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After a prolonged delay the amendment to Section 49 of the Criminal Procedure Act, the law regulating the use of lethal force for arrest, was brought into operation on 18 July, almost 5 years after being passed by Parliament in October 1998.

Considering that many have mistakenly assumed that the law denies people the right to self defence it is perhaps most important to note that the Amendment does nothing of the sort.

The Amendment indicates that deadly force may be used if an 'arrestor believes on reasonable grounds'

(a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;
(b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or
(c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.

There is therefore no question about the fact that people are justified in using lethal force in self-defence. While the law does not intrude on the right to self-defence there is a legitimate concern that the provision is vague and difficult to interpret.

What is confusing about the law is under what circumstances people may use lethal force where it is not immediately necessary to protect oneself or another person. In the wording of the Amendment the answer to this question is

  • 'where the force is immediately necessary for the purposes of protecting (a) person from imminent or future death or grievous bodily harm; or
  • where there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed.

There are a number of possible objections to the wording of the legislation but essentially these revolve around a question of how to interpret the words relating to 'future' harm.

There are two ways of doing this. One way is to say that the test in the 1998 Amendment is essentially the same as that put forward by the Supreme Court of Appeal in 2001 in the Govender case and confirmed by the Constitutional Court last year in Walters. In terms of this approach, where a person has committed an offence involving the use or threat of serious violence, it will be legitimate to shoot them if there is no other way to prevent their flight.

The motivation provided for the use of lethal force in these judgments is the danger which the fleeing person may pose to other people if allowed to escape. But the judgments also state that a person who is reasonably believed to have committed a crime involving the infliction or threat of serious bodily harm, may reasonably be believed to pose such a danger. By contrast with the Amendment the judgments go beyond a statement of the principle of 'future danger' to provide a concrete test as to when an individual may be seen to pose such a danger.

The alternative way of interpreting the provision is that, where a person who is known to have committed an offence involving serious violence is fleeing, it will only be legitimate to shoot at them where, in addition to ones' reasonable belief that they have committed a serious violent offence, one also has justification for believing that they will commit similar offences in the future. The question is then what constitutes a reasonable basis for believing that someone will commit similar acts of violence in future?

To take the example of a fleeing vehicle hijacker. This is an offence involving 'the infliction or threatened infliction of serious bodily harm'. In terms of the Govender and Walters judgments this clearly qualifies as a case where the use of lethal force would be justified to prevent the flight of the suspect if there is no other means of apprehension.

However can one automatically regard a fleeing vehicle hijacker as someone who poses a risk of 'future death or grievous bodily harm' or must one have additional reasons for believing that the person is likely to commit a similar offence in the future?

The question may only be answered after the courts have given judgment in several cases on the issue which presents a difficulty for police leadership in telling police what is clearly permissible under the legislation.

It is therefore not clear whether the law conforms directly to the standard which has been put forward by the Constitutional Court in which case the law represents the minimum standard necessary for it to be Constitutional or whether the law is more restrictive than this.

In effect parliament may have raised the bar even higher than the high standards set by the Constitution so that the law is not merely Constitutional but in fact narrower.

This is not necessarily a bad thing as we are dealing with the taking of human life, but it would be good if we could at least be clear what the law says.

The delay in implementing the law has therefore only served to prolong confusion as to its meaning, rather than having achieved anything by way of greater clarity.

Is it not reasonable to ask that the proponents of the legislation answer questions about the precise meaning of the law? Or is it only the police who must put themselves on the line in relation to 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.
In Business Day, 17 September 2003, under the title: Clarity needed on use of lethal force.

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