Criminal Procedure Amendment Bill [B39B-2010]: briefing by Department of Justice and Constitutional Development

Meeting report

Criminal Procedure Amendment Bill [B39B-2010]: briefing
Mr Johan De Lange, Principal State Law Adviser, Legislation Division, Department of Justice and Constitutional Development, said that the amendment was largely academic in nature as it was merely aligning the wording of Section 49 with the judgement of the Constitutional Court which was referred to from the Walters case. Arrest was noted as having one purpose and one purpose only and that was to ensure a person appeared in court to answer a summons or charge against them.

Details of related sections of the Criminal Procedure Act (CPA) were explained to provide context for the amendment to Section 49 and the powers dealt with (see presentation).

Sections 42 and 47 were noted as these sections were provisions made for civilians to make arrests without a warrant and for private persons to assist the police in an arrest when called upon to do so. Private persons were not encouraged to make arrests however. Mr De Lange said that often there was a perception that when you owned property that it was necessary to act against an intruder but that this was not always the case.

It was emphasised that you cannot threaten a person with arrest to deter them from committing a crime. The purpose of arrest was solely to ensure they appear in court to answer a claim against them. When threats were used, it resulted in the issuance of large amounts of compensation paid out by state each year.

Mr De Lange compared the existing version of Section 49 with the new amendment (see presentation). There was a problem with the existing 49(2) which had been challenged in the Walters case (2002) and found to be unconstitutional and the Bill was ensuring the constitutionality of that section. A legal framework was also established regarding the use of force when affecting an arrest. The existing version of Section 49 was introduced by the Judicial Matters Amendment Act of 1998 but it only commenced in 2003. The main reason for this delay was the uncertainty within SAPS about the interpretation and application of Section 49.

The legal position set out by the Constitutional Court was put forth in detail in the presentation. This was followed by an outline of the provisions of the current Section 49 (see presentation)

The problem statement regarding the existing Section 49 submitted that it was formulated in 1998 when Parliament did not have the benefit of the clear decision coming out of the Walters case and thus there was now a need for an amendment. The existing Section 49 had been criticised as being difficult to interpret and as equating use of force for arrest to the law of self defence. This had created uncertainty among police officers about the legitimate use of ‘deadly force’. It had also been viewed by some commentators 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 the escape of a suspect who is reasonably suspected of having committed a violent offence, ………..

The Minister of Police and SAPS argued that the effect of the existing Section 49 was that a police officer may not shoot at a suspected murderer or rapist unless the police officer believed that the suspect was indeed a murderer or rapist based on reasonable grounds (unless the life of the police officer or another person at the time of the attempt to arrest was threatened). Further, an armed criminal who is fleeing without threatening anyone, must be pursued by the police to track down and arrest the suspect, with the risk that the suspect could turn and fire on the officer in pursuit. It was argued that the Section 49 amendment of 1998 imposed limitations on the use of ‘deadly force’ when effecting an arrest, that were more restrictive than the criteria laid down by the Constitutional Court. In fact, it had given a ‘right to flee’ to all those suspected criminals who were not suspected of being Schedule One offenders (such as murder or rape).

The aim of the new amendment was aligning Section 49 with the wording used and criteria laid down in the Walters case. A concise definition of ‘deadly force’ was inserted to promote clarity of language and paragraphs (a) to (c) of the proviso were replaced with wording in line with the Walters decision. Noted in particular was the wording within the text; ‘likely to cause’ not ‘intended to cause’ serious bodily harm as a point of clarification. The drafter indicated that ‘deadly force’ was not limited to shooting but also had other causes, especially if dealing with a frail or young person. The amendment as introduced to the National Assembly was also provided in text form (see presentation).

Concerns leading to adoption of the Bill by the National Assembly were discussed. The drafter noted that during deliberations by the Portfolio Committee, it emerged that some commentators on the Bill interpreted 49(2)(a) and (b) of the proviso as introducing separate and lesser requirements for the justification of deadly force during arrest since the main requirement of proportionality was not repeated in the proviso. The drafter said an abundance of care was given to this issue to ensure no mistakes would be made. Lastly the entire text of the amended sections was provided (see presentation).

Discussion
Mr M Makhubela (COPE, Limpopo) asked if there was any law preventing further research into judgements issued by the Constitutional Court in order to better understand the decision. He gave the example of the case of S v Mavhungu 1981(1) SA 56 (A) at 64 H - 65 H which had seen a man robbed of his belonging return home to retrieve a weapon and later murder his assailant. His defence had revolved around the right to self defence and protection of his personal property.

He asked whether the amendment was purely an academic exercise or a practical amendment to the Bill. As a former police commissioner, he said that police officers were trained that for all Schedule 1 offences ‘deadly force’ may be used. He wished to delve into the thinking of the judge in the Walters case to better understand the need for an amendment.

Mr V Manzini (DA, Mpumalanga) asked if it was possible for a civilian to use a firearm not to inflict harm, but to threaten a possible criminal as a means to make an arrest.

Mr B Nesi (ANC, Eastern Cape) said that under municipal bylaws, taverns must close at 2am. However they often sold patrons liquor just before closing and then the customers stayed until very late drinking. In instances like this, police were not respected so how would police officers be allowed to use force in similar circumstances. When a person was within another’s house he wished to know what was permissible in terms of allowable physical deterrence. Was a homeowner allowed to simply shoot an intruder?

Mr D Bloem (COPE, Free State) said he struggled to understand many matters within the Bill including arrest without a warrant. Under apartheid, similar actions were allowed but he believed these types of amendments could cause more problems within society when powers were delegated to private persons. He wished the Committee to consider arrest without a warrant very carefully due to the matter of revenge crimes when private persons assist police in making arrest.

Mr A Matila (ANC, Gauteng) wished to know where the private persons’ rights were on these matters, if they believed a person to be innocent despite an order by the police to aid in arrest. He asked in what way were people being protected and their rights upheld. In reality South Africa was a very violent society and in light of this, it was necessary for more clarification on this matter.

Mr J Gunda (ID, Northern Cape) remarked that he wondered where judges lived. Perhaps judges were unaware of the reality of life and crime in South Africa. He saw this as an infringement of human rights. He asked if there was time for the Committee to rethink the issue of private persons aiding police officers in making arrests – due to concerns for personal safety – before adopting this amendment and pushing it forward. He raised again the issue of revenge attacks post arrest and gave a personal example of giving testimony to arrest criminals only to have the same men invade his home and steal his television several years later.

Mr Bloem continued by saying that there was an issue of wording in the amendment, why was it ‘reasonable’ and not ‘lawful’ when so many different interpretations could be made of ‘reasonable’.

Mr L Nzimande (ANC, KwaZulu-Natal) said that there needed to be a balance between the need for civilians to make arrests as may be required in rural areas where no police are present versus their own individual right of personal safety. He said it would be preferable to passing this Bill today, if possible, due to the immense load of legislation coming to the Committee which needed to be completed by August.

Mr Nesi went on to say that in South Africa there was a need for police involvement in creating an open and safe society. He would agree to this Bill but only if certain wording could be altered in agreement with Mr Bloem; changing the phrase from ‘reasonably’ to ‘legally’ or ‘lawfully’. There were concerns for personal safety (especially in rural areas and townships where police protection was uneven) for those civilians who may be willing to aid police in identifying or aiding in the arrest of alleged criminals. He wished to encourage people to continue to help the police but there was a need for balance and due consideration was needed for an individual’s safety before the law.

Mr Makhubela wondered if lawmakers were not taking this matter lightly due to their distance from the realities facing a civilian who is required to aid police in an arrest. On Section 47, he asked if women could not also make arrests and if so would this not also require an amendment.

In response to the Members, Mr De Lange noted that his discussion of other sections of the Act were only to provide the context of the Bill to clarify Section 49. The Act was originally from 1977 so it did seem dated in some ways including Section 47 and its singular reference to males. It was unlikely that the law would put civilians at risk and there had been no rulings against private persons in this regard. The current issue was a simple one since the original Bill was outdated and killing as ‘reasonable’ was no longer as justified under current societal norms. The route chosen for the amendment was to stick to the text of the Constitutional Court’s decision. The safe route was to follow exactly the wording of the ruling and this involved the test of ‘reasonability’. This would ensure that there were no loopholes and all bases would be covered.

He referred to the Mavhungu case in saying that Section 49 did not apply in this context as it dealt solely with arrest not with self-defence or the extent of force you could use in a situation similar to that of the Mavhungu case. This was dealt with in a different section of the Criminal Procedure Act. He emphasised the fact that this Bill was merely an academic exercise in aligning the wording of the Walters judgement with the legislation. However, it also made the work of the police easier as it clarified how they must act in a given situation. Having to apply ‘deadly force’ in an arrest situation was not something police officers would ever want to be confronted with.

The bulk of comments brought out in the National Assembly related to training and hopefully with this amendment these matters could be cleared up.

Finally the test of proportionality was key to understanding how a police officer could act when threatened.

Chairperson T Mofokeng (ANC) as a point of clarification and in a bid to reassure Members after confusion over the issues being discussed, said that the Committee Members were not lawyers or judges so the Constitutional Court was best placed to make amendments and give advice. He said that the Committee did agree about the Bill’s amendments to Section 49.

The meeting was adjourned.