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PORTFOLIO COMMITTEE ON JUSTICE
16 March 1998
JUDICIAL MATTERS AMENDMENT BILL [B95-97]: DELIBERATIONS
Documents handed out:
Draft document: amendments agreed to on B95-97
Alternative wording for B95-97
Press release regarding the Law Society of South Africa
Section 49, the section which regulates the use of force when making an arrest was the subject of discussion. There were three draft amendments to the section on the table. The first one had been drafted by the Department [document entitled DRAFT 1 (16/3/98)], the second [Proposal of alternative wording - 1] and third [Proposal of alternative wording -2] had been drafted by the SAPS team together with the department. The committee turned to discuss draft three.
The Chairperson, Advocate de Lange (ANC) announced that the SAPS team consisting of Adv Joubert and Adv De Kok, and the Department drafter, Mr Labuschagne had drafted alternative wording for the section 49 amendment.
In 49(2) the court is told what factors to look at. It will also serve as a guide for police officers. In 49 (1) there is a proviso which introduces an age clause. Deadly force may only be used where the person to be arrested "did not, at the time, appear to the person using force, to be under 16 years of age." Section 49(3) stipulates that the onus of disproving the defence shall be on the State. But there is an obligation on the accused person to disclose the defence at the time of plea.
Proportionality is part of 49(1). Section 49(2) sets out the factors which the court shall take into account when determining whether the force used was reasonably necessary in the circumstances.
The fourth point is the schedule of crimes for which deadly force may be used. It has not been attached to the drafts.
The Chairperson re-iterated that the SAPS team had been seconded onto the Justice department drafting team.
The SAPS representative said that the initial problem with section 49 had been sorted out. Furthermore, it is important with any amendment to section 49 that the police officers can take the section, read it and know what to do.
Mr Groenewald (NP) asked why 49(3) - the onus clause - had been added. The Chairperson said that the onus clause was not going to be decided or passed today.
Mr Hofmeyr (ANC) asked what if somebody is being fired at?
Adv Joubert of the SAPS said that section 49 has nothing to do with self-defence. Self-defence is a common law defence.
Mr O’ Malley (IFP) questioned why the minimum age had been changed to 16.
Chairperson said that the introduction of an age clause set at 16 was to bring the bill into line with other bills passed recently by the Justice committee.
Mr Hofmeyr(ANC) said that there has to be a cut off for the use of deadly force, but felt that there were stronger considerations which should be taken into account and that age should not be singled out.
Mr Gibson (DP) also questioned the introduction of an age clause.
The Chairperson stressed that this bill was going to be the strongest law which the committee would deal with as it gives people the right to kill and not even the state has the right to kill people. There have to be sufficient checks and balances. We don’t know whether the courts will accept the parameters set by us, and thus we will have to be careful.
Mr Gibson(DP) said that the schedule 8 list of crimes and the age clause were being confused. If a 15 year old kills someone, the case should be treated the same as if he were a 21 year old. The age clause should be removed as it mixes up two different concepts; age and seriousness of the offence.
Ms Camerer (NP) felt that it was important to distinguish between child and juvenile. She said that a child was someone below 14 and expressed concern at putting the age clause as a proviso. She asked how a police officer can determine whether the child is 16 or younger?
The Chairperson closed the morning session of deliberations and stated they would continue after lunch and would concentrate on the schedule.
The committee listened to a presentation on the Launch of the new Law Society.
At 2.30 pm the committee continued discussing section 49.
The Chairperson said that there had been various complaints regarding the schedule and he asked the SAPS team to give their thoughts on the schedule now.
Adv Joubert answered that there were three views.
1. don’t need a schedule
2. have abroad category of offences for which deadly force may be used; or
3. a proportionality test plus a schedule
Regarding the types of crimes in the schedule, he mentioned that other African nations include some crimes in their lists which are not found in the European countries lists.
He said that it the basis for the list were to be crimes involving life threatening situations, then half the crimes in the existing schedule would be included. The problem areas are those crimes where there is no life threatening violence, for instance car theft, kidnapping and housebreaking. He mentioned that some jurisdictions include housebreaking in their lists but only when it takes place at night.
The decision on where to draw the line should be made by looking at the specific problems in South Africa. The theft of motor vehicles attacks the legal order, while livestock theft is a big problem often involving the loss of life. The decision should be made also by looking at other countries lists.
Adv De Kok said that the new draft was more compatible with the use of a schedule. It shows that one is not balancing a life against a life but a life versus the interests of the community. You are actually weighing the nature and extent of the risk against a life.
The Chairperson enquired whether the "new " proportionality test in Europe was objective or subjective?
Adv De Kok replied that it was a subjective test. The Chairperson requested the relevant court cases which give authority to this view, specifically those of India, Canada and Germany.
It was asked why the schedule was limited in relation to a person escaping from lawful custody. Mr Hofmeyr (ANC) said that he could understand why this had been relevant when section 49 did not have a proportionality test, but questioned its continued relevance.
Adv Joubert commented that the problem with a broad proportionality test was that it provided no guidelines to the police. If you want to make it broader than you will have to ensure that the police are trained better than they are at present. The police are already trained on the contents of schedule 1.
The Chairperson asked whether all robberies should be included. He specifically mentioned handbag snatching and asked if the SAPS team had thought about using the term "robbery with aggravating circumstances".
Adv Joubert replied that "aggravating circumstances" was a technical teat which belonged to the realm of the prosecutor. A police officer is not trained to think in sub-categories but to think broad.
The Chairperson felt that if this was the case, there were tow other crimes in the schedule which were particularly confusing. He mentioned the following two:
1) "any offence under any law relating to intimidation or terrorism or control over arms, drugs , or radioactive material and in respect of which punishment of imprisonment for a period of five years (or longer) may be imposed"
2) "Any offence involving serious violence which is life threatening or the use of a firearm or explosives or the threat thereof"
Adv Joubert said that his personal view was that one could scrap category two. Mr Hofmeyr (ANC) agreed.
The Chairperson said that he wanted more information on why the drafters had linked "risk of harm" to "proportionality" in 49 (2)(a). He said that the words "reasonably necessary" connote an objective test. The objective is to include proportionality in "reasonably necessary". Express inclusion is necessitated by the courts inability with the present section 49 to read in the requirement of proportionality. The section should list a number of factors which define "reasonably necessary".
Adv De Kok said that he was worried about making "proportionality" an element of "reasonably necessary". The general consensus on proportionality is that it involves a three step enquiry:
1) The force used must be appropriate (designed to be effective)
2) It must be necessary in the circumstances
3) It must be proportional in the narrow sense (this involves the weighing of interests)
If proportionality is made an element of "reasonably necessary" it might introduce a new type of "proportionality" which the courts will be forced to define.
"Reasonably necessary" has worked quite well in our law. The only problem was that the courts could not read the requirement of proportionality into it. It is thus not understood why the proviso in the tabled bill can not be kept. This proviso states that the force used must be proportional to the seriousness of the offence. The committee should try to combine it into one single test like in other countries.
The Chairperson reminded everyone that the confining of the proportionality test to the "seriousness of the offence" is a contentious issue. At the workshop held last Monday, an agreement was reached that the test should be broadened. We thus want to encourage the use of a broader, objective test.
Ms Ngwane (ANC) asked in relation to the crime of "assault when a dangerous wound is inflicted", exactly what was a dangerous wound?
There was some discussion and disorder and another MP (ANC - unidentified) asked whether ‘weapon" was defined somewhere.
Mr Hofmeyr (ANC) questioned whether serious economic crimes should be excluded from the schedule and asked the committee to consider whether they should be included.
Adv Joubert said that only a few countries have property crimes in their schedules. The Germans have the most.
The Chairperson requested court cases on how the South African Constitutional Court has interpreted the proportionality test, specifically in relation to the limitations test.
The committee then moved on to discuss the clauses of the Judicial Matters Amendment Bill which deal with insolvency.
The monitor left at this point.
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