Take the following scenario. One night a police vehicle patrol arrives at the scene of a hijacking in progress. The owner is still in the vehicle. On seeing the police the driver of the hijacker's back-up car drives off, leaving one of the hijackers at the scene.
The hijacker, gun in hand, flees into thickly wooded veld that is not accessible to a vehicle. The police consider running after him but realise that they will not catch him. A sergeant draws her firearm and shouts: "Stop now or I'll shoot."
Should a police officer be authorised by law to shoot at (and possibly kill) the fleeing man to prevent his escape? The police have witnessed the end of the attempted hijacking and have little reason to doubt their identification of the fleeing person as one of the hijackers.
But beyond this they know nothing about him. They therefore cannot reasonably hope to trace him and bring him to justice. For the moment it appears that his sole objective is to evade apprehension and he is unlikely to harm anyone in the immediate future.
Though the police may surmise that he is likely to engage in crimes like this again, they cannot claim to know this for a fact.
No one has been physically harmed in this incident, but the fact that he has engaged in at least one hijacking using a gun would suggest that he might kill or gravely injure someone in the future. But he may be a rookie hijacker out on his first hijacking. Frightened by the police's disruption of his first foray into big-time violent crime, he may decide that he has no stomach for it, try to break from his criminal friends and lead a crime-free life.
One would hope that the sergeant is reluctant to take human life and sees it as her duty to uphold the law. If she does, the problem she faces is a serious one: the law is ambiguous on whether she is authorised to shoot at this fleeing man. If she asks a legal adviser whether Section 49 of the Criminal Procedure Act authorises her to use lethal force against a fleeing person whom the police have witnessed involved in a violent crime with a firearm, all that can be said to her is that we do not know.
What Section 49 appears to say is that "an arrestor" (police or civilian) may use lethal force in this type of situation if he or she has reasonable grounds for believing that there is a substantial risk that the fleeing person will cause death or grievous bodily harm to some person in
Whether the scenario outlined falls under this "future danger" provision is far from clear. You or I may think that it does or does not, but that is immaterial. Whether the police are authorised to shoot in these circumstances can be clarified only once a police officer involved in shooting in these circumstances has been brought to court, charged perhaps with murder. Only after his or her case has been heard both by the high court and Supreme Court of Appeal (SCA), and they have each given judgment, would we be able to say whether the law authorises such use of lethal force.
Both the SCA and Constitutional Court have given judgment on the constitutional standard that should determine whether lethal force may be used against a fleeing suspect. In its May 2002 judgment in S v Walters the Constitutional Court confirmed an earlier SCA finding that such force would be authorised if the fleeing person "is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later".
In terms of these judgments the answer to our question would appear to be relatively straightforward. Any crime involving use of a weapon such as a gun or knife would appear to involve "the infliction or threatened infliction of serious bodily harm". If there are no other means of carrying out the arrest, then — our highest courts have said — the police would be authorised to use lethal force against a person suspected of a crime of this kind.
But, depending on what the courts consider to be a suitable manner for evaluating a person's likely future dangerousness, the current Section 49, which came into effect in July 2003 well after the Walters judgment, is not necessarily the same. Police officers relying on Section 49 to defend themselves against a charge of murder would not know how the court would interpret the "future danger" principle.
A permissive or broad interpretation by the courts might read the principle in a manner largely consistent with the Walters judgment, thereby confirming the legality of the use of lethal force in the scenario outlined above. But the court might equally decide that the "future danger" provisions are intended to have a specific meaning — that it is not merely enough that the suspect has already committed a violent crime but that the police have to have additional grounds for believing that he will do so again in the future.
The simple reason the current Section 49 has to go is therefore because it is hopelessly vague. It is badly formulated, so that there is little reason to believe that any two people will be able to agree on what it is saying. But even if the weaknesses of formulation were addressed, the principle it embodies is essentially speculative. It requires the police to engage in guesswork about a person's likely future conduct and then, if they decide to use lethal force, to throw themselves on the mercy of the courts.
It is unfortunate that the current Section 49 is unworkable, because it embodies high principles that should ideally prevail in our society in relation to the use of lethal force. In a country where there is little consistency in the standards applied in the selection, training or supervision of police, it is hardly reassuring that the police have any power to use lethal force at all. Amending the law on the use of lethal force will also not necessarily make the police safer.
But our high levels of violent crime appear to require that the police be authorised to use lethal force against some of the people who flee from them. And if they are to have such authority, then it is necessary that the law provide them with clarity on when it may be exercised.
David Bruce is a senior researcher at the Centre for the Study of Violence and Reconciliation.
Originally published in the Mail & Guardian.