The Portfolio Committee on Justice and Constitutional Development discussed the Criminal Procedure Amendment Bill [B39 – 2010]. The Chairperson highlighted some of the issues that had been raised at the previous meeting with the South African Police Service namely the use of force to incapacitate a suspect. The Committee also had to consider the training of the police. The Chairperson further stressed that although the Bill had a few clauses, the weighty matter on the use of deadly force had to be given serious consideration. The Committee was of the view that the task at hand was to craft Section 49 of the Criminal Procedure Act to be in line with the Kriegler judgment laid down in the Walters judgment. The Committee asked whether there had been any legal challenges to Section 49 of the Criminal Procedure Act since the formulation post the Walters judgment. A Member of the Committee highlighted that the purpose of an arrest was not to punish but to bring someone before court. The Committee has requested from the South African Police Services legal team to provide its existing policy on the use of deadly force including the National Instructions on the use of force and its standing orders, this was handed over to the Committee during the meeting. A Member referred to clause 49(2)(a) and asked if it was not private defence.
Criminal Procedure Amendment Bill [B39 – 2010]: deliberations
The Chairperson highlighted some of the issues that had been raised at the previous meeting namely the use of force to incapacitate a suspect as submitted by the South African Police Service (SAPS). The Committee also had to consider the training of the police. In the presentation from SAPS it was clarified that there was a distinction between the use of force to defend oneself and the use of force in order to effect an arrest. Although the Bill had a few clauses, the weighty matter on the use of deadly force had to be given serious consideration.
Ms M Smuts (DA) asked if the task of the Committee’s was not to comply with the Kriegler judgment in the Walters case.
Adv Johan De Lange, Principal State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD), stated that this matter was serious and delicate however from a technical perspective it was simple. The view of the DoJ&CD was that the law was laid down in the Walters case. The DoJ&CD’s approach was to try and align the current Section 49 of the Criminal Procedure Act with what was laid down in the Walters case. The Department had provided an option 2 for the proposed amendment. The Department also followed the wording of the Constitutional Court judgment for example the word ‘grievous’ was used as opposed to ’serious’ as it was also contained in the judgment for the Walters case. Some commentators had pointed out that the language used in the current provision was confusing. The Department was of the opinion that Section 49 was currently not clear or aligned with the Walters judgment.
Adv S Holomisa (ANC) asked if the judge had applied his mind when deciding on using ‘serious’ or ‘grievous’.
Adv De Lange replied that a
Adv Holomisa said that there was however a crime called grievous bodily harm as opposed to serious bodily harm.
Adv De Lange said that the legal professions was moving away from such complex terms to plain language use, grievous bodily harm was an inheritance from the old legal system.
Mr J Jeffery (ANC) said that Judge Kriegler had referred to serious bodily harm in the judgment. The Committee was writing the law for lawyers and not the police who would receive a briefing and a manual once there was an enactment. The key issue was to draft this section so as to properly capture what was in the Kriegler judgment. Since the Kriegler judgment had there been any legal uncertainty?
Adv De Lange said that to his knowledge there were no legal cases challenging Section 49 after the Kriegler judgment.
Mr Jeffery said that if the Kriegler judgment was being followed then why introduce ‘serious violence’ in the proposed amendment as this was another objective factor, would this not create further uncertainty? What do the police think of option 2 and also what of the criminal law textbook writers?
Mr Tertius Geldenhuys, Major General of SAPS Legal Services said that ‘grievous bodily harm’ was imported from English law.
The Chairperson said that often a member of the police was faced with an on the spot decision and one could not come afterwards and say here’s Section 49 it was not complied with.
Ms Smuts said that the purpose of arresting someone was not to punish but to bring them to court. Perhaps there may be circumstances where a suspect may be allowed to go because the police would know that they would arrest them later.
Mr Jeffery said that a bank robber with an AK – 47 could be shot and this would be within the bounds of the amendment as the suspect would be suspected on reasonable grounds to have committed the crime involving the threatened infliction of serious bodily harm. The issue was should the approach be “belts and braces” where each type of crime was specified or should the broad approach be adopted which was what the Kriegler judgment was about. The problem with the former approach was that some types of crimes or scenarios may be left out.
Ms Smuts referred to a letter she had received from a journalist who was a police reservist as well which highlighted some problems that police members faced e.g. people who interfered with their work as well as refusing to obey a police members’ instructions.
General Geldenhuys said that in the South African Police Service Act, Section 67 provided that any person who wilfully hindered or obstructed a member of the police service in the performance of their functions would be guilty of an offence.
The Chairperson said that the Committee had requested the SAPS to provide its existing policy on the use of deadly force including the National Instructions on the use of force and its standing orders.
Mr Jeffery said that the Police Portfolio Committee should follow up on the training issues and other issues given the Committee’s own workload.
The Chairperson said that the request was for the purposes of a better understanding of the work of the police and the request was still applicable.
General Geldenhuys said that the documentation was ready to be handed over at the meeting however the copies of the standing orders were a lot and only the relevant standing orders had been submitted. The standing orders were also being reviewed.
Mr Jeffery said that the Committee should also seek the views of the Independent Complaints Directorate (ICD|) on the proposed amendment and the Committee should focus on the Bill and the wider things could be dealt with by the Portfolio Committee on Police.
Ms Smuts said that the other documentation should be accepted except the standing orders.
Ms L Adams (COPE) referred to clause 49(2)(a) and asked if it was not private defence.
Adv De Lange said that it did border on private defence and it was exactly what Judge Kriegler had said, it would be difficult to leave this out as it was contained in the Kriegler judgment.
Mr Jeffery said that there were lots of provisions in the Criminal Procedure Act that dealt with arrest; the use of force had been separated from other provisions in the Criminal Procedure Act. There were other use of force provisions in the Police Act which confused those who read the one and not the other. The Committee was not re-inventing the wheel.
The meeting was adjourned.
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