PRESENTATION TO THE PORTFOLIO COMMITTEE

SECTION 49 OF THE CRIMINAL PROCEDURE ACT, 1977 (ACT NO. 51 OF 1977)

Only two years after the adoption of the interim Constitution in 1993, the South African Police Service was named as one of the respondents in a class action claim to have the provisions of section 49(2) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (hereinafter referred to as the Criminal Procedure Act) declared unconstitutional.

At the time, very little guidance was available on how to interpret the Bill of Rights in the Constitution. Extensive international comparative law research was undertaken. However, the legal provisions applicable in other countries could not be made directly applicable to the South African situation and could not serve as conclusive proof of how the Constitutional Court would approach this highly sensitive issue of the use of deadly force in an attempt to effect an arrest.

The international comparative law research indicated that there was a likelihood that the South African Constitutional Court would regard the provisions of section 49 of the Criminal Procedure Act as being unconstitutional. However, it was impossible to determine what degree of force the Constitutional Court would regard as permissible and under what circumstances.

With the information at our disposal the South African Police Service requested the Department of Justice to refer the matter to Parliament in order to obtain clear guidance on this matter. Parliament decided .to draft an amendment that in its opinion would withstand constitutional scrutiny. The amendment is contained in the Judicial Matters Second Amendment Act, 1998. During 2001 the case of S v Govender was decided by the Supreme Court of Appeal. In this case, the Court laid down quite clear guidelines on the circumstances in which the use of deadly force, in order to effect an arrest, would be regarded as permissible in the light of our Constitution. This case was followed in 2002 by the judgement of the Constitutional Court in the case of S v Walters. In this judgement the Constitutional Court confirmed the decision of the Supreme Court of Appeal in S v Govender and declared section 49(2) unconstitutional.

With the benefit of the guidance received from the Constitutional Court in its unanimous judgement in the case of S v Walters, it is now quite clear in what circumstances the use of deadly force could be justified in an attempt to effect an arrest. If one compares the guidelines laid down by the Constitutional Court with the wording of section 49 as amended by the Judicial Matters Second Amendment Act of 1998, it is quite clear that there are great similarities but also certain important differences. In this regard it needs to be mentioned that the Constitutional Court is more liberal in what it regards as being permissible in terms of our Constitution than the amendment to section 49 as adopted by Parliament.

The South African Police Service is of the opinion that the amended section 49 should be reconsidered in the light of the judgement of the Constitutional Court in the case of S v Walters and that section 49 should be amended to bring it in line with what is permissible in terms of the Constitutional Court judgement.

Consultations are taking place with the Department of Justice and Constitutional Development in the above regard and the Portfolio Committee will be informed of progress.