By Christelle Terreblanche
Legal and crime experts have expressed concern over the wording of a draft amendment to the law that could potentially result in making it easier for the police to use lethal force against suspects perceived to be resisting arrest.
They believe that proposed amendments to the Criminal Procedure Act – aimed at clarifying when the police may use "deadly force" in apprehending a suspect – misses the mark and may therefore be unconstitutional.
The draft legislation has been published for comment and is due to be considered by the cabinet "soon".
It comes in the wake of last year's outcry over the fatal shooting by police of several innocent people, including a three-year-old, which followed tough talk by National Police Commissioner Bheki Cele and speculation that the police had adopted a "shoot-to-kill" policy, which the Police Ministry has denied.
Section 49 gives officers the right to use lethal force if their lives or those of citizens are in danger, but does not clarify how to judge whether suspects pose a future threat of violence if not arrested immediately.
Police Minister Nathi Mthethwa, his deputy Fikile Mbalula and Cele have all suggested that, as it stands, it places too heavy a discretionary burden on the police on when to shoot.
The proposed amendments to section 49 of the act seek to define what "deadly force" means and the criteria for when it may be used by police, other than in self-defence.
David Bruce, a senior researcher at the Centre for the Study of Violence and Reconciliation, said the amendments did not minimise the chance of errors.
The Constitutional Court in 2002 declared section 49 unconstitutional because it found that shooting a suspect was "not permitted unless the suspect poses a threat of violence… or is suspected on reasonable grounds of having committed a crime" in which violence was used, and where there was no other way of the arrest being carried out.
Bruce said a rewrite of the draft bill would be necessary to lay down clear guidelines and outline that a police officer's decision to shoot should be based on "direct knowledge or other clearly defined grounds", rather than suspicion.
Constitutional law expert Professor Pierre de Vos, writing in his blog Constitutionally Speaking, said the amendments merely opened the way for officers to "shoot first and ask questions later".
"The constitution requires officers to decide in each case what degree of force is reasonable and necessary to effect an arrest," said De Vos. "The proposed amendments want to do away with the necessity for (this)."
However, Johann Burger, a criminologist at the Institute for Security Studies, said the new wording did clarify some ambiguities in the act.
Barbara Holtmann, of the Council for Scientific and Industrial Research, said it was important to consider the context for the amendments.
"Unlike in most civilised societies, our criminals don't think twice about shooting the police," she said.