Human Rights Committee
Submission on Judicial Matters Amendment Bill [B95 -97]

Section 49 : Use of force when effecting an arrest
Background research , comments and recommendations

1. Introduction
The Human Rights Committee (HRC) welcomes the amendment to section 49. Section 49 has been in the past, and continues to be utilised as an instrument of oppression and is contrary to international human rights standards. Ensuring that law enforcement officials and others use force, particularly deadly force, only when absolutely necessary and as a measure of last resort, is crucial to saving lives, preventing injuries, installing a climate of non-violence and the creation of a human rights culture in South Africa.

Rights which may be violated by the use of force in the context of arrest include the rights to life, the right to human dignity, the right to freedom and security of the person and the rights of arrested persons.

International human rights instruments prescribe strict limits on the use of force in recognition of these right, for example in the United Nations' Code of Conduct for Law Enforcement Officials (adopted by resolution by the General Assembly of the UN in 1979).

The Human Rights Committee has considered the proposed amendment in light of the Constitution, relevant international human rights standards and comparative legislation and wishes to make several comments.

1.1 The purpose of an arrest
The purpose of providing persons with the power to effect an arrest is to bring the suspect before a court of law in order to enable the court to determine their guilt or innocence. The sanctioning of the use of non-deadly force is aimed at ensuring that this objective can be achieved.

However, the ratio behind allowing the use of deadly force is subject to some debate. Some would argue that it is necessary in order to prevent harm to individuals or society in general. Others would argue that it is necessary to protect the legal order. One leg of this argument is that without the power to use deadly force, there would be no respect for the legal order and the police would be severely hampered in their ability to combat crime. It is sometimes suggested that if suspects know the police cannot use deadly force, they will offer resistance and flee more often.

However, " [t]he use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion." [Tennessee v Garner (1985) US ]

1.2 The extent and scope of section 49
• An important factor which should be taken into account when looking at section 49, is that the person resisting arrest or attempting to flee, is most often merely a suspect, and not a convicted criminal. They may be innocent. In South Africa where there is a tendency to arrest first and investigate later, the possibility of the suspect being innocent cannot be ignored.

The suspect may be a child, who runs away out of natural fear.

• Furthermore, it is important to note that the section applies to police officers, private security officers and private persons. Thus although police training and standing orders place limits on a police officers' powers to use force, there is no such training or guidelines provided to private citizens, nor is there any monitoring of private citizens' use of force. This is problematic, particularly in the light of the recent increase in community policing forums, neighbourhood watch bodies and vigilante groups. Many foreign countries have separate provisions for the regulation of the use of force by private citizens when making an arrest. (The Criminal Procedure Act lays down different requirements for private citizens before they are authorised to make an arrest).

The training and guidelines available to private security officers are limited.

The security industry employs about 400 000 people while the SAPS has approximately 140 000 members. Although the security industry is regulated by the Security Officers Act and the Security Officer's Board, the extent of such regulation is severely limited. Furthermore, there are many security firms which are not registered with the Board.

While firearms are issue to individual police officers in their own name only upon the completion of their three years of training, security firms acquire "block" licenses and then issue guns to their employees. The only requirement laid down by the Security Officer's Board is that a security officer may be issued with a gun upon the completion of a minimum of 5 hours firearm training.

If a security officer uses deadly force to effect an arrest, there is no requirement, as there is with a police shooting, that the incident be reported for investigation to an independent body such as the Independent Complaints Directorate.

• It is important not to confuse section 49 with the common law ground of justification of private or "self" defence.

If a suspect attacks a police officer or attacks or threatens to attack another person in the police officer's presence, and the police officer shoots the suspect in order to protect himself or the other person, he could avail himself/herself of the common law "private -defence". The same defence is available to a security officer or a private citizen.

Section 49 goes beyond self-defence in that it authorises the use of deadly force for the sole purpose of effecting an arrest.

1.3 The need to empower and equip the police to combat crime
The police are struggling to contain crime; to arrest suspects, and to investigate thoroughly. Various studies have been conducted which indicate that there are large gaps between the number of people arrested by the police, the number of prosecutions undertaken and the number of convictions made pursuant to such arrests.

The police are hampered in their fight against crime by the following factors:

• low morale in police ranks
• lack of resources and inefficient allocation of available resources
• inadequate training
• understaffing
• corruption within the police force
• backlogs in the courts
• poor investigation skills (due to the past tendency of relying on forced confession)
• an increase in violent crime

The police need to be empowered to combat crime by ensuring good management, putting an end to corruption, ensuring the police receive adequate training, boosting the numbers and the morale and generally by professionalising the police service.

Furthermore, public confidence in the SAPS needs to be boosted. The under-reporting of crime in SA is largely due to a lack of faith in the justice system, of which the SAPS is an integral part. The professionalising of the police force is therefore of considerable importance.

2. A brief history of the bill
We have attempted to provide a history of the bill's progress in order to provide an insight into what lies behind the various drafts. Of particular interest is the draft written by the task team, appointed by the Minister of Safety and Security, on completion of their research into the legislation in other countries (annexure A). This draft requires that the force used must be proportional in the circumstances, while the tabled bill limits the proportionality test to the seriousness of the offence.

6/6/95: The Constitutional Court is S v Makwanyane in par 140 made the following comments regarding section 49(2):

" Greater restriction on the use of lethal force may be one of the consequences of the establishment of a constitutional state which respects every person's right to life. Shooting at a fleeing criminal in the heat of the moment, is not necessarily to be equated with the execution of a captured criminal. But if one of the consequences of this judgement might be to render the provisions of section 49(2) unconstitutional, the legislature will have to modify the provisions of the section in order to bring it into line with the Constitution."

The Court stated further that despite the sanctity of life being enshrined in the Constitution, legal systems recognise world-wide that occasions will arise where a choice has to be made between the lives of two or more persons. An example given by the court was "self-defence". The common law permits the use of deadly force by a person whose life, bodily integrity or property are threatened, provided the use of deadly force meets the requirements of the proportionality test.

11/4/95: Police instructions regarding section 49 issued from the Office of the National Commissioner of Police. Police officers were instructed to rely on section 49(2) only in respect of serious offences (such as murder, armed robbery, assault with intent to inflict grievous bodily harm) or where there is a reasonable suspicion that the fugitive is a danger to the public.

4/9/95: Ms Raloso, the mother of a 10 year old boy, who had been fatally shot by a police officer while effecting an arrest, launched an application in the High Court for the question of the constitutional validity of section 49(2) to be referred to the Constitutional Court.

4/12/95: The Minister of Safety and Security told the court that he intended to have a draft amendment bill regarding section 49 (2) "ready by the end of March 1996".

11/12/95: The Minister of Justice accepted the unconstitutionality of section 49(2) and stated the following to the court:

" My intention is to promote legislation for a total and comprehensive revision of the [Criminal Procedure Act, 1977] and to deal in one piece of legislation with all the provisions [including section 49(2) )] requiring such revision. Where, however, specific provisions are challenged in court, it may be necessary to deal immediately with such provision in accordance with the directions of a competent Court. In the present instance I am prepared to follow such a course."

18/01/96: The Minister of Safety and Security appointed a team of legal experts to conduct research on how the problem is addressed in other democracies. The team, consisted of; Advocate Joubert, Dr Geldenhuys, Dr Olivier, Mr Seale, Ms Clerke and Advocate Kok.

2/7/96: The research team drafted a proposed amendment to section 49 and reported to Commisioner Fivaz. The draft required that the force used must be proportional in the circumstances (annexure A)

2/7/96: The Minister of Safety and Security told the court that the "legislative process is now taking its course and is being managed by the Department of Justice." The respondent's attorney stated further that "the draft section 49 has been presented to the Department of Justice for its consideration. The draft section will shortly be submitted to the legislative process. The matter is being dealt with as a matter of urgency."

11/7/96: The draft Judicial Matters Amd Bill, 1996 was circulated by the Justice Department for comment. (annexure B)

14/8/96: Police instructions, issued by Dr T Geldenhuys in the office of the National Commissioner of Police, narrowed the list of crimes for which deadly force may be used. The following crimes, which are in the current schedule to section 49(2), were excluded: culpable homicide, indecent assault, sodomy, bestiality, theft of articles other than livestock or cars, malicious injury to property, receiving stolen property, fraud, forgery and offences relating to coinage. The instructions also forbids the use of deadly force to effect arrests where this would be disproportional to the seriousness of the offence and stress that the mere fact that an offence is listed in the schedule in the instructions does not itself justify the use of lethal force to arrest a fleeing suspect.

10/9/96: The police instructions were amended to include the following under the list of crimes for which deadly force may be used:

"Any conspiracy, incitement or attempt to commit any offence referred to in this schedule, or complicity in the commission of any such offence."

19/9/96: Cabinet approved the proposed amendments to section 49(2).

Approximately 9/5/97: The state law advisor responsible for certifying the draft bill, Advocate Oosthuizen, indicated that he could not certify the amendment as in his considered opinion, it did not comply with the Constitution. He proposed an amendment. (attached as annexure C).

Date unknown: The Department of Justice informed the SAPS of the state law advisor's findings and his proposed amendment, and asked the SAPS to liase directly with Advocate Oosthuizen.

12/5/97: Commissioner Fivaz wrote a letter to the state law advisor thanking him for his thorough research, but stating that the SAPS stands by its proposed amendment and will take full responsibility if it should turn out to be unconstitutional.

15/5/97: The Magistrate conducting the inquest into the death of the 10 year old boy in the Raloso case, found that the police officer concerned had acted within the scope of section 49(2).

15/5/97: The state law advisor wrote a letter to Mr Labuschagne (Legislation Department: Justice) re-iterating his concerns and stating that he was legally unable to certify the bill. He was particularly against incorporating a list of fixed crimes for which deadly force may be used and he was concerned about the omission of the principal of minimum force. He stated that although this provision was in the SAPS Act, it does not apply to private citizens or private security officers.

7/6/97: The state law advisor wrote a letter to the Minister of Justice informing him about the points of contention regarding the draft bill and attaching draft section to be added to his first re-draft. The addition was aimed at addressing the concerns of the SAPS.(annexure D)

6/10/97: The Judicial Matter Amendment bill was introduced into Parliament

9/10/97: The Justice Portfolio Committee was briefed on the bill.

5/12/97: Judgement was handed down in Raloso v The Minister of Safety and Security.(Northern Cape High Court)

Judge Buys dismissed the application for referral, having come to the finding that to refer the matter now, while the section is in the process of being amended, would not be in the interests of justice. It is important to note that the Judge did not make a finding on the constitutional validity of section 49(2). However, he did state the following:

" Section 49 (2) purports to authorise the taking of human life in certain circumstances. If there are doubts as to the constitutionality of the section, the interests of justice require that the matter be resolved by the constitutional court. All that is required of me is that I be satisfied that there is a reasonable prospect that the Constitutional Court will hold that section 49(2) may be unconstitutional. ...I have no doubt that there is such a reasonable possibility."

End of January 1998: Attorneys acting for Ms Raloso filed an application for leave to appeal with the Constitutional Court.

3. Section 49 (present section)

49. Use of force in effecting arrest - (1) If any person authorised under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person -

(a) resists the attempt and cannot be arrested without the use of force; or
(b) flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees,

the person so authorised may in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing.

(2) Where a person is to be arrested for an offence referred to in schedule 1 or is to be arrested on the ground that he is reasonably suspected of having committed such an offence, and the person authorised under this Act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide.

Schedule 1 (annexure E)

3.1 Requirements laid down by the courts
The predecessor to section 49 (2) was described by the Appellate Division as "extremely, even dangerously wide." [Schreiner JA in R v Labuschagne 1960 (1) SA 632 (A) at 639].

The Appellate Division has on several other occasions emphasised the dangers created by section 49 (2) and its predecessors. The Appellate Division and the Supreme Court have accordingly interpreted the section restrictively and have laid down strict requirements to be complied with before an accused can claim its protection.

These include the following:

· The arresting person must be authorised to arrest the arrestee

• There must be an objectively reasonable suspicion that a schedule 1 offence has been committed and not merely a suspicion that this is the case. [Wiesner v Moloto 1983 (3) SA 151 (A ) ]

· The arrestee must be aware that there is an attempt being made to arrest him or her [S v Barnard 1986 (3) SA 1 (A) ].

· The person relying on section 49 (2) must intend to bring the victim to court
[Macu v Du Toit 1983 (4) SA 629 (A) at 647]

· The force which the arresting person uses must be reasonably necessary in the circumstances to overcome the resistance or to prevent flight.

• There must be no other way to effect the arrest . The victim's flight or resistance to arrest does not justify homicide if there are other means which might have been used to effect the arrest [R v Labuschagne 1960 (1) SA 632 (A)].

Whether this requirement has been complied with, depends upon the facts of each individual case. Other means include oral warnings, warning shots in the air or into the ground, or attempts to stop the suspect with non-lethal shots [Matlou v Makhubedu 1978 (1) SA 946 (A)].

• The courts have also interpreted this requirement to the effect that the arresting person should consider whether the suspect can be arrested at a later stage. "[T]here must be no other means whatever to recapture the arrested person" [R v Hartzer 1933 AD 306]

In Mazeka v Minister of Justice 1956 (1) SA 312 (A), Van den Heever JA made the following statement:

" Where a fit young man of 24 intends to arrest a person much more than ten years his senior, who has only a few yards start and is admittedly not running very fast, where such young man promptly avails himself of the ultima ratio legis without essaying any other means of effecting an arrest - especially where he has information which points to the likelihood of the arrestee being identified, located and arrested - I do not think it is enough for him to say that he thought there were no other means of preventing the escape."

According to De Villiers JP in Metelerskamp 1959 (4) SA102 (E); "Escaping does not mean escaping or getting away for one yard or two yards or just out of a man's clutches. You must bear in mind and consider what the prospects are of the fugitive escaping from justice or of being brought to justice"

In Jooste (NO) v Minister of Police and Another 1975 (1) SA 349 (E) at 353B, the court said : " The fact that the arrestor possesses the knowledge which would render it probable that the person who flees might be identified, traced and arrested, will be a strong indication that the use of force would be unreasonable".

In a recent Lesotho case, R v Gabriel Puseletso Nchela CRI/T/5/93(not reported) Justice WCM Maqutu stated;

" In the case before me, there was no grounds for the accused to believe that the deceased could never be apprehended if he had outrun the accused.....The accused says it did not occur to him that he could easily come for [the] deceased on another day and easily find him in his village. The consideration becomes all the more relevant where the crime committed is a relatively minor assault."

3.2 The limits of restrictive interpretation
Restrictive interpretation of section 49 (2) is not able to circumvent all the dangers created by the section. The following problems remain:

· The defence created by section 49(2) is not balanced against the seriousness of the crime which the suspect allegedly committed:

• The section does not require the force used to be proportional to the seriousness of the alleged offence.

• The list of crimes in schedule 1 includes petty offences.

• The schedule does not distinguish between the various degrees of seriousness, for instance in the case of fraud and robbery.

· The section empowers the arresting person to kill the suspect solely for the purposes of effecting an arrest. It is not restricted to cases where there is an imminent or future risk to life, person or property.

In short, the section does not incorporate a proportionality test.

3.3 HRC's comment
Section 49 (2) empowers people to kill in circumstances where there is no imminent or future risk to life, person or property and where the alleged offence is trivial of nature.

According to statistics supplied by the Independent Complaints Directorate, during the period April 1997 to December 1997, 203 people were shot dead by police officers effecting arrests. These statistics were collected over a period of nine months. A breakdown of the three provinces with the highest number of deaths indicates that there were 71 deaths in Gauteng, 63 in Kwazulu-Natal and 17 in the Western Cape.

4. A comparative look

4.1 International Law
Section 39 of the constitution provides: "[w]hen interpreting the Bill of Rights, a court, tribunal or forum - must consider international law".

• The United Nations' Code of Conduct for Law Enforcement Officials
The code provides for the following regarding the use of force:

" Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty"

Commentary by authors concerning this article may be summarised under the following three points:
* The use of force should be the exception rather than the rule.
* The principle of proportionality should be used to determine whether or not the force was justifiable.
* Fire-arms should be used only in exceptional circumstances, and never against children.

• UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
Adopted by the Eighth Crime Congress, Havana, 27 August - 7 September 1990)
(annexure F)

We would like to draw your attention to the following provisions:

General provisions
· Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition allowing for differentiated use of force and firearms, to include non-lethal incapacitating weapons, with a view to increasingly restraining applications of means causing death or injury.

· Whenever lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a) Exercise restraint and act in proportion to the seriousness of the offence
and the legitimate objective;
(b) Minimise damage and injury, and respect and preserve human life;...

· Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

· Exceptional circumstances, such as internal political instability or any other public emergency, may not be invoked to justify any departure from these basic principles.

Special provisions
· Law enforcement officials shall not use firearms against persons except:

* in self-defence or defence of others against the imminent threat of death or serious injury,
* to prevent the perpetration of a particularly serious crime involving grave threat to life,
* to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape,
* and only when less extreme means are insufficient to achieve these objectives.

Qualifications, training and counselling
· Questions of police ethics and human rights shall be given special attention in the training of law enforcement officials, including the peaceful settlement of conflicts, the understanding of crowd behaviour, and methods of persuasion, negotiation and mediation.

· Stress counselling should be made available to law enforcement officials who are involved in situations where force and firearms are used.

• Convention Against Torture
Status: South Africa signed the Convention in 1993 and the Justice Department has placed it on its programme for ratification this year.

Training of police to understand their obligations in respect to the human rights of individuals in their custody and how to respect those rights during arrest is obligated by the Convention Against Torture. Failing to provide such training is a violation of the Convention.

A human rights training program is being developed for integration into the formal training of police, however, human rights training is not being undertaken in a uniform manner at present.

4.2 Foreign law
Section 39 of the Constitution provides: "When interpreting the Bill of rights, a court, tribunal or forum - may consider foreign law."

We have mentioned a few examples of foreign legislation. More comprehensive research can be obtained from, the Raloso court file or the SAPS research team appointed by the Minister of Safety and Security.

• Canada
Canadian Criminal Code

We would like to draw your attention to section 25(4)( c) to (e)

Section 25 (4): A peace officer, ..., is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

( c) the person to be arrested takes flight to avoid arrest;
(d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and
(e) the flight cannot be prevented by reasonable means in a less violent manner.

The history behind section 25(4):

Section 25 was amended in 1993 by the addition of the requirement that there must be a belief on reasonable grounds that such force is necessary to protect someone from imminent or future death or grievous bodily harm.

This amendment was necessitated by the1993 Ontario Court of Justice decision in R v Douglas Lines where the court held that the previous section 25 (4) was unconstitutional in that it unreasonably transgressed the principles in section 7 of the Charter of Rights and Freedoms and could not be justified under section 1 of the Charter.

Section 7 of the charter reads as follows: " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice."

The phrase "imminent or future death or grievous bodily harm" has not yet been interpreted by the courts.

• USA
In terms of the common-law, police could use deadly force to stop an escaping felon, as a last resort. The common law felonies included murder, rape, manslaughter, robbery, sodomy, mayhem, burglary, arson, escape from prison and larceny.

The Model Penal code suggests a prohibition of the use of deadly force, unless the force used creates no substantial risk of injury to innocent persons and the officer believes that:

(a) the crime involves the use or threatened use of deadly force; or
(b) there is a substantial risk that the offender will cause serious bodily harm if apprehension is delayed.

Tennessee v Garner (1985) 471 US (annexure G)

Here the court stated that "[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead."

The states:

Four states retain the common law rule (Michigan, Ohio, Virginia and West Virginia).

Nineteen states have codified the common law rule (Alaska, California, Arkansas, Connecticut, Florida, Idaho, Indiana, Kansas, Mississippi, Nevada, New Mexico, Oklahoma, Tennessee, Washington, Oregon, Wisconsin) although in two of these, the courts have significantly limited the statute (California, Indiana). In California the police may use deadly force to arrest only if the crime of which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm" or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force. It is not permitted simply to prevent escape.

Two states have adopted the Model Penal Code verbatim (Hawaii, Nebraska)

Eighteen states allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested ( Alaska, Delaware, Maine, New Haven, North Dakota, Arizona, Colorado, Iowa, Minnesota, New Jersey, New York, North Carolina, Texas, Utah). Of particular interest is Detroit which restricts the use of deadly force to felonies involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be re-captured.

Two forbid the use of deadly force to prevent any but violent felonies (Louisiana and Vermont)

Texas Penal Code
(annexure H)

We would like to draw your attention to 9.51 ( c)

" A peace officer is justified in using deadly force against another when and to the degree the peace officer reasonably believes the deadly force is immediately necessary to make an arrest, or to prevent escape after arrest, if the use of force would have been justified under Subsection (a) and:

1. the actor reasonably believes the conduct for which arrest is authorised included the use or attempted use of deadly force; or
2. the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed."

• Kenya
Penal Code, section 18

" Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which has been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person."

• Switzerland
Police Act of the Canto De Vaud
(translation)

Section 24 - PHYSICAL COERCION

" It is prohibited for a police official to subject anybody to an insult or bad treatment. The police can, to accomplish their duty, use force, to an extent proportional to the circumstances, when no other means of action exists."

Section 25 - RECOURSE TO ARMS

The recourse to arms is the ultimate means of coercion at the disposal of the police. It is only authorised in a situation where it is necessary and must be proportional to the circumstances. Life threatening wounds must be avoided in every possible way.


• United Kingdom
Section 49 has no equivalent in English common or statute law.

In England, the issue would be determined by applying the principle that reasonable force can be used to effect an arrest, the degree of force justifiable being determined by the circumstances and in particular the danger to human life and property if the accused were allowed to escape.

4.3 South African legislation
• Correctional Services Amd Act 1997

This Act inserted provision 20G into the Correctional Services Act.
(for the full provision, see annexure I)

We would like to draw your attention to subsection 1 (b) and ( c)

(b) " In performing the custodial duties referred to in paragraph (a), every custody official shall also have the power, subject to the limitations and restrictions contained in this Act and those contained in any other law, to use force to perform those duties.
(c) " In the event of a custody official using force, only the minimum degree of force may be used and such force must be proportionate to the objective sought to be achieved"

Correctional Services draft bill (11th draft) (annexure J)

Section 102. Use of Force

(2) The use of force is authorised to achieve the objectives specified in subsection (1): Provided that no other means are available and that the minimum degree of force is used and is proportionate for the objective to be attained.

5. An earlier draft amendment proposed by the SAPS research team

2/7/96- SAPS draft
(annexure A)

49. Use of force in effecting arrest -
If any person authorised under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person -

(a) resists the attempt; or
(b) flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees, and cannot be arrested without the use of force, the person so authorised may, provided it is proportional in the circumstances, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person from fleeing:

Provided that the use of force which is likely to cause death will be justified in terms of this section, only where the person concerned is to be arrested for an offence referred to in schedule 6.

5.1 HRC's comment
This draft was the result of extensive comparative research done by the SAPS task team appointed by the Minister of Safety and Security.

We support the inclusion of a proportionality test which is not limited to the seriousness of the offence.

We do not support the approach of using a schedule to identify the crimes for which deadly force may be used.

6. The amendment in the tabled bill
49. If any person authorised under this Act to arrest or assist in arresting another, attempts to arrest such person and such person -

(a) resists the attempt; or
(b) flees when it is clear that an attempt to arrest him or her is being made, or resists such attempt and flees,

and cannot be arrested without the use of force, the person so authorised may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing:

Provided that the force so used must be proportional to the seriousness of the offence which the person to be arrested has committed or is reasonably suspected of having committed:

Provided further that the use of force which is likely to cause death will be justified in terms of the provisions of this section, only where the person concerned is to be arrested for an offence referred to in schedule 7.

Schedule 7
(annexure K)

6.1 HRC's comments and recommendations

The section
• The words "the person ...may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing" on first glance, sanction the use of deadly force solely for the purposes of effecting the arrest immediately.

Two South African cases (mentioned above) have held that the arresting officer should take into account whether it would be possible for him/her to arrest the suspect at a later stage. For example, if the suspect is a person whose identity and address are known to the arresting person.

We would like to see this requirement in the bill. This can be achieved by specifically spelling it out or by making the reasonably necessary test broader.

The express approach could be similar to the approach adopted in some American states to the effect that the suspect is likely to endanger life unless apprehended without delay.

The broad approach would encompass the following wording:

"in order to prevent the arrestee from escaping from justice, the arresting person may use such force as may be reasonably necessary in the circumstances"

Such an approach would allow the courts to set guidelines on what is "reasonably necessary in the circumstances" and to determine each case on the basis of its individual circumstances.

• The proportionality test proposed in the section is limited to a weighing up
between the seriousness of the offence and the degree of force used.

Restricting the proportionality test to the seriousness of the offence is problematic for the following reasons:

The proportionality concept encompasses more than the weighing up of the seriousness of the offence and the degree of force used; it involves the weighing up of the right infringed by the section and the purpose served by the section.

In S v Makwanyana, the Constitutional Court stated that the right to life is not absolute and it may be limited if the limitation passes the test set out in the limitations clause.

The Court found that the death penalty does not pass the limitations test and indicated that the defence of "self-defence" in all probability will pass the test.

The essential difference between self-defence and justifiable homicide in terms of section 49 (2) lies in the absence of a proportionality test in section 49(2). In applying the common law requirement of proportionality in self-defence, the courts have not limited such test to seriousness of the alleged attack. Although the seriousness of the attack is often a decisive factor, it is not the only one which the courts take into account.

The test which the Constitutional Court will apply when determining whether section 49 is a justified limitation of an individual's right to life, dignity and freedom and security of the person is set out in section 36 of the Constitution.

"The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -

(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose."

We would suggest that the proportionality principle not be limited in any way and would thus recommend wording such as "proportional in the circumstances" or "the force used must be proportionate to the objective sought to be achieved".

The schedule
HRC strongly suggests that the bill should depart from the approach of using a schedule to identify the crimes for which deadly force may be used. Instead, the law should be drafted to permit use of such force where there is an imminent threat to the life or a serious and imminent threat to the bodily integrity of the arresting person or another person, or where the offence for which the arrest is being made involves the loss of life or serious injury.

If the committee resolves to follow the schedule approach, we would like to make the following comments:

• The schedule does not distinguish between violent and non-violent crime.

An argument often advanced to justify the use of deadly force is the need of the police to succeed in their fight against violent criminals.

However, If one looks at the list of crimes for which deadly force may be used, the emphasis is not on violent crime, but on national priority crimes.

The following crimes do not necessarily involve violence:
· treason
· sedition
· theft of livestock
· theft of a motor vehicle
· kidnapping
· child stealing
· housebreaking with intent to commit an offence
· any offence under any law relating to intimidation
· any offence under any law relating to control over drugs and in respect of which punishment of imprisonment for a period of five years (or longer) may be imposed
· escaping from lawful custody, where the person concerned is in custody in respect of any offence referred to in this schedule.
· escaping from lawful custody, where the person concerned is in such custody in respect of the offence of escaping from lawful custody.

• The schedule does not distinguish between cases where there exists an actual or reasonably perceived imminent danger to the arresting person or others, and those cases where such danger does not exist.

• Specific problems with the crimes listed in the schedule:

Robbery
A 13 year old street child who snatches a necklace or a handbag from a person walking in the street can be classified as a robber.

Theft of livestock, excluding poultry
Allowing the use of deadly force in the case of livestock theft is likely to exasperate an already explosive situation. The schedule should limit it to theft of livestock where such theft involves violence.

7. HRC's suggested wording
If any person authorised under this Act to arrest or assist in arresting another, attempts to arrest such person and such person -

(a) resists the attempt; or
(b) flees;

when it is clear that an attempt to arrest him or her is being made, and cannot be arrested without the use of force, the person so authorised may, in order to prevent the person concerned from escaping from justice, use such force as may be reasonably necessary and proportional in the circumstances

Provided that the use of force which is likely to cause death may only be used where the arresting person reasonably believes that ;

a) the person concerned is to be arrested for an offence involving the use or threatened use of life threatening violence or serious bodily injury, or
b) there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the arresting person or another if the arrest is delayed.