The wave of violent criminal activity that has engulfed South Africa in recent years has posed major problems for the courts. The Constitution promotes the foundational values of freedom, equality and dignity. Criminals do not respect such values. Hence the public demands that strict justice should be meted out to such people. “Crime control at all costs” is the understandable public war cry.
The Constitution promotes a different model of criminal justice, one of due process, where the foundational values must also be applied to criminals when they are dealt with by the criminal justice system.
The competing claims of due process and crime control were brought into sharp relief by a recent case that came before the Constitutional Court. Mr Walters and his son were charged with murder for having shot a suspect fleeing from their bakery. The accused relied on Section 49(2) of the Criminal Procedure Act, which provides that where a person authorised to arrest a person reasonably suspected of having committing a Schedule I offence (which apart from murder, rape and kidnapping includes robbery, theft and fraud), cannot arrest the suspect or prevent him or her from fleeing by other means than by killing the suspect, such killing shall be deemed to be justifiable homicide.
The state challenged the constitutional validity of the provision. The trial judge agreed with the state and the matter proceeded for confirmation to the Constitutional Court. Judge Johann Kriegler, writing for a unanimous court, proceeded to examine the whole of Section 49.
Section 49(1) authorises the use of force when a suspect resists or flees from an attempted arrest. This provision was recently examined by the Supreme Court of Appeal in Govender v The Minister of Safety and Security. Judge Kriegler endorsed the approach adopted by that court, namely that the powers granted to an arresting officer in terms of the section must be restrictively interpreted so that deadly force can only be employed where a suspect poses an immediate threat of serious bodily harm to the arresting officer or a third party, or where the person is reasonably suspected of having committed a serious crime involving or threatening such serious physical harm.
However, Section 49(2), which effectively immunises a person who kills a suspect from a conviction, was declared to be so wide in scope as to be unconstitutional.
The wide scope of the section is illustrated by the following example: a person flees arrest as a shoplifter and is shot dead. The person who fired the shot can be immunised from a conviction. Can it really be suggested that a shoplifter should be killed with impunity? Hence Section 49(2) is too wide in scope to pass constitutional muster.
It is important to emphasise what the Constitutional Court has held. It has not held that the police cannot employ force to effect an arrest. Thus a police officer can employ the use of a firearm where the suspect poses a threat of violence to the arrester or others, or is suspected on reasonable grounds of having committed a crime involving the infliction of serious bodily harm and there are no other reasonable measures of effecting the arrest, whether at that time or later.
The court has held that a blanket immunity against being charged with murder when the suspect may have been only a petty thief is too wide an immunity to accommodate the balance between crime control and due regard for the life and dignity of the criminal. Thus the section is invalid.
The judgement has two essential implications. The police will have to be careful before using their firearms. The test laid down by the Constitutional Court does make the operational decision by the police officer on the beat far more onerous, a burden that reflects both the demand of our Constitution to make the public service more accountable and our history, in which police used deadly force almost at random, particularly when defenceless blacks were concerned.
The second implication is that the applicable law, particularly Section 49(2), can be reformulated by Parliament. Since 1998 the government has been in a state of slumber concerning a new law dealing with this issue, passed in October of that year.
If the law-and-order lobby is concerned with the effect of the Walters judgement, it should not blame the court — but rather Rip van Winkel in the Ministry of Safety and Security.