Criminal Procedure Amendment Bill [B39 – 2010]: Response by the South African Police Service on the public submissions

Meeting report

Presentation: Response to Submissions on Proposed Amendment of S49 of the Criminal Procedure Act
Major General Tertius Geldenhuys, SAPS Legal Division, said that the use of force under Section 49 of the Criminal Procedure Act 51 of 1977 (CPA) was for the purpose of arresting someone. On the other hand private defence was for the protection of either oneself or another person whose life was under threat. Some of the submitters during the public hearings confused private defence and the use of force to affect an arrest under Section 49. It was important to look at the criteria mentioned in Section 49 as they defined the threshold on the kind of force that may be used. The criteria laid down under Section 49 and those required for private defence were completely different. The existing provisions of Section 49 do not allow a police member anything else other than to run after a criminal even if they had a gun.  If a policeman ran after a criminal then they had to be extremely careful as it had happened in the past that a criminal who was being chased by a policeman pulled out a gun and fired, killing the policeman. Some of the submitters also addressed the issue of the control of firearms, this was not what the Committee had to deal with and Section 49 was not on the regulation of firearms, there were other pieces of legislation that did this such as the Firearm Controls Act. Section 49 was not there to rectify any shortcomings that may exist in the South African Police Services (SAPS). If a SAPS member kills someone then the matter has to be investigated. The new Independent Police Investigative Directorate (IPID) that was due to replace the Independent Complaints Directorate (ICD) would also conduct an investigation. The IPID was independent and reported to the National Director of Public Prosecutions (NDPP).

The training of SAPS members for the purposes of using force was extremely important. The existing provision of Section 49 was not clear hence the amendment. There were two judgments that the Committee had to be mindful of- this was the Govender case which was a Supreme Court of Appeal (SCA) judgment and the Walters case which was a Constitutional Court (CC) judgment. SAPS members were trained to assume that there was a possibility that a person might die if they pulled their gun and fired at someone. Section 49 did not place an obligation on a policeman to use deadly force it merely provided a discretion. Deadly force did not mean that a person should be killed, this was a misinterpretation. In response to Professor Pierre De Vos’ submission, SAPS was of the opinion that he was correct in stating that the guidelines in Walters were clear and did not lead to confusion. The submission from the Institute for Security Studies (ISS) also supported the Walters judgment and referred to international best practice. The ISS had said that there should be a use of force policy; SAPS legal services shared this opinion. The problem was that a use of force policy should not be provided for in Section 49, this was done elsewhere such as the National Instructions that were provided for in the existing Act. The Portfolio Committee on Police also conducted oversight over the police. SAPS was also in discussion with IPID on the manner and form of reporting incidents.

The use of force had to be monitored continuously. The ISS had requested wellness programmes to address any post traumatic stress issues. SAPS already had a wellness centre and programme. There was also proper debriefing for members. Mr Craig Horn of the University of the Western Cape (UWC) had emphasised the importance of police training for the purposes of the use of force, SAPS agreed. The South African Policing and Oversight Forum (SAPOF) had said that the current wording of Section 49 was ambiguous, this was true and it was also one of the reasons why there was an amendment. Section 49 was also not going to prevent the torturing of persons in the hands of the police. The Lawyers for Human Rights had said that better policing could only be achieved through the capacitation of SAPS and not the use of force, SAPS agreed with this. Lawyers for Human rights had also submitted that there was not enough clarity around the current wording of Section 49. The Centre for the Study of Violence and Reconciliation (CSVR) was of the view that the use of force must not endanger the lives of innocent bystanders. SAPS agreed with this and it was already provided for in the current training manual. Police members were trained to act professionally especially towards the public. The Centre supported the Govender and Walters judgments; the proposed amendment encapsulated the principles laid down in these judgments.

The Centre for Human Rights had submitted that before the use of force was used the police had to have a high degree of certainty that the person being shot at had committed the crime. The response from SAPS was that either one had certainty or not there were no such things as a degree of certainty. The South African Human Rights Commission (SAHRC) supported the amendment of Section 49 and they understood that it sought to align the section with the court judgments. The SAHRC was more worried about the implementation of Section 49. SAPS was of the view that the proposed amendments were clear and easy to understand. The development of training materials once the proposed amendment was enacted would also be easier. Prof De Vos had made some hurtful comments during his submission when he said that the existing provision of Section 49 was clear and anybody who thought otherwise must be of a lower intellect. One could work out what he meant given that the police were saying that the existing provision was not clear. The SAHRC were happy with the provision given that the Bill specifically dealt with proportionality. In conclusion SAPS was in the process of finalising a memorandum of understanding with IPID to ensure the effective monitoring of the use of force by the police. The memorandum of understanding would also include the municipal metro police services. SAPS also undertook to finalise the development of a policy on the use of force. This could only be done once Parliament had expressed itself on the Bill; this also included the review of the existing training manual.

Discussion
Ms D Schäfer (DA) said that the first priority was to ensure that there were no wrongful deaths at the hands of the police. The job of the Committee was to ensure that the police did not have too much power that they could then abuse. There was a lot of sympathy for those members of the police that did work under difficult circumstances and that also had to make judgment calls on the spot. Most wrongful deaths caused by the police were done by junior officers; the problem was that the training was not adequate. How much training was done especially for junior officers and what was the breakdown for junior and senior officers in terms of staff compliment? National Instructions generally had a poor compliance rate for example the National Instructions for the Sexual Offences Act. Was IPID Act currently in force? Prof De Vos argued that the proviso excluded the proportionality, it seemed like SAPS was saying was agreeing to this. The ‘now or in the future’ in the proposed amendment was not in the judgments, why was this put in? Were there any simulations used during training?

Prof G Ndabandaba (ANC) asked if the Police Science Departments from universities were consulted. What were the level of fitness for police officers, were there any provisions to ensure that they remained fit.

Ms S Sithole (ANC) asked how many police officers had died over the years. 

Mr S Swart (ACDP) said that the case that worried him was the student police officer who allegedly killed a suspect with an R5 rifle. Had there been any court challenges to the existing provision since 1998? Would there be any objection if ‘immediate’ under Section 491(a) was inserted. Was ‘threatened’ not confusing given where a suspect was running away and the same goes for ‘the then or later’, how could one at that moment establish that they would not be able to arrest a suspect later, this was almost a prophetic requirement? 

The Chairperson said that he shared the sentiments that had been expressed by the Committee Members. Was it correct to conclude that in the presentation it was stated that the training was inadequate for the police?  Should deadly force be used in a situation where the suspect was fleeing and was unnamed posing no threat to the police or the public? Why was the memorandum of understanding only concluded now? Wits University in their submission stated that SAPS should incorporate the valuing of human life as a core principle, if the police did not commit to this then the training would be useless. It was strange that in the presentation it was said that SAPS was awaiting the finalisation of the Bill by Parliament before finalising the use of force policy, was it not policy first then legislation? This was worrying. Who took the decision that a student police member should be issued with an R5 rifle?

Adv L Adams (COPE) said that in 2007 the ICD had proposed that a system be put in place to identify policeman that were a risk, had this been put in place? Was the ICD adequately resourced? Were training methods violent and was there verbal and physical abuse of trainees? What was SAPS doing to minimise the levels of violent amongst its members? Has a new course for handling rioters been established? Had any of the 2007 and 2011 recommendations from the ICD been implemented and which ones had not been implemented? Were the National Instructions in plain language such that members of the police could easily understand them?

General Geldenhuys replied that 3500 new police recruits were trained per year. In addition there were specialised training courses. There were a large number of courses that were presented to junior members per year. Members were given copies of the legislation to read, taken through it word by word and then they were given illustrations of various scenarios as well as the proper outcomes that should ensue for each scenario. As far as simulations were concerned, DVD’s were used and members were posed with different scenarios. There was also firearm training which was periodical. Training where discretion was being tested was very difficult. The National Instructions covered the moment of arrest to when a suspect had to appear before court. The problem with domestic violence issues was that police members’ own personal views got involved. On the proportionality question, if there was any uncertainty then the Committee could remove it. The words ‘at the time or later’ were in the Walters judgment. There was a specific programme for the fitness of police officers and it was adequate. There were certain standards that were laid down which had to be adhered to. During the drafting of the amendment Bill a lot of organisations and persons were consulted. In 2003-2004 there were 108 members killed; in 2004-2005 there were 94; in 2005-2006 there were 95; in 2006-2007 there were 108; in 2007-2008 there were 107 and in 2008-2009 there were  109 and in 2010-2011 there were 93 and during this current financial year there were already 71 members killed. The current wording of Section 49 was unclear and subject to different interpretations. A new recruit went to college for a year and went to work at a police station as part of field training. A trainee member was trained to use various weapons during the first year. I don’t know if one could give a student constable an R5. An R5 could be issued if the circumstances required it. It was not normal practice for a student constable to be issued with an R5 however there may be circumstances which required this to be done. A serial killer who during an attempted arrest may kill again and an arresting officer would probably shoot at him to incapacitate him given his history.  The words ‘then or later’ came also came from the Walters judgment. The memorandum of understanding was being developed with IPID as the IPID Act was not yet in operation. A memorandum of understanding already existed with the municipal and metropolitan police as well as the ICD. Section 49 was not about the protection of life it was about the arrest of a person.

The Chairperson said that there he disagreed; the Committee viewed Section 49 as being about the use of deadly force.

General Geldenhuys said that if Section 49 was about the use of force in circumstances where a life was under threat then it would fall under the category of private defence.

The Chairperson said that this was where Govender came in, it was a wonder that the policeman who fired at Govender thought that he would be so accurate as to disarm him whilst he was fleeing in a stolen vehicle and not hurt anybody else on the busy Victorian road in Durban. And in the serial killer scenario, what if the suspect was killed and it was discovered that it was not in fact the serial killer?

General Geldenhuys said that this was why during training members were told that they should always ensure that they always had reasons for acting in a particular way. There was already a use of force policy but it was in relation to the existing provision. I am not in a position to answer for the ICD as I am in the police services, some of the recommendations of the ICD have been implemented and a list would be provided.

The Chairperson requested the National Instructions for the use of deadly force, the standing orders as well as the information on the breakdown between junior and senior constables.

Adv S Holomisa (ANC) said that the presentation was a summary of the submissions, could the responses from SAPS be furnished to the Committee in writing.

General Geldenhuys agreed to the requests.

Meeting adjourned.