The Department tabled the Criminal Procedure Amendment Bill which amended section 49 of the Criminal Procedure Act. The purpose was to provide for greater legal certainty to arrestors as to the circumstances under which force could be applied when arresting a person. This was in light of the fact that the Constitutional Court in the Walters case had declared the old section 49(2) unconstitutional and invalid. In so doing the court set a number of principles that had to be used when effecting an arrest. Examples given were that the purpose of arrest was to bring before court for trial, persons suspected of having committed offences and arrest could never be used to punish a suspect. The amendment Bill attempted to bring section 49 closely in line with the wording that had been used in the Walters case.
Members were particularly concerned with the definition of use of force and what parameters were going to be given to policemen by law or by training to determine whether the suspect could be arrested at that time or later on. The Committee made a decision to call for written submissions.
Chairperson's Opening Remarks
The Chairperson acknowledged the presence of the Chairperson of the Police Portfolio Committee. He added that it was appropriate that the Members of the Police Committee be present since the Bill affected police directly.
Mr Johan De Lange, Principal State Law Advisor, Department of Justice, explained that the Department of Justice prepared a Bill that proposed an amendment to section 49 of the Criminal Procedure Act 51 of 1977 in order to bring it in line with the judgment of the Constitutional Court in the case of Ex Parte: The Minister of Safety and Security and Others: In re the State v Walters and Another (2002(2)SACR 105(CC)(Walters). The Department had invited public comments on the Bill and following the evaluation of the comments, certain refinements were effected to the Bill. The purpose of the Bill was to provide greater legal certainty to arrestors as to the circumstances under which force may be applied when attempting to effect an arrest, and the nature of the force that may lawfully be used in the course of an arrest.
A brief summary was given of the sections in Chapter 5 such as section 39, 42, 47 and the old section 49 before it was replaced by the current section 49 which was introduced by the Judicial Matters Second Amendment Act 122 of 1998. Although passed in 1998, it only commenced in 2003. The main reason for the delay in implementation was uncertainty within the South African Police Service (SAPS) regarding the interpretation and application of the new section. Mr De Lange gave a brief background of the Walters case. He stated that the Constitutional Court declared the old section 49(2) unconstitutional and invalid. The court explained the purpose of section 49 and set out the legal framework regarding the use of force when effecting an arrest.
The court held that the purpose of arrest was to bring before court for trial persons suspected of having committed offences, arrest was not the only means of achieving this purpose nor always the best. Arrest must never be used to punish a suspect and where force was necessary only the least degree of force reasonably necessary to carry out arrest could be used. Furthermore shooting a suspect solely in order to carry out an arrest was permitted in very limited circumstances only. The limitations in no way detracted from the rights of an arrestor attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person. The new section was criticized as being difficult to interpret and as equating the use of force for arrest to the law of self defence. This led to uncertainty among police officers regarding the legitimate use of deadly force. In addition some people viewed it as narrower in application than the guidelines furnished by the Constitutional Court in the Walters case since the court made it clear that shooting to prevent a suspect from fleeing would be sanctioned if the suspect was reasonably suspected of having committed a violent offence.
The SAPS argued that the effect of the provision was that a police officer could not shoot a suspected murderer or a rapist unless the police officer believed on reasonable grounds that the suspect was a serial murderer or rapist or unless the suspect threatened the life of the police officer or another person at the time of the attempt to arrest the suspect. The limitations imposed by section 49 on the use of deadly force when effecting an arrest were more restrictive than the criteria laid by the Constitutional Court. Section 49 gave a "right to flee" to all those suspected criminals who were not suspected of being serial killers. The aim of the new amendment was to bring section 49 closely into line with the wording that was used in the Walters case, inserting a definition of deadly force to promote clarity.
The Department of Justice received comments on the Bill from interested persons and institutions. It was pointed out that the invitation to comment on the Bill was specifically drawn to the attention of the organised legal profession, however, they did not submit any comment. A number of commentators emphasised the need for adequate training of the members of SAPS in the use of force and as such two changes were made to the draft Bill such as the definition of deadly force which had been revised.
Mr J Jeffery (ANC) stressed that the old section 49 was discriminatory and that he had problems with children being forced to participate in an arrest. In addition he pointed out that an input from the police would be very useful. In addition he stressed that there was a need to see police guidelines in terms of section 49. He was uncomfortable with the definition of the use of force and the way it was worded since it did not provide an arresting officer with an opportunity to deliver a number of potentially deadly blows to a suspect that was being arrested.
Mr De Lange responded that the way deadly force had been worded could provide space for an arresting officer to deliver a number of blows. Other force was only necessary to effect arrest.
Mr M Oriani-Ambrosini (IFP) agreed that there was need for public hearings and submissions. He noted that the amendment was not required to address the issue of unconstitutionality. The provision dealt with the shooting or killing of a person in the absence of any reasonable self-defence. He asked what parameters were going to be given to policemen by law or by training to determine whether the suspect could be arrested at that time or later.
Mr S Swart (ACDP) pointed out that there was a need to look carefully at the wording of the threatened infliction of bodily harm.
Ms D Schafer (DA) asked why there was a need to refer to deadly force when there was the proportionality test.
Mr Oriani-Ambrosini responded that there was no proportionality test.
Mr De Lange stressed that the Department of Justice had tried to widen the scope of when brutal force could be used. He added that the argument that Ms Schafer had raised had been raised by the Eastern Cape bench and it was a valid argument. In addition, he pointed out that there was need for a proportionality test. The Bill did not try to add the issue of constitutionality. The presumption of innocence arguments would be developed in the course of deliberations. He said it would be unfair on him to define what “threatened infliction” was.
The Committee passed a decision to call for written submissions.
The meeting was adjourned.
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