prevented by the most extreme measures can within good reasons be
* E-mail: Sophie.Miller.1@city.ac.uk.
1 Aislinn Laing, ‘Oscar Pistorius: Reeva Steenkamp or intruder, athlete “shot to kill”’,
Telegraph, 21 February 2013, available at http://www.telegraph.co.uk/news/worldnews/
oscar-pistorius/9886785/Oscar-Pistorius-Reeva-Steenkamp-or-intruder-athlete-shot-to-
kill.html, accessed 10 June 2013.
2 William Booth, ‘Oscar Pistorius murder charge: South African self-defence law’,
Telegraph, 14 February 2013, available at http://www.telegraph.co.uk/news/worldnews/
africaandindianocean/southafrica/9871195/Oscar-Pistorius-murder-charge-South-African-
self-defence-law.html, accessed 10 June 2013.
3Ex p. Die Minister Van Justisie: In Re S vVan Wyk (1967) (1) SA 488 (A).
4 F. Leverick, Killing in Self-Defence (Oxford University Press: Oxford, 2008) 134.
299The Journal of Criminal Law (2013) 77 JCL 299–309
doi:10.1350/jcla.2013.77.4.854
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