The responsibilities of the South African Police Services (SAPS), as taken up in section 205 of the Constitution Act 108 of 1996, includes to battle, prevent and the execute crimes, to keep the public in order, to safeguard and protect the people that live in the State and their properties, and also to support the law. In terms of section 38 of (CPA) 51 0f 1977 that is Criminal Procedure Act (CPA), arresting criminals is one of the SAPS “modus operandi” in the execution of its crime battle duties or prevention. The major question has always been whether it is constitutional and justifiable for the SAP to use force, especially deadly force, in order to arrest a person seen as a criminal or prevent or control crime. This question is even more pressing in mainly that section 11 of the Constitution guarantying every single person in a state the right to life, this include even those who find themselves doing wrong thing and breaking laws. USE OF DEADLY FORCE
Before 1994, policing was described by the misuse of authority by the members of the erstwhile (SAP) South African Police. In this particular time, the political state characterised by the liberty struggle led to the South African police being used as an instrument of total control and cause of the apartheid regime. The very quick spread of the use of force in arrests, imprisonment without trials, police forays in the towns, detention without trial, a lot of questioning and use of violence to get information from convicts or suspects was common and also torture of accused was also very much practiced then. The purpose of the arrestor is to catch the suspected person that is before the court for trial commences and conviction, so that the suspected person may be led to stop going against the law. This method is indeed very essential since in our law, the accused persons are innocent until they are eventually proven guilty and therefore sentenced to jail. Having respect to this object, it has been quite difficult to exercise this in trying to justify the use of force, most especially the deadly force disguised as justifiable homicide by terms used in the old section 49 of the Criminal Procedure Act (CPA). One of the important provision of section 49 of the Criminal Procedure Act states that “Where the person concerned is to be arrested for an offence referred to in Schedule 1 or is to be arrested on the ground of having committed such an offence, and the person authorised under this Act to arrest or to assist is arresting him cannot arrest him or prevent him from fleeing by other means than killing him, the killing shall be deemed to be justifiable homicide.”. Section 49 says that the person arresting should be authorised, right under a defence called the justifiable homicide, to be able to use deadly force on a suspect who refuses to be arrested or flees from arrest. The important things needed for a defence of justifiable homicide to be successful, were that the court should be able show proof that the accused person’s intension was to arrest the suspect and have the power to do so, in the Criminal Procedure Act; The person arresting must have known that the dead suspected person had committed a serious
offence, like murder; The person accused that is the arrestor, must have tried to arrest the dead suspect and the dead suspect must have refused arrest or ran away from arrest; The dead suspect must have known that they were about to get arrested; The accused arrestor must have had intentions to kill the dead suspect and; that there were no other reasonably and practicable and effective ways of arresting the dead suspect or preventing his running away from arrest than just killing him (1994:356). The courts gave limits to the application of section 49(2) by giving that the proof lies on the person or accused (arrester) depending on the guardians of section 49(2), to show that his or her action fell in the that particular section. The state had to show proof the root of the offence committed goes beyond a sensible uncertainty. The courts specified that section 49 needed a severer test, and that, that section shouldn’t be given a open-minded meaning but rather, it should and must be interpreted and practiced but with limits against the person that wants to depend on it (Burchell, 1997). In Section 49, as it used to be, it was used by the law implementation agencies as a free means to kill people. It was often seen as a discriminatory root most especially to the blacks mostly on the receiving end. The continuation of this so called licence to kill people wasn’t a surprising issue, this was because the criminal justice system back then wasn’t liable to the constitutional system that respected the expected human rights, especially the right to bodily integrity and the right to life. THE CONSTITUTIONAL ERA
The retaining of section 49 would be quite impossible to put back together with the elimination of death penalties. If the state doesn’t have any right to take a suspect’s life in punishment of a suspect, then one of the major question is how the right to kill a person who is suspected for committing offences will be retained? The intentional use of force by SAP as in terms of section 49 of the Criminal Procedure Act as discussed started a prima facia abuse of right to life (Steytler, 1998). Mindful of the advancement of South Africa to a legitimate State having respect for human life, and the sometimes the SAP ready to use much force, they also suggested an adjustment to section 49 of the Criminal Procedure Act. In the short-term, the SAPS gave directions to its members regarding the use of force in arresting suspects, depending on the adjustment made to section 49. These directions
replaced section 13 of the South African Police Services Act (SAPS Act) 68 of 1995, which directs these police members to use just minimal force which is a sensible circumstance where by such a member is authorised lawfully to use force to carry out all duties (Nel and Bezuidenhout, 1997). The orders were not ground-breaking stages by the SAPS, but more like a reformulation and embodiment of the courts translation of the old section 49, most especially those decisions that limit the use of so much force or deadly force is required as the use of force policy in the document for the SAPS. These directions have been possessing influence in the words of the new section 49.
OLD SECTION 49 VERSUS THE NEW SECTION 49
The old Section 49 has now been adjusted by the Judicial Matters Second Amendment. Act 122 of 1998. It says: “If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds” The amended section 46 explains that force is indeed very necessary for the protection of the person arresting, and any person that is assisting the person arresting suspects lawfully or any other person from grievous bodily harm or death or imminent; It also explains that there is a large risk that the suspected person might cause grievous bodily harm or future death or imminent to the arrestor if the suspect’s arrest is being delayed; or that the offences that are in progress are of serious and forcible nature, and also involves threatening of one’s life or very strong likelihood that can cause serious bodily harm. In spite of some obvious comparisons, the new section 49 signifies a notable improvement in the defence of justifiable homicide in South Africa. The two sections both 1 and 2 of the old section 49 has been merged into a single section in the new section 49. The new section 49 kept
two criterions concerning the use of force, the two standards both different. Firstly, to prevent the suspected person from running away from arrest or use of force to avoid the act or resisting, it then requires sensibly proportional and needed force. A new innovation in section 49 by Criminal Procedure Act is the test of proportionality. It was not mentioned in the former section 49 of Criminal Procedure Act, although the test sensibleness was always there. Secondly, for the use of so much force, that is deadly force that is meant to cause grievous bodily harm or death, this law to section 49 needs the person that arrests suspects to have a reasonable reason as to why that circumstance allows the arrestor to act in prevention of crime or in personal defence.
In the new section 49, denial of a one’s life by an arrester may be defensible under the private or personal defence. A person would expect that a law implementation official who is threatened or attacked when executing their duties to be rendered the freedom to keep away attacks to secure the lives of others and his own life, this is when it concerns the physical safety and the basic right of life (Asworth,1995). The suspect or attacker loses his or her right to bodily integrity and life when he or she attacks other people or attacks an arrestor. Our observation is that the proviso, organises justification of private defence, putting section 49 in the section of Bills concerning human rights and constitutions. Depending on the terms of the new section 49, the person accused or the suspect will mostly have to show evidence that is required the law. What is remarkable of these things needed is that the attack must be breaking the laws; must have either been imminent or must have just begun; the force that is or should be used must be used only against the law breaker; and it is a necessity to resort to force to prevent or stop the attack and it’s also means to prevent or stop attacks reasonably (Snyman, 1995). It should not be finally decided that the private defence common law is so organised by the new section 49 that we do not have the justification of law anymore. The right understanding of the new section 49 is that the South African Criminal Justice offers sets of ‘private defence’ laws that has to do with the SAPS defensible homicide case issues; ‘statutory private defence’ and ‘common law
private defence’. The probable existence of both the two defences in the territory of law implementation is designated Regulation of Gatherings Act 205. Section 9 states that : “No common law principles regarding self-defence, necessity and protection of property shall be affected by the provisions of this Act”. Although that section is not in the new section 49 of Criminal Procedure Act, what is seen in the appropriate structure of section 49 is that there is self-justification and common law that exists beside each other.
PREVENTION OF CRIME
Preventing crime can be a reason to depend on after using so much force or deadly force against the dead suspect (Criminal Procedure Act sections 49 (2b) and 49 (2c)). Prevention of Crime is a measure taken right before a delinquent act or a criminal has really happened for forestalling an act like that. The new section 49 refers so much to disciplinary prevention in a way that deadly force can be used prevent or avoid criminal acts. As it says in section 49, there should be confirmation that there is large risk that the person that is suspected might cause grievous bodily harm, future death or imminent if the suspected person’s arrest is being delayed.
FUNDAMENTAL HUMAN RIGHTS
It is hoped that the SAPS do not use the new section 49 to penalize even when the offence is very serious. Though these provisos are unfortunately used and abused, it is a characteristic in the carrying out of laws that makes the use of force mandatory by the law implementation agencies. Likelihood of that happening in South Africa doesn’t seem strong, that is, with regard to section 49 (2). Furthermore, there are other measures that ask for the enjoining of SAPS, measures that are outside the necessities of section 49. In Section 13 (1) of the South African Police Service Act orders the SAPS members, with concern to the fundamental human rights of a person and also subject to the constitution, to carry out functions and duties as they are, by law assigned or discussed up on him or her. When the arrestor resorts to use force when they are on their duties, they are to use reasonable and minimum and force (SAPS Acts 13 (3b)). As discussed in this essay, the SAPS had given out interior directions to the members to abide by on the use of
force in carrying out arrest.
Definitely, the possible legitimate debates and that can be brought up by the use of the new section 49. Trigger-happy and Unprincipled law application officials may exceed the use of deadly force that is permitted. However, it shouldn’t be forgotten that the new section 49 stands for the change of phase in the South African Criminal Justice System as far as the case of the use of force by the South African Police Service is concerned. This new section has moved South Africa further to be equal with the change of attitude of the use of force lawfully implementing agencies and world development. It is now mandatory that SAPS respect the Constitutional human rights of people and also respect their rights to equality, justice and liberty. In summary, the new section 49 is composed to permit constitutional surveillance.
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