As might have been predicted there has been a high level of controversy around last week's Constitutional Court judgment, dealing with the use of lethal force in effecting arrest, in the case of s v Walter's.
In the judgment the court struck down Section 49(2) of the Criminal Procedure Act, a legal provision created by the apartheid government to give the police maximum freedom to kill people, whilst disguised as operating under the rule of law.
Perhaps understandably there has been widespread concern that the ruling will undermine people's safety. As a result of the high levels of crime many people feel very vulnerable, and are afraid that as a result of the judgment they will have less protection.
But what has emerged from last week's court judgment is a solid legal framework the merits of which are recognized by international police leaders and which in no way undermines the physical safety of the police or the public.
When the same legal standard was adopted by the United States Supreme Court in 1985 the court judgment was supported by fourteen American police agencies. In the period since then it has been widely recognized in the US that the introduction of this standard has not undermined police safety or effectiveness.
Importantly in a democracy police need to uphold standards of this nature if they are to have any chance of winning respect and credibility from the public.
The Constitutional Court judgment has clarified that under South African law a person carrying out an arrest may use the force which is reasonably necessary to overcome resistance to the arrest or to prevent the person concerned from fleeing.
However, while the person carrying out the arrest may use force, they may only shoot a firearm or similar weapon if they have reasonable grounds for believing either (1) that the suspect poses an immediate threat of serious bodily harm to them, or a threat of harm to members of the public; or (2) that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm.'
The difference between 'force' and 'lethal force' (i.e. a firearm or other weapon which is likely to cause fatal injury) is therefore crucial to understanding the present legal situation. The Walters' judgment impacts only on the use of lethal force.
Ordinarily in carrying out arrests the police do not need to fire their weapons. In most arrests, people submit without violent resistance or the police are able to subdue them without shooting.
In all situations where they are involved in carrying out arrests the police are entitled to use the force necessary to overcome resistance except that firearms may only be used where there is a direct and serious threat to a person's physical safety or where the person being arrested is reasonably believed to be someone who has committed a crime involving the use or threat of serious physical harm, where there is no other way of apprehending them.
The firing of a gun is the most extreme measure which is available to the police and its use can only be justified in extreme circumstances. The courts in South Africa have recognised the major dangers which people in South Africa face. They have provided the police, and ordinary people, with a legal framework which authorises the use of these extreme measures in situations where people need to protect themselves or others, as well as for the purpose of apprehending people believed to have engaged in acts which pose a serious danger to people's physical safety.
This is obviously not to say that people can use the protection of the law to use firearms recklessly. All people who are armed with firearms need to be willing to be held fully responsible for their use, and to account for the use of these weapons in terms of the law.
What has also been clarified by the Constitutional Court judgment is that, where suspected criminals have not inflicted or threatened serious physical harm, it is justifiable to use force, but not lethal force, to apprehend them. Therefore you may not shoot at people who are suspected of property crimes, that did not involve the use or threat of violence, in order to prevent them from fleeing.
The police will have to rely on other methods available to them to apprehend these people. Notably they will need to develop new approaches to vehicle pursuits in cases of car theft and other property crimes. These problems will have to be engaged with through police training and creative thinking in the police service.
There is of course no guarantee that people who are suspected of involvement in non-violent property crimes are not armed and do not pose a danger to the people pursuing them. In recent years there has fortunately been an increased focus on police safety in South Africa. Whether the persons being pursued are suspected of violence or not, it is always necessary to observe safety procedures in a pursuit situation. But the chance that a person may pose a danger to the police cannot be used as a justification for shooting, and possibly killing them, unless there is direct evidence that the person poses such a danger.
While the Constitutional Court judgment has provided greater clarity in the South African legal situation, there is however one problem in understanding the current legal framework relating to the use of lethal force in South Africa. In 1998 Parliament also passed an amendment to Section 49. However the implementation of the amendment has been stopped by government.
The failure by government to observe the will of parliament, which the Constitutional Court has drawn attention to, is cause for concern. But the police and others have also expressed concerns about difficulties of interpreting the 1998 legislation. Parliament and government urgently need to resolve the confusion relating to the 1998 amendment in order for there to be full legal clarity in South Africa regarding the use of lethal force.
David Bruce is a Senior Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
Originally published in The Sowetan, 28 May 2002.
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.