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JUSTICE PORTFOLIO COMMITTEE
27 FEBRUARY 1998
B95-97 (JUDICIAL MATTERS AMENDMENT BILL) & B92-97 (MAGISTRATES AMENDMENT BILL): HEARING OF EVIDENCE
Documents handed out:
South African Police Services
Attorneys' Law Society
Human Rights Committee
South African Human Rights Commission
Submissions on B92-97 by:
Public Servants Association
Judicial Officers Association of South Africa
Submission by Advocate Gert Joubert from the South African Police Services (SAPS)
B95 - 97: Judicial Matters Amd Bill (section 49)
Adv Joubert proceeded to read excerpts from the SAPS submission on section 49.
The scope and application of section 49 should at all times be separated from the common law justification ground of self-defence.
Adv Joubert proceeded to list the countries which the SAPS research team had visited and those which they had not visited but which had been included in the study.
The committee was referred to annexure B of the SAPS submission which contained the SAPS proposed amendment to the tabled bill. The amendment basically involved a broadening of the proportionality test to "proportional in the circumstances" instead of "proportional to the seriousness of the offence".
Adv Joubert pointed out that the present section 49 is split into two subsections and that this split has caused legal uncertainty in the past. The tabled bill proposes one composite section.
Force should only be used when proportional and reasonable. The list of crimes in the schedule was designed to reflect local priorities. The purpose of allowing force is to effect the arrest.
There are certain policy decisions which the committee will have to make:
(1) Whether to include a proportionality requirement.
Adv Joubert pointed out, that this was actually not debatable due to the impact of the Constitution. However, there was an argument that if the section does not contain a proportionality requirement, such could be superimposed by the courts when interpreting the section in the light of the Constitution. In SAPS opinion, an express proportionality test would be the best way to go.
(2) Whether there should be a list of crimes to provide the threshold for which deadly force will be allowed.
Some argue that a the use of a list runs counter to the proportionality test. However, without a list there are no guidelines for the police to follow and the section may be unconstitutional for being too vague. The SAPS therefore opts for the inclusion of a list.
(3) If yes, what should such a list be based on?
This is very much a policy decision and depends on the legal interest which section 49 is designed to protect.
A superficial look at the Canadian statute would indicate that the interest protected is life, however, it is actually the legal order. Adv Joubert referred the committee to the Makwanyane decision of the Constitutional Court. The legal order concept: the interest protected is the interest of the community in the maintenance of the legal order. All legal systems recognize that one may retaliate with lethal force where the legal order is threatened. Some countries go further than this and include crimes in their lists, which are local priorities.
The overriding requirement of proportionality should be used in all cases, even if the crime is listed in the schedule.
At this point the Chairperson, Adv J De Lange (ANC) interjected and asked Adv Oosthuizen, the state law advisor who had been tasked with certifying the bill, which parts of the section he found problematic.
Adv Oosthuizen said that he found the UK and Canadian systems very instructive. The UK specifically abandoned the felonies test and now just works with the proportionality requirement. Canada does not use a list of crimes.
Adv Oosthuizen felt that the list would give false security to police officers.
The Chairperson said that he understood why Adv Oosthuizen found the above "instructive", but why does he feel that the bill is unconstitutional?
Adv Oosthuizen said that the exclusion of the minimum force requirement is problematic.
The Chairperson re-iterated that he wanted to know what the state law adviser’s reasons were for coming to the conclusion that the section was not constitutional and therefore that he was unable to certify it.
Adv Oosthuizen mentioned that the inclusion of the list conflicts with the principle of proportionality. Prior to 1994, the courts were dissatisfied with the list and therefore restricted the use of section 49.
Ms Chohan Kota (ANC) asked the chairperson for clarity on the issue of minimum force. The Chairperson explained that the requirement was in the SAPS Act but not in section 49.
Mr Hofmeyr (ANC) asked for Adv Joubert to respond to Mr Oosthuizen’s comments and to expand on why the SAPS want to revert to the wording "proportional in the circumstances"
Adv Joubert: The minimum force requirement is incorporated in section 49 in the words "the person may use such force as may be reasonably necessary to...". There is a whole line of cases interpreting these words to incorporate the minimum force principle.
Chairperson: If there are other jurisdictions which express the minimum force requirement, would you argue against its incorporation?
Adv Joubert replied that if an express requirement of minimum force is incorporated, one may lose the words "reasonable and necessary in the circumstances" . The words "reasonable and necessary in the circumstances"have been interpreted by the courts and thus it would be desirable to keep them.
Chairperson: The section does however express one of the factors of "reasonably necessary" ie proportionality, why not express the minimum force requirement?
Adv Joubert: "Reasonable and necessary" may not include the element of proportionality, thus it is important to express it.
Chairperson: Does SAPS have a problem with incorporating factors which must be taken into account, for instance by the use of the words; "all factors must be taken into account, including..." and then to list such factors?
Adv Joubert: We would not like to see case law codified in the section.
Mr Hofmeyr (ANC): There is a question has to whether the proportionality test is an element of "reasonable and necessary" or visa versa. Mr Hofmeyer felt that reasonable and necessary are part of the broad proportionality test. He pointed out that one should rather use the word "and proportional in the circumstances" after "reasonable and necessary" and not put the proportionality test in a proviso. By using a proviso, you restrict the proportionality test to whether or not you use force, and it does not qualify the amount of force. Both tests of proportionality and reasonable and necessary should apply to when force is used and to how much force is used.
Adv Joubert: The seriousness of the offence is a big factor in the proportionality test, but the more modern view of the proportionality test incorporates more than just the seriousness of the offence.
Chairperson: Is SAPS happy with the list of crimes in schedule 7?
Adv Joubert: Yes
Mr O’Malley (IFP): SAPS wants to go back to the earlier draft of "proportional in the circumstances" - is this not in conflict with the use of a list?
Adv Joubert: During the research, it was found that most jurisdictions have lists and proportionality tests.
Mr Hofmeyr (ANC): The effect of the list is to specify that you cannot use deadly force for crimes which do not fall in the list.
The Chairperson summed up by saying thank-you to the SAPS team and said that the committee would keep in contact with them and Adv Oosthuizen.
Submission by Mr A. Harris (Attorneys' Law Society)
B95 - 97:Judicial Matters Amendment Bill (section 73 of the Insolvency Act)
ALS is concerned with the taxation when trustees obtain legal assistance. The discussion centered on creditors and trustees. Mr Harris queries the authority of the Taxing Master over the attorneys, whereby it could be possible for the Master to check attorneys. Mr de Lange (Chairperson, ANC) felt that the Master's office did not have the capacity to implement or act on this capacity. The Chairperson inquired as to whether or not attorneys can be put under investigation and oath if the Tax Master so wishes. Mr Harris confirmed that this was possible. The Chairperson thanked Mr Harris and ALS for their concise submission.
Submission by Mr C.H. van Rensburg (Public Servants Association)
B92-97 Magistrates Amendment Bill
Mr van Rensburg's submission concerned personnel matters; in particular the retirement of magistrates and any criminal activities they may engage in. The current age of retirement is 65. Mr van Rensburg suggested that the retirement age be changed to 60 with the option to extend. Mr van Rensburg reasoned that in 1996 the State approached organised labour to reduce its contribution to pension funds (1% reduction by the state is R460 million per year). For other public service employees the law has been changed to allow them to retire at 60 with magistrates being an exception. The retirement age is not compulsory but rather voluntary. The person retiring is allowed to collect benefits up till 60 years if he/she retires at 60.
With regards to the criminalisation of misconduct proceedings, Mr van Rensburg was of the opinion that the fact that the transgressions in labour law are now criminalised was unsatisfactory. The Chairperson on the other hand was of the opinion that it is an empowering clause. Mr van Rensburg believes that employees (magistrates) should have the right not to have to attend a disciplinary meeting. Mr Gibson (DP) was of the opinion that Mr van Rensburg was more concerned about other public service employees than magistrates and requested that there be more incentives for magistrates to remain in the service as there is currently a need for good magistrates within the law courts.
Mr Hofmeyr (ANC) was also of the opinion that the age should not be lowered and he questioned the fact that the PSA represents magistrates as the latter are supposed to be independent. Mr van Rensburg stated that magistrates are disadvantaged because the age for other public service employees has been lowered to 60 years old and the magistrates still have a retirement age of 65 years old. Thus magistrates receive less benefits now. The Chairperson disputed the assumption that the magistrates are part of the public service. They themselves want to be part of the judicial arm. Therefore the link that Mr van Rensburg has made with other public service employees is not relevant unless the link is made with regards to pension funds but other issues are not relevant.
Mr Gibson (DP) stated that although the magistrates might be disadvantaged concerning pensions, but their salaries made up for it. The Chairperson said that Mr van Rensburg should put his points on paper concerning the retirement age but his submission with regards to the criminalisation does not hold water at all.
Submission by Mr RE Lane (Judicial Officers Association of South Africa)
B92-97 Magistrates Amendment Bill: Retirement age:
Mr Lane stated that in order for magistrates to be equated with the judiciary and judges their services had to be kept for as long as possible. The age of 60 as a mandatory retirement age is not an option for JOASA. He stated further that there should not be discrimination against age as persons of maturity can contribute. JOASA would prefer it if capable magistrates had the option of continuing their services.
Section 14 of the Act:
JOASA's main objection to s.14 are the powers of the Director-General. Section 14 of the Act does not recognise separation of powers and there should be administrative autonomy.
The Chairperson asked if JOASA would prefer the judiciary to be independent and thus submit their own budgets etc? Mr Lane replied that there should be a co-ordinated structure and the Department of Justice should not have carte blanche. There should be protection and consultation before hand and that section 14 should not be amended. Section 16 (of the current Act) serves that purpose. The Chairperson opposed JOASA's submission on the basis that the amendment only concerns administrative duties and that s.14 (2 & 3) states that the minister must consult with the commission first. Mr Gibson questioned the practicality and necessity of s.14 (3). Mr de Lange stated that JOASA felt that it is unconstitutional to give non-judicial tasks to magistrates and that decisions regarding s.14 should be made in consultation.
Submission by Ms P. Proudlock (Human Rights Committee)
B95-97:Judicial Matters Amd Bill (Section 49)
Ms Proudlock highlighted excerpts from the Human Rights Committee’s submission
It is important to note that section 49 applies to police officers, private security officers and private persons. Although police training and standing orders place limits on police officers’ powers to use force, there is no such guidance or training provided to private citizens. This is problematic, particularly in the light of the increase in community policing forums, neighbourhood watch bodies and vigilante groups.
The training and guidelines available to private security officers are limited. This is particularly problematic due to the fact that the security industry employs about 400 000 people, while the SAPS has approximately 140 000.
A brief history of the bill was presented to the committee. Ms Proudlock highlighted a draft of section 49 drafted by the SAPS task team, which conducted extensive comparative research on the section. That draft incorporated a broad proportionality test with the use of the words "proportional in the circumstances" instead of the words used in the tabled bill; "proportional to the seriousness of the offence". The Raloso case was also mentioned. This case concerns an application to have the constitutional validity of section 49 tested by the Constitutional Court.
The current section 49
In looking at the current section 49, Ms Proudlock listed some of the requirements laid down by the courts when interpreting the section. She specifically referred to the requirement that the force used must be "reasonably necessary in the circumstances", pointing out that the courts have interpreted these words to the effect that the arresting person should consider whether the suspect can be arrested at a later stage.
However, despite the courts restrictive interpretation of section 49, the following problems remain:
1)The defence created by section 49(2) is not balanced against the seriousness of the crime which the suspect allegedly committed.
2)The section empowers the arresting person to kill a person solely for the purposes of effecting an arrest. It is not restricted to cases where there is an imminent or future risk to life, person or property.
In short, the section does not incorporate a proportionality test.
According to statistics supplied by the Independent Complaints Directorate, during the period April 1997 to December 1997, 203 people were shot dead by police officers effecting arrests.
Section 39 of the Constitution provides that the courts must consider international law when interpreting the Bill of Rights. Ms Proudlock therefore mentioned some relevant international law, specifically the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. She highlighted the following provisions:
"Whenever lawful use of force and firearms is unavoidable, law enforcement officials shall;
(a)exercise restraint and act in proportion to the seriousness of the offence and the legitimate objective..."
"Exceptional circumstances, such as internal political instability or any other public emergency, may not be invoked to justify any departure from these basic principles."
Section 39 of the Constitution further provides that a court may consider foreign law when interpreting the Bill of Rights.
Ms Proudlock referred the committee to the HRC submission, specifically the sections on Canada, USA and Switzerland.
In Canada force may only be used during the making of an arrest if the person making the arrest believes on reasonable grounds that the force is necessary for the purpose of protecting themselves or any other person from imminent or future death or grievous bodily harm.
In the USA, the common law rule provides that police can use deadly force to stop an escaping felon, as a last resort. The model penal code suggests a prohibition on the use of deadly force, unless the force used creates no substantial risk of injury to innocent persons and the officer believes that the crime involves the use or threatened use of deadly force; or there is a substantial risk that the offender will cause serious bodily harm if apprehension is delayed. The US Supreme Court in Tennessee v Garner (1985) stated that, "where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so." The statutes in the various states differ. Specific attention was drawn to Texas.
In Switzerland, a police officer can use force to arrest a person to an extent proportional to the circumstances, when no other means of action exists.
South African legislation
The committee was referred to the Correctional Services Amd Act 1997 which provides that if a custody official resorts to the use of force, only the minimum degree of force may be used and such force must be proportionate to the objective sought to be achieved.
Specific comments on the proposed amendment to section 49
1) HRC would like to see the requirement, that the arresting person must consider whether the person can be arrested at a later stage, in the new section 49.This can be incorporated expressly or by making the reasonably necessary test broader.
The express approach could be similar to the approach adopted in some American states to the effect that the suspect is likely to endanger life or persons unless apprehended without delay.
The broad approach would encompass the following wording: " in order to prevent the arrestee from escaping from justice, the arresting person may use such force as may be reasonably necessary in the circumstances."
2) The proportionality test proposed in the section is limited to a weighing up between the seriousness of the offence and the degree of force used.
The test should be broadened to encompass a full proportionality test. The use of the words , "may use such force as may be proportional in the circumstances" would incorporate the broad test.
3)HRC strongly suggests that the bill should depart from the approach of using a schedule to identify the crimes for which deadly force may be used. Instead the law should permit the use of force where there is an imminent threat to the life or a serious and imminent threat to the bodily integrity of the arresting person or another person, or where the offence for which the arrest is being made involves the loss of life or serious bodily injury.
4) If the committee resolves to keep the schedule, HRC would strongly suggest that only violent crimes should be in the schedule.
HRC’s suggested rewording
If any person authorised under this Act to arrest or assist in arresting another, attempts to arrest such person and such person -
(a) resists the attempt; or
when it is clear that an attempt to arrest him or her is being made, the person so authorised may, in order to prevent the person concerned from escaping from justice, use such force as may be reasonably necessary and proportional in the circumstances.
Provided that the use of force which is likely to cause death may only be used where the arresting person reasonably believes that the person concerned is to be arrested for an offence involving the use or threatened use of life threatening violence or serious bodily injury, or there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the arresting person or another if the arrest is delayed.
Questions were asked on the issue of a list of crimes, the types of crimes to be included in the list ,what the situation is in America(Mr O’Malley - IFP), whether the HRC’s re-wording would allow the police to shoot an escaping alleged serial rapist (Mr Gibson - DP) or robbers driving off in a Fidelity Guard van containing R31 million(Mr O’Malley - IFP).
On the question of a serial rapist, Ms Proudlock said that HRC’s wording would allow the use of deadly force, depending obviously on the other circumstances, because rape amounts to a "serious bodily injury".
In the case of the robbers, HRC’s re-wording would not allow deadly force to be used unless the robbers threaten deadly or serious harm or the robbery involved deadly or serious harm.
Ms V. Mayer (South African Human Rights Commission)
B95-97: Judicial Matters Amd Bill (Section 49)
The Commission believes abroad proportionality requirement should be included in the section. The Commission does not have any concerns regarding the use of a schedule, but the types of crimes listed in the schedule are problematic. They would call for the schedule to be limited to crimes which amount to crimes against the person. Property crimes therefore should not be included. Furthermore, the schedule has to be coupled with a proportionality test. The issue of minimum force should be considered. The Commission would like outer limits to be set for the use of deadly force and does not think the case law should be expressly codified.
Mr Neil Coleman (Cosatu)
B95-97:Judicial Matters Amd Bill (section 3)
Cosatu welcomes the amendments as it improves the situation of the workers of employers who become insolvent. Cosatu would like to request that the Bill be passed through Parliament as soon as possible. Mr Coleman stated further that the workers would have first claim against the insolvent after payment to liquidators and secured creditor. Cosatu is concerned about the lengthy period of time it has taken for the amendment, which was agreed to at Nedlac on the 30th June 1996, to come before this committee. Mr Gibson (DP) was in agreement with Mr Coleman's submission.
Mr Hofmeyr(ANC) was concerned that s.3(6) may not include certain definitions of 'employee' and expressed the wish of the committee not to 'step on the toes' of Nedlac. The Chairperson stated that if this committee decides on the definition then it would be allowed because the minutes of Nedlac do not show a discussion of the definitions.
The Chairperson then asked whether 'excluding independent contractor' as in s.3.(5).(a).(i) should not be included in (5).(a).(ii)? Mr Coleman said that no agreement had been reached yet and that they would consult the LRA and return to the committee. He stated that Cosatu viewed it as an important issue. The Chairperson stated his concern that the implementation of the Bill would be a lengthy process and that there are still quite a few channels, which have to be consulted. He expressed the view that the Bill should be implemented to help workers. However Nedlac should also present their case and although they have been contacted no reply has been forthcoming to date.
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