SOUTH AFRICAN POLICE SERVICE
SUBMISSION ON THE JUDICIAL MATTERS AMENDMENT BILL 95 OF 1997: PROPOSED AMENDMENT TO SECTION 49 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977


THE PRESENT SECTION AND ITS APPLICATION

1 In The State v Makwanyane and Another, Constitutional Court Case No CCT/3/94, the President of the court, Justice Chaskalson, made the following observation:

"We are not concerned here with the validity of section 49(2) of the Criminal Procedure Act, and I specifically refrain from expressing any view thereon. 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 judgment 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."

(Judgment, p 98-99; Reported: 1995 (6) BCLR 665(CC) at 721E-H.)

2 The existing section 49 has two subsections dealing with the use of force in an arrest situation:

Subsection (1) presently deals with the use of force in general and subject its legality to the reasonability test of the common law. In terms of the present authoritative interpretation, this reasonability includes both a form of proportionality as well as the subsidiarity principles. The amount and method of force used must therefore be in proportional balance to the aim that is to be achieved, and must be the minimum force that would be reasonably effective and feasible in the circumstances (subsidiarity). It furthermore includes the weighing up of the nature and seriousness of the specific crime in question, as committed, against the amount and method of force used. See Matlou v Makhubedu 1978 1 SA 964(A) at 956E-G.

Subsection (2) presently deals specifically with the use of deadly force, incorporating (by necessary implication) all the principles contained in subsection (1), but by referring in an unqualified manner to a specific list of crimes (Schedule I), excluding the principle of proportionality (reasonability) as referred to above. The principle of subsidiarity (i.e. no lesser means available) is however specifically enunciated in the subsection.

3 The general interpretation of Subsection (2) allows for the use of deadly force without compliance with the strict requirement of reasonability in every instance. This fact has been specifically noted by our courts and criticised in legal writings. The position is further exacerbated in that some of the crimes listed in Schedule I are, in the context of using lethal force, over broadly defined, while others cannot generally be regarded to be of such a serious nature as to warrant using lethal force.

4 The Constitution and the Bill of Rights contained therein, necessitated a new evaluation of the South African use of force principles, especially in relation to the usage of lethal force.

4.1 Even though the possibility exists that the Constitution itself might have an adapting influence on the understanding and interpretation of section 49(2), police officials were, as an interim measure pending legislative amendment, immediately formally instructed by the National Commissioner not to use lethal force in terms of section 49(2) of the Criminal Procedure Act, 1977, unless the specific crime committed was of a serious nature. A more detailed instruction was issued at a later stage, following the cue of the proposed amendment to section 49. (See attached Annexure "A".)

4.2 The enunciation of section 13 of the new South African Police Service Act of
1995, further limited the use of all force (including lethal force) by police officials:

"13 (3)(a) A member who is obliged to perform an official duty, shall, with due regard to his or her powers, duties and functions, perform such duty in a manner that is reasonable in the circumstances.

(b) 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."

4.3 Section 13(3) of the South African Police Service Act, 1995, does not however relate to other peace officers or private citizens, and it is therefore necessary to at least align the powers of arrest relating to such persons with those of police officers.

5 Besides the effect of the Constitution on the understanding and interpretation of the present section, the following uncertainties exist at present:

5.1 Whether lethal force may justifiably be used in terms of section 49(1).

5.2 Whether the person using lethal force in effecting an arrest under section 49(2) may, (or must not) have the primary goal of killing the suspect. (See the conflicting remarks of the Appellate Division in S v Swanepoel 1985 1 SA 576(A) at 5881-589B; Macu V Du Toit 1982 4 SA 629(A) at 645F-G; Wiesner v Molomo 1983 3 SA 151(A) at 157H-158G; Matlou v Makubedu 1978 1 SA 946(A) at 957D.) (It is the viewpoint of the South African Police Service that the primary aim of section 49 is to effect the arrest of a suspect, and should have the arrest as primary goal, although the use of lethal force, where authorised and necessary, may have the incidental and unfortunate death of the suspect as end result.)

These uncertainties should be resolved satisfactorily.

6 The scope and application of section 49 of the Criminal Procedure Act, 1977, should at all times be distinguished from the scope and application of the common law ground of justification of self-defence. In the latter instance, it might of course be permissible for a defender to have the direct aim of killing an attacker, who threatens his or her, or another person's life.

THE PROPOSED AMENDMENT TO SECTION 49

7 After a thorough study (including consultations with various foreign legal and police experts) of the corresponding legal position in various democratic systems governed by a Bill of Rights, the amendments proposed in Annexure "B" were put forward to the Department of Justice to adjust the South African position in accordance with the core principles applied in those countries, in the light of the fundamental rights basis of our Constitution and legitimate state and citizen interests, but in a manner which caters for our unique legislative and common law heritage. The countries that were visited include the Netherlands, Belgium, Germany, Switzerland, France, the United Kingdom, Canada and the USA, and Kenya. The following other countries have also been included in the comparative legal analysis that was done: New Zealand, Australia, Swaziland, Namibia, Lesotho, Zimbabwe and Nigeria.

8 The Department of Justice suggested a slight modification to the original draft of the South African Police Service. This was accepted, and is presently the draft contained in the Bill. The only substantial difference relates to the phrasing of the suggested new proportionality test, and on reflection it now appears to the South African Police Service that the original wording in this respect is a better option.

All the existing principles relating to section 49(1) are included in the new proposed section 49 as the corresponding wording of section 49(1) remains intact. The addition of a specific proportionality test , as well as a proviso relating to the use of force that is likely to cause death, makes it quite clear that all the present requirements set by section 49(1) will be applicable, but now in all instances, and that the proportionality and subsidiarity principles will be applicable in all instances. The use of deadly force (where proportional and reasonable) is furthermore limited to a more restricted Schedule based on local considerations evaluated in the light of international usages and practices, affording the arrestor at least a minimum starting threshold to comply with, and to assist him or her in the consequent judgment of the circumstances. The proposal also conclusively deals with the primary aim and purpose required in all instances viz. "to effect the arrest".

(No attempt has been made to incorporate the South African common law defence of self-defence or defence of another person into the new proposed section or Schedule, as it would be contrary to the development of these principles by way of the common law, and most probably totally contra-productive, although some countries include a specified form of (extended) self-defence or defence of another in their provisions.)

THE SALIENT POLICY DECISIONS AT STAKE WITH RESPECT TO THE USE OF LETHAL FORCE

9 INCLUSION OF A PROPORTIONALITY PRINCIPLE


Justifiable delineation of fundamental rights involves the proportionality principle. This principle has an international jurisprudential content, and is usually phrased as the exercise of an administrative power being "proportional in the circumstances". It is not certain whether this principle would not in any event be superimposed upon (certain) legislation by the Constitution. It is however submitted that there exists a strong possibility of this not being the case, and an express formulation of the appropriate principle in section 49 is proposed.

10 INCLUSION OF A LIST OF CRIMES AND IDENTIFYING THE LEGAL INTEREST TO BE PROTECTED

One could argue that the need for a further limitation in the case of the use of lethal force, viz. a list of serious crimes, diminishes when the proportionality principle is paramount in all instances. There would on the other hand not be any guidelines for the exercise of such a discretion. It is informative to note that almost all legal systems having a form of proportionality/reasonability test, also prescribe a further limitation in the form of a list of crimes, though the formulation thereof might differ.

The vexed question remains of course which legal interest is primarily protected by section 49. The answer in our opinion is the interest of the community in the legal order, and only in those cases where there is a grave infringement of the legal order should lethal force be allowed as a last resort to enforce the legal order through the arrest of a suspected perpetrator. It is obvious that, where specific crimes actually pose a threat to people's lives, the necessary grave infringement is present. This principle is universally acknowledged. It is also apparent that most legal systems go further than that, and also include those crimes in the list, which due to various reasons, might pose a grave infringement to the legal order of the relevant legal system. One could of course describe the grave potential threat to the legal order also in terms of the high risk of harm to society. The list that is proposed as Schedule 7 contains in the opinion of the South African Police Service those crimes that can generally be regarded as conforming to this principle, taking the unique South African situation into consideration. One must always keep in mind that the overriding principle of proportionality must always be taken into account.