Estate Living Magazine Connection - Issue 43 July 2019 | Page 51

C O M M U N I T Y
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.
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
Mark van Dijk
N
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.
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?
L I V I N G