The Centre for the Study of Violence and Reconciliation (CSVR) on Tuesday welcomed the Constitutional Court’s ruling that it is unconstitutional to use lethal force to stop people fleeing, except in exceptional circumstances.
”Today’s Constitutional Court judgment… is an important and historic judgment, which represents the final demise of a brutal apartheid era law. The judgment means that for the first time since April 1994, South Africans at last have clarity on the law regarding the use of lethal force for purposes of arrest”, the CSVR said in a statement.
”In anticipation of possible concern it should be emphasised that the judgment, which essentially deals with the shooting of fleeing persons, does not have any impact on the right to self defence, and does not mean that members of the police service or of the public will now be at the mercy of violent criminals,” the CSVR said in a statement.
Section 49 the Criminal Procedure Act governs the use of force to carry out an arrest, and Sub-section two permitted deadly force in certain circumstances. This Sub-section was relied on as a defence by Mr EJ Walters and his son who were charged with murder in the Umtata High Court for having shot a man fleeing from their bakery one night.
The prosecution responded that according to a re-interpretation of Sub-section one by the Supreme Court of Appeal (SCA), the shooting was not authorised. The State also challenged the section’s constitutionality.
The trial judge disagreed with the SCA decision, held that he was not bound to follow it, and upheld the constitutional challenge to the extent that it relates to a fleeing suspect. He then adjourned the case pending confirmation by the Constitutional Court.
Walters and the prosecution took no part in the proceedings before the Constitutional Court. The Minister of Justice submitted argument that Sub-section two was unconstitutionally wide and argued that a replacement adopted by Parliament but not yet put into operation should be used.
Judge Johann Kriegler’s judgment, which was unanimously concurred with, said it was unconstitutional to use force, including the use of a firearm, to arrest anyone lawfully because this encroached on the rights to life, human dignity and bodily integrity guaranteed in the Bill of Rights.
His judgment examined the balance between these basic human rights and the interests of an effective criminal justice system. Regarding the use of a firearm, Kriegler’s judgment endorsed the SCA’s conclusion that the section must be interpreted as generally excluding the use of a firearm unless the suspect posed an immediate threat of serious bodily harm to the arrester or someone else. Lethal force could also be used if the suspect was reasonably suspected of having committed a serious crime involving or threatening such harm.
The judgment also concluded that the trial judge did not have the power to differ from the SCA on a question of constitutional interpretation.
The CSVR said the judgment provided a legal framework for humane, professional and effective policing and should be welcomed by all members of the police service, and all South Africans, who wished for policing in South Africa to be based on these standards.
”The protection of human life should be core to the role and responsibility of the police. Providing a clear framework of values to the police is crucial to building policing in South African which is based on principles of integrity and professionalism and which is free from corruption.” – Sapa