You got it wrong, Mr President

President Jacob Zuma’s statements this week to senior police leaders, on the legal position regarding the use of lethal force by police officers, compounded the “confusion” about aspects of the law and showed that he is “misinformed”, says a leading crime researcher.

Zuma is reported to have told senior police members at a gathering in Pretoria: “If you take a gun out to me, that intent is more than clear. The next thing the criminal is going to [do is] shoot at me. That intent is very clear — police must then act to protect themselves and the innocents.”

He reportedly added that police are required to fire warning shots or aim for certain parts of the body, while criminals did not take an “oath” to fire warning shots before engaging the police.

But David Bruce, a researcher at the Centre for the Study of Violence and Reconciliation, told the Mail & Guardian that Zuma was “incorrect” in claiming police are required to fire a warning shot at someone who is about to shoot at them.

“It is also not correct that police can shoot only when someone has already shot at them, or that they are supposed to fire at a person’s legs or hands. None of this is true,” he said.

Bruce gave expert testimony in the Constitutional Court’s Walters case, which dealt with section 49 of the Criminal Procedure Act.

In that case, which laid down standards for the lawful use of force, Bruce testified that increased use of violence by the police leads only to counter-violence by criminals.

Bruce said police advisers were working on an amendment along the lines of the Walters Constitutional Court judgment.

He added that under the common law, all South Africans, including the police, are entitled to defend themselves when their lives, or the lives of those around them, are in danger.

“There is no requirement in the common law or any legislation that a person must wait to be fired at before they may defend themselves, or that they must fire a warning shot at someone who is about to attack them with a lethal weapon,” said Bruce. He said this position was supported by the Criminal Procedure Act, which permits the use of deadly force “on reasonable grounds” for the purpose of “protecting the arrester” or “any other person from imminent or future death”.

“When police use firearms against an individual it may be assumed that they are using lethal force—that is, force which may potentially result in death,” said Bruce.

He said officers are trained to kill and are told where to aim.

“Firearm training for the police emphasises hitting the target’s ‘centre of mass’—in other words, going for the kill—to eliminate a potentially lethal threat. The reason is that situations involving the use of lethal force are often life-and-death situations,” Bruce said.

Zuma’s statements this week were viewed as support for the mooted amendment to section 49.

But the M&G can reveal that in July 2000, while he was acting president, he delayed the implementation of a revamped section 49 after the Supreme Court of Appeal declared part of the law constitutionally invalid.

Zuma asked for implementation to be delayed so police could be trained about the new legislation.

The section was eventually substituted in July 2003 and became operational the same year. Soon afterwards, the police issued their own set of regulations on the use of deadly force, now aligned with the amended section.

Minister of Police Nathi Mthethwa, who, like Zuma, has decried the rights accorded suspects under the Constitution, has announced that an amendment giving police more powers would be put to Parliament by year-end.

Police legal advisers urged the amendment of section 49, Bruce said, to clarify the legal position on the use of deadly force after it became apparent that police members were confused.

“What is of concern is that senior politicians appear to be mis­informed about the current legal situation or about what the amendment of section 49 entails.

“Several of the statements which they have made are likely to add to confusion about the legal obligations of police in situations where they face threats to their own lives or are intervening to protect the lives of others,” Bruce said.

It is obviously not helpful, he added, to create confusion in police ranks about these issues.


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