Legal talk for patrollers

Lawyer Damian Enslin

Being a neighbourhood watch patroller is no easy job and patrolling with a gun can be even trickier, according to a legal expert.

Lawyer Damian Enslin spoke to neighbourhood watch members on the risks of patrolling with a firearm and the legal action they could face.

He was speaking at a Bellville Community Police Forum (BCPF) meeting on Thursday August 24.

While it may not be illegal to carry your firearm while patrolling, if allowed by your neighbourhood watch, Mr Enslin said a patroller could face serious consequences if they used it, as had been the case with some of his past clients.

He said the courts would look at the situation in two ways: objectively and subjectively, assessing the situation, the severity of the incident and whether the patroller was in imminent danger.

“The most difficult question I get asked is when you can use your firearm. It all really comes down to the situation and whether you stopped when the attack ceased,” he said.

Mr Enslin said the courts would look at what a reasonable person would have done in the situation. He said changes to the law meant a gun owner could only fire their weapon in defence if they or their family were in imminent danger.

“You can not shoot someone who is in your yard, if you are standing behind a locked security gate,” he said.

Another big problem, he said, was when crime victims pursed their attackers. He had represented a husband and wife who had been charged after they pursed an attacker and got into a fight with them. “When the attack ceases, you have to stop,” he said.

Mr Enslin, a neighbourhood watch member himself, said it was important for patrollers to remember that they were acting as the eyes and ears of the police and security companies, and a firearm was not their primary tool, so the law did not grant the same protection to them that it did to police officers

Mr Enslin said patrollers could make citizens’ arrests for schedule-one offences – such as house breaking, robbery and assault with intent to do grievous bodily harm – as per Section 42 of the Criminal Procedures Act, but he cautioned that they could still be held liable.

The same rules, he said, applied to paintball guns or imitation firearms – if it looked like a firearm and the suspect believed it to be one, neighbourhood watch members could also be charged.

Boston Neighbourhood Watch chairman Stephen Fourie said patrollers should also be careful when using pseudo weapons, such as Tasers and pepper spray.

“Many people often buy Tasers and pepper spray but they don’t know how to use it. You may end up antagonising the suspect,” he said.

Mr Fourie said members should educate themselves, adding that they needed more training on these issues.

BCPF chairman Hennie Koekemoer agreed, saying there was a great need for more information.

“We need to go through the various scenarios that could happen and see what options we have in terms of how we react,” he said.