SOUTH AFRICAN HUMAN RIGHTS COMMISSION
SECTION 49 - CRIMINAL PROCEDURE ACT


1. Introduction
Section 49 of the Criminal Procedure Act deals with the use of force to effect arrest. It provides for the circumstances in which force may be used to effect an arrest, in response to force or flight, and further provides some guidelines as to when the use of deadly force may be used.

In addition to section 49, a person who has used force during an arrest may also rely on various common law defences:

• Private defence: the use of force against another person which is justified in defence of person, property or other legal interest.

• Necessity: an act performed in circumstances of necessity or compulsion may be justified even though it inflicts harm on another person, because it is done to avoid a grater harm

• Arrest: the common law exonerates an officer of the law if the fugitive’s offence is sufficiently proved and the state would suffer great harm if he or she escaped.

Accordingly, section 49 provides additional protection, over and above the common law, in that it provides impunity to persons killing others in circumstances which are far wider than the common law categories. It is for this reason that the current section 49 has been criticised, and questions have been raised as to whether it complies with the Constitution, particularly given the centrality of the right to life in the Bill of Rights.

The main components of the current section 49, and the proposed amendment, are compared below:

Section 49
(1)
• Person authorised to arrest / assist in arrest
• Attempt to arrest person, and person
(a) resists and cannot be arrested without force
(b) flees a clear attempt at arrest; or resists and flees
• May use such force as may be reasonably necessary to overcome resistance / prevent flight

(2)
• If arrest for Schedule I offence / reasonable suspicion thereof
• And cannot arrest / prevent flight except by killing
• Then killing will be justifiable homicide

Amended Section 49

• Person authorised to arrest / assistant
• Attempt to arrest person, and person
(a) resists
(b) flees a clear attempt at arrest; or resists and flees
• Person cannot be arrested without force
• May use such force as is reasonably necessary in the circumstances to overcome resistance / prevent flight
• The force must be proportional to the seriousness of the offence
• Deadly force will only be justifiable in respect of Schedule 7 offences
This paraphrasing shows the extent to which the section has been altered. The underlining in the amendment indicates the new concepts or constraints which have been introduced.

2. The current section
Section 49 becomes effective when a criminal charge is laid against the arrestor, who could be a police person or private person, for murder or assault, and the arrestor raises section 49 as a defence, alleging that he or she acted lawfully in terms of the section. As such it is clear that the section grants impunity for acts of assault and killing. It is the latter that is most problematic, as the section 49(2) links the impunity for killing to the type of offence, rather than to the circumstances of the killing.

The effect of linking impunity to the offence is starkly demonstrated by the example of "the apple thief", which was used by the Appellate Division: a child who has stolen an apple, and who flees, may be shot dead by an arrestor, because the offence falls into Schedule 1.1 It is for this reason that the courts have described the section as being "extremely, even dangerously wide"2, and have chosen to interpret the section restrictively.

As part of the restrictive interpretation, the courts have applied strict standards, before granting the protection of the section. These standards apply to the situation in which the force is used, and include the requirements that:

• An objective reasonable suspicion that a Schedule 1 offence has been committed, as opposed to a mere suspicion;3
• The victim must be aware that an attempt to arrest him or her is being made;
• The arrestor must intend to bring the victim to court, an not merely punish the victim;4
• There must be no other means to arrest the victim;5
• If possible, oral warnings must precede the use of force;
• When using a firearm, warning shots must be fired, where possible;
• Attempts must be made to stop the victim with non-lethal shots.6

These restrictions provide a useful framework and direction for the consideration of any amendments to the section.

3. The need for an amendment
The judicial restrictions on section 49 have developed over the years, and have been included in judgements, most of which pre-date the Constitution. Even without the guidance of the Constitutional principles, there was unease about the section, and the potentially wide power it granted to those effecting an arrest.

Although the judicial interpretations have effectively limited the section, they cannot address the essential problem: the defence of section 49(2) is absolute – it is not balanced against the circumstances and seriousness of the crime which prompts the arrest. Killing the "apple thief" can be justified however unreasonable the arrestor may have been in acting.

The Constitutional Court, in the judgement on the death penalty, made reference to the section, and the possible need to revisit its provisions:

"A 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."7

With the introduction of the interim and final Constitution, uncertainty arose regarding the validity of the section. The need to reframe the section has been acknowledged by both the Minister of Safety and Security, and the Minister or Justice, who both hold the view that the term of the present section is too wide.8. The South African Police Services, particularly, require certainty on the circumstances in which the use of lethal force to apprehend suspects is tolerated under the new Constitution. It is also a matter of public importance that the matter is clarified as a matter of urgency, as the section remains operational, and violations of rights may be taking place under a possibly unconstitutional provision.

4. Section 49 – a rights analysis
Section 49, in both its current and proposed wording, entails a violation of the following rights:

• The right to life (section 9)
• The right to dignity (section 10)
• The right to freedom and security of the person (section 11(1))
• The right of children to security (section 30 (1)(c))
• The right to just administrative action (section 24(d))

The enquiry then turns to whether the limitation of these rights is justified. This entails a weighing up of competing values, and assessment based on proportionality. The following must be considered:

• The nature of the right which is limited: its importance to an open and democratic society;
• The nature of the limitation: its purpose, its importance to an open and democratic society, its extent, efficacy and whether the ends can be achieved through less damaging means.

Nature of the rights:
There are several rights which are potentially violated by section 49. In so far as the section tolerates shooting to kill in certain circumstances, then the rights effected include the rights to life and dignity. These are the cornerstones of the Bill of Rights, and the most fundamental of rights, and the source of all other personal rights in Chapter 3. The erosion of these rights is a serious intrusion, and the comments hereunder relate predominantly to this question.

Nature of the limitation:
The limitation is substantial – it involves the assault and possible killing of someone who may be innocent. The more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be. What is held up as the purpose of the limitation? It may be the argument that police officers, and others, must be empowered to address the levels of crime and violence in the country, and the section is necessary to facilitate the effective apprehension of suspects. It may be the necessity of counteracting threats to the legal order, by arresting suspects. Further, it may be the harm and threat that the suspect might pose to society, should he or she not be apprehended.

It is clear that the purpose cannot be the need to protect the lives and persons of police officers, as when faced with such threats, they can rely on the common law defences, and the section is superfluous. The Constitution requires legislation to be passed to empower police personnel to do their jobs effectively, but such empowerment must not be at the cost of human rights.

Should the purpose be held up as the need to address crime in this country, then three issues must be considered.

• Firstly, will there be any connection between a provision which tolerated shooting to kill on arrest and the crime rate? It is submitted that a causal connection would be difficult to establish, and fundamental rights cannot be limited on the basis of perceptions and guesswork.

• Secondly, the police have been operating under special instructions relating to the use of force in effecting an arrest since the latter half of 1996, which constrain the use of force more extensively than section 49. Accordingly, there can be no question of their existing powers being eroded.

• It must be remembered that the suspect is just that: a suspect. There has been no process to establish guilt. The Constitutional Court has forbidden the death penalty following a conviction in a court of law. With this in mind, it is untenable that lethal force could be considered on a fleeing suspect. Where there is a reasonable belief of future danger, it could be argued that the common law defence of necessity should suffice.

The Commission submits that the purpose of the limitation is to prevent the possible harm to society, should a dangerous suspect escape. While crime control and the protection of the legal order are extremely important to society, it is also in the interests of society that suspects are afforded a judicial determination of guilt or innocence.

The purpose of section 49 must be served with the minimum interference of the rights in question, and as it stands, both in the current and proposed section, the infringement is wholly disproportional to the interests served by the section.

5. Comments
As stated in the previous section, the Commission believes that the amended section 49, as a whole, falls foul of the same disproportionate infringement of fundamental rights, as the current section. The Commission wishes to make the following comments and recommendations.

5.1 "… arrest without force…"
In the current section, the requirement that the person cannot be arrested without force qualified only the situation where the person resisted arrest, and not flight from arrest. The amendment makes this qualification apply to both the situations of resistance and flight, which the Commission believes to be appropriate.

The proviso "…cannot be arrested without force…" contains the requirement that all other means to arrest the person without using force exist must be considered, before the section is utilized. This has been termed the "subsidiary principle" in other jurisdictions, and is an important element in the framing of similar sections in foreign law.

The Commission welcomes and commends this amendment.

5.2 The first proviso
The amended section contains two provisos, the first of which requires that the force used must be proportional to the seriousness of the offence. This proviso causes the section to link the use of force to the nature of the offence, rather than to the circumstances. As such it reflects the logic of the existing section 49(2), and reinforces the connection between type of offence and level of force, rather than circumstances of resistance / flight and level of force.

The amendment introduces a recognition that the seriousness of a particular offence must be considered, and not merely the offence itself. This goes some of the way to addressing the problematic link between the type of offence and the force used, but it does not go far enough.

It is submitted that the wording which precedes the proviso – that the force be reasonably necessary in the circumstances – reflects the correct approach, allowing each incident to be assessed on its own facts. It is necessary to link the requirement of proportionality to this concept, both to de-link it from the nature of the offence, and to make it clear what the proportionality test comprises of for the purpose of the section.

In addition, the concept of proportionality should not be included in an insulated proviso, as the concept must span the entire section, and not relate to limited area of the text Reasonableness and proportionality are the underlying principles which should govern the use of force, and the section which incorporates these principles should allow the interpretation of what constitutes reasonableness and proportionality in any given circumstance up to the courts, on a case by case basis.

The relevant part of the section would then read as follows;

… the person so authorised may, provided it is proportional in the circumstances, in order to effect the arrest, use such force as may be reasonably necessary to overcome the resistance or to prevent the person from fleeing…

A draft reflecting this wording was circulated in the South African Police Services before the amendment was tabled. During a recent workshop on section 49, hosted by the Commission and the Human Rights Committee, the representative of the South African Police Services indicated that his department would be happy with such a draft.

The Commission requests that consideration be given to:

• The removal of the first proviso as it stands in the amendment;

• The incorporation of the concept of "proportionality" into the wording which links the force to the circumstances of the arrest, as a proviso.

5.3 Additional proviso
The "subsidiary principle" is included into the framework of the section, implying that force must only be used as a measure of last resort. The Commission submits that in addition to this prinicple, refernce to the further principle, or more appropriately, the requirement that minimum force be utilized in each situation. This is particularly relevant for a police service which is under threat from violent criminals on one hand, and under immense public pressure to effectively control crime on the other.

The principle of minimum force is already a legal requirement for police officers. Section 13(3)(b) of the South African Police Service Act 68 of 1995, reads as follows:

Where a member who performs an official duty is authorised by law to use force, he or she may use only the minimum force which is reasonable in the circumstances.

Section 13 refers to the use of any athorised force by a police officer, whether it is for search, seizure, or any other manifestation of force. Obviously, the section does not apply to private persons, who are authorised to effect arrests under the Criminal Procedure Act.

The concept of minimum force bears repetition in the context of section 49, and needs to apply to all those authorised to effect arrests in terms of the Act. In addition, attention must be given to making any draft of such a section consonant with that of section 13 of the South African Police Services Act, for the purposes of avoiding interpretation difficulties.

The Commission requests that consideration be given to:

• The introduction of the minimum force principle into the section dealing with use of force on arrest;

• This may by way of the addition of a further proviso, or by the addition of a further section, following on from section 49.

5.4 Schedule of offences
Under the previous section, the schedule of offences provided the only indication as to when lethal force could be used, linking offences to force, regardless of the circumstances of the arrest. In the amended section, the schedule creates an outer limit for the use of lethal force. The Commission welcomes this limitation.

However, there are some entries on the schedule which appear incongruous. The underlying rationale for the majority of the offences seems to be the element of violation of the person, save for those relating to housebreaking, theft of livestock and motor vehicles. These latter offences relate to violations of property. While the Commission recognizes that these categories of offences are problematic in South Africa, constitute a threat to the legal order and need to be addressed, their incorporation into such a section untenable.

One must return to first principles: the purpose of the limitation of rights entailed in this section. Should this purpose be to protect society form dangerous suspects, should they escape, as is submitted by the Commission, then attention must be given to the danger posed by a stock thief, or any suspect of an offence against property. The Commission agrees that these offences pose a threat to the legal order, but the same statement could be raised in connection with any offence, and the schedule must be consistent in its rationale.

The Commission requests that consideration be given to:

• The removal of the offences relating to housebreaking and theft of any kind.

6. Conclusion
The Human Rights Commission welcomes the revisiting of section 49 of the Criminal Procedure Act, which regulates the use of force during an arrest. Not only must the section operate in the South African context of the urgent need for increased crime control, but also in the context of the South African Constitution. The need to be hard on crime does not entail the erosion of the rights contained in the Constitution.

Distinctions must be drawn between a suspect who resists violently, and one who walks away. Force used during an arrest must relate to the circumstances encountered when effecting that arrest, and not only to the nature of the offence. Should an amendment be introduced to effect this test, the Commission believes that the section will comply with the requirement of reasonableness contained in section 36 of the Bill of Rights, which allows the limitation of rights.

In addition, the Commission believes that reference to the use of minimum force should be incorporated in to the section, and that references to non violent crimes should be removed from the provisions which tolerate lethal force.