THE LEGAL IMPLICATIONS OF WIELDING A TOY GUN

The recent death of Mervyn Masher at the hands of the police has shocked the city. Lowvelder previously reported that Masher and his wife, Milly, stumbled upon an accident scene on the morning of

June 9, 2019. According to Masher’s family, he offered his assistance as a paramedic when he was shot in the head by a police official. Police alleged that he was shot because he had been wielding a toy gun. The Independent Police Investigative Directorate are investigating all versions and only time will tell whether anyone should be held legally or criminally responsible for Masher’s death.

The incident has sparked a debate on whether someone who wields a toy gun may be killed by the police. According to the Firearms Control and Criminal Procedure Acts, this may very well be a legal response. Lowvelder has researched the relevant legislation, which appears below. This feature should not be misconstrued as commentary on the merits of the Masher matter, which is still under investigation.

Section 120(6) of the Firearms Control Act 50 of 2000 states that it is a crime to point

any firearm, an antique firearm or an airgun, whether or not it is loaded or capable of being discharged, at any other person, without good reason to do so; or

anything which is likely to lead a person to believe that it is a firearm, an antique firearm or an airgun at any other person, without good reason to do so.

Professor CR Snyman explains in his textbook, Criminal Law, that “firearm, an antique firearm or an airgun” includes toy guns that look like the real thing.

Section 49(2)(a) of the Criminal Procedure Act determines that police may use deadly force directed at a suspect who poses a serious threat of violence towards either the police or citizens. When this is read with Section 120(6) of the Firearms Control Act, it follows that someone who wields a toy gun resembling a real gun may be considered such a threat. Police may then use deadly force against the wielder of the toy gun.