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In a country whose Constitution protects the right to life it would appear reasonable that the law should deal in clear terms with the taking of such life.

Yesterday (Wednesday 21 May 2003) marked a year since the Constitutional Court gave judgement in S v Walters, thereby clarifying the implications of the Constitution for the legal framework on the use of lethal force in effecting arrest.

Despite this, the law on the use of lethal force remains uncertain. The core cause of the lack of clarity is the delay caused by disagreements between the SAPS and others regarding the amendment of Section 49 of the Criminal Procedure Act which was to have been introduced in terms of the Judicial Matters Second Amendment Act of November 1998.

Section 49 is the legal provision regulating the use of force, and of lethal force, for purposes of arrest. In the Walters judgment the Constitutional Court struck down the highly controversial Section 49(2) which remained in force as the 1998 amendment had not (as it still has not), been brought into operation by government.

All that needs to happen for the 1998 amendment to be implemented is for President Thabo Mbeki to announce a date for this to happen. However because of SAPS objections this has not been done.

Linked to the delay there is currently widespread confusion in the ranks of police regarding the law on the use of lethal force. This is aggravated by what is effectively a moratorium on implementing proper police training on the issue until the law is clarified.

This confusion is likely to be linked both to unjustified uses of force by police relying on outdated legal provisions as well as to inappropriate restraint by police in situations where police should intervene or carry out arrests. Uncertainty may also put police lives at risk though none of the legal developments actually impact on the right to use force in self-defence.

In the Walters judgement the Constitutional Court implicitly censured government regarding the delay in implementing the legislation. The court said that the power conferred on the President to define when legislation is to be implemented can not be used 'to veto or otherwise block' legislation and that 'resolution of the objections to' the amendment are 'the exclusive prerogative of Parliament'.

In terms of the principle of separation of powers, therefore, it appears quite simple that the 1998 amendment is an expression of the will of parliament and that it should immediately be brought into operation.

The key SAPS objections to the 1998 amendment are that it is vague and difficult to interpret. Since the Walters judgment they have also argued that the amendment is unnecessarily restrictive as it sets narrower limits on the use of lethal force than those which are set by the judgment, and thus by the Constitution.

While the SAPS must submit to the will of Parliament it is difficult not to have some sympathy with SAPS concerns regarding the vagueness of the 1998 provision.

The amendment effectively provides that, in addition to situations of private defence (commonly though slightly misleadingly referred to as 'self defence) the use of lethal force is also justified against a fleeing 'suspect' who is reasonably believed to pose a risk of 'future death or grievous bodily harm'.

This highly speculative legal principle resembles that in Canadian legislation though the South African provision is more clumsily formulated. While it has an international precedent, it appears fair to argue that this principle is inadequate in terms of South African realities where the need to use lethal force is far more significant in policing.

Rather than providing clarity the vagueness of the principle put forward by the amendment will perpetuate the existing confusion over the extended period of time that it takes for the courts to clarify its meaning through case law. In the interim, police will face a choice of shirking their responsibilities or possibly standing trial for murder, not because of deliberate malfeasance on their part but because of the vagueness of the law.

In South Africa the power to use lethal force for arrest is also available to civilians so the issue at stake is of the overall level of clarity which is provided by the law in relation to a power to kill which is widely held.

In terms of the principle of separation of powers this is clearly an issue which parliament must resolve, though the realities of how South Africa is governed make it likely that this will be done in consultation with government. For all concerned there are two relatively simple choices: either to bring the 1998 Amendment into operation or to pass new legislation to replace this.

Whatever the approach what is most obvious is that the issue must be addressed urgently. Even if the choice is to be the longer route of further revising the legislation, the issues at stake are not of such complexity that they should justify any significant delay.

David Bruce is a Senior Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
In Business Day, 22 May 2003.
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