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Gun 3 - The smoking gun

The smoking gun

By Mark van Dijk

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If you’re attacked in your home on a residential estate, who’s responsible for your protection? The answer – and the legal technicalities around private security and personal firearms – might surprise you.

Spare a thought for Mr and Mrs Smith*. One night in 2014, three robbers broke into their home in an upmarket Gauteng estate. Mr Smith was shot in the abdomen, and his family were threatened with pangas. Mrs Smith was hit over the head with a gun during the attack. It was every estate resident’s worst nightmare. After all, one of the big selling points of estates is the promise that you’re safer there than you’d be if you stayed in the suburbs.

The Smiths were angry, and they sued – bringing action against both the homeowners association and the estate’s security company, claiming that they were wrongful in their duty of care, and were negligent as they failed to take measures to ensure the safety of residents.

One of the rare benefits of living in a crime-troubled country is that you have a fair amount of legal precedent to draw on. The Smiths and their attorneys cited the infamous Loureiro case, in which a family sued their private security company after one of their guards opened their pedestrian gate, allowing a gang of robbers (dressed as cops) access to the property. The Loureiros were attacked, and millions of rands’ worth of goods were stolen. The Loureiros took the security company to the High Court, and won. The judgement was overturned in the Supreme Court of Appeal, but the Constitutional Court restored the original judgement.

According to the Constitutional Court ruling, ‘The contract between Mr Loureiro and the security company was breached when the guard at the gate gave the robbers access contrary to an express oral agreement not to allow anyone onto the premises without prior authorisation.
The security company is vicariously liable in delict because its employee acted wrongfully by opening a gate to robbers, and negligently by failing to foresee the reasonable possibility of harm, and to take the steps a reasonable person in his position would have taken to guard against it.’ So the Smiths would have been reasonably confident of a ruling in their favour.

When it came to the claim against the HOA, though, they were wrong. The judge ruled that, while the Smiths have a fundamental right to ‘security of the person, bodily, physical and psychological integrity, dignity and privacy’, and while those rights were unquestionably infringed when they were assaulted, it wasn’t up to the HOA to secure those rights. The judge reasoned that the HOA was ‘an extension of the collective will of the estate home owners’ – and while it would be nice if your neighbours came running to your rescue if robbers were to attack you in your home, they certainly don’t have a duty to do so. There was also no contractual obligation – no memorandum of agreement between the HOA and the home owners – which would hold the HOA liable for protecting residents in their homes.

What’s more, if your MOA states that you (or your visitors) are not allowed to bring a firearm onto the property, then – by signing that contract – you (and your visitors) would technically waive your (or their) legal right to carry a firearm.

Attorneys, law students and legal commentators had a field day with the ruling, arguing the merits of the case – and the ruling – in every direction. But throughout the debate, a big, gun-toting elephant sat in the room. After all, if you live in a residential estate, are you allowed – and should you be allowed – to have a firearm to protect yourself from intruders? After all, if your neighbours don’t have to protect you, and if it takes the Constitutional Court to tell your security company that they do have to protect you … then all you really have on your side is yourself and your trusty .357 Magnum, right?

Gun control is a vastly complex and polarising issue, here in South Africa as much as in the United States (where it gets a huge amount of air time). People who want to own firearms are seen as pistol-packing gun-nut Rambo wannabes, while people who don’t are seen as naïve hippy idiots who shouldn’t come crying when the baddies attack them in their lounge.

The law, thankfully, is far more level-headed about it all. Section 13 of the (surprisingly strict) Firearms Control Act 60 of 2000 provides for a firearm licence to be issued to a person who needs a firearm for self-defence, and who cannot reasonably satisfy that need by other means. But you can’t just go around packing heat; if you’re licensed to own a firearm for self-defence, you’re only allowed one shotgun or handgun, and you may only use your licensed firearm when it’s safe to do so for a lawful purpose (in this case, to defend yourself against an unlawful attack). Brazenly pointing your gun at some stranger who knocks at your door is illegal. Using excessive force is also illegal – so, strictly speaking, if your assailant breaks into your home and hits you, but then stops hitting you when you grab their hand, if you then continue hitting (or shooting) that person, then you become the attacker and you’re guilty of assault. It’s a very tricky part of the law.

So where does that leave you? And where does it leave people like the Smiths? Legally, you have recourse against the security company (and, of course, against the assailants) if you’re attacked in your home in a residential estate. But unless it’s specifically stated otherwise in your MOA with your HOA, you can’t hold the estate responsible for failing to keep you safe. And yes: you can own a firearm; but no: you can’t use it unless your life is demonstrably in danger.

The Smith and Loureiro cases provide useful precedent, and help to clear up the law around firearms, security and responsibility on residential estates … not that either family would draw much comfort from that.

*not their real name

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