Constitutional Hill

Be afraid, be very afraid

So, imagine you are driving home late at night in your BMW. You hear a screeching of tyres and see two overweight men pointing their guns at your head. You panic and – as if you are now sitting behind the wheel of one of those malfunctioning Toyota’s – your car accelerates. Bam! Bam! In two minutes you are as dead as Brett Kebble – but not from “assisted suicide”.

The police who shot and killed you will never be prosecuted – at least not if the new Draft Bill aimed at amending section 49(2) of the Criminal Procedure Act is passed by Parliament. The police officers in their unmarked car will say that your BMW (or one that looks just like yours) was used as getaway car in an armed robbery and they were trying to arrest you – and that will be the end of the matter. Your wife, husband,  or children will have to learn to live without you – albeit in fear of also being shot and killed by the police at a later stage.

So much for your right to life and bodily integrity and the right (so often invoked by President Jacob Zuma) to be presumed innocent until proven guilty. Those rights are obviously reserved for politicians driving in blue light convoys, with their thuggish bodyguards carrying black bags to hood enemies of the state. According to the Minister of Police, ordinary citizens do not enjoy those rights because, who knows, they might just be criminals.

The Draft Bill contains two important proposed changes which will make it far easier for the police to shoot and kill people without having to think too hard about whether this is reasonable or necessary.

First, the prosed amendments to section 49(2)(a) would allow the police to kill a suspect in order to protect themselves or the public from serious bodily harm – even when it might not have been immediately necessary to do so. In other words, as long it would have been necessary at some point before or during the arrest to kill the suspect to protect anyone from serious bodily harm, the killing would be lawful.

The police would also be able to kill a suspect not only when it is necessary to protect someone’s life or to protect someone from grievous bodily harm, but now also when it would have been necessary to protect someone from “serious bodily harm”. However, it is not clear what the difference between “grievous bodily harm” and “serious bodily harm” might be (except perhaps that the former is more difficult to spell and pronounce).

Second, the amendment to section 49(2)(b) would also allow the police to kill anyone who is reasonably suspected of having committed a crime involving the possibility of seriously harming anyone if they believe there was no other way of arresting the suspect “at that time or later”. So, if a police officer has reason to believe you have been involved in a serious assault on anyone, or you have been involved in an armed robbery and there are no other reasonable means to arrest you on the spot (as opposed to going to your house later and arresting you there), they can kill you right there, finish and klaar.

These amendments attempt to simplify the circumstances under which the police can shoot and kill suspects. They would also make it far easier for the police lawfully to kill suspects during an arrest. It tries to circumvent the problem of a lack of police training, by minimizing the requirement for  split-second decision-making by police officers making the arrest. Officers will not have to decide whether killing the suspect is immediately necessary and will also not have to decide whether there is a substantial risk that the suspect would cause imminent serious harm to anyone.

As long as the suspect was reasonably suspected of having committed a crime involving the threatening of serious bodily harm and as long as it was necessary to kill the suspect in order to effect the arrest of the suspect on the spots (say, because the suspect decides not to stop when ordered to do so), the police can shoot first and ask questions later.

The amendments are not only illogical but clearly also unconstitutional. Maybe I am missing something, but it does not seem logical for the law to state that the police can kill a suspect “if there are no other reasonable means of carrying out the arrest”. If they have killed the suspect, they would not be able to arrest him or her as one cannot arrest a dead person. The proposed amendments to section 49(2)(b) must therefore be read to mean that the police need not worry about whether it would be possible to arrest certain suspect at a later date. They would be able to kill the suspect on the spot if it would not be possible to arrest him or her right there and then.

Scary stuff.

The amendments are most probably also unconstitutional. As I have explained before, in the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless 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 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.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The proposed amendments would not require the police officer to take into account “all the circumstances” before deciding whether it would be reasonable and necessary to shoot and even kill a suspect. However, this is exactly what the Constitution requires. The amendments would tilt the scales in favor of extra-judicial police killings (a bit like the Vlakplaas hit squads but this time sanctioned by law) and will not pass constitutional muster.

The drafters of the Bill obviously failed to distinguish between cases where it would be permissible to shoot and injure a suspect in order to effect an arrest and cases where it would be permissible to shoot and kill that suspect. The Constitutional Court has made it clear that the latter would only be lawful in limited circumstances and that only the least degree of force to carry out the arrest  would be allowed.

By repeating the wording of point (h) above out of context, the drafters probably thought that the amendments would pass constitutional muster. But they failed to take into account the rest of Kriegler’s summary and have not realized that it does not give the police a blank cheque to shoot and kill suspects merely because they are reasonably suspected of committing a crime that threatened serious bodily injury.

The Constitution requires police officers to decide in each case what degree of force is reasonable and necessary to effect an arrest. The proposed amendments wants to do away with the necessity for officers to make this judgment call. This makes the amendments unconstitutional.

  • Chris

    I have no doubt that the proposed amendments are unconstitutional.

    The amendment to section 49(2)(b) would allow the police to kill anyone who is reasonably suspected of having committed a crime involving the possibility of seriously harming anyone if they believe there was no other way of arresting the suspect “at that time or later”. It would not be a case of lawfully causing a death in an attempt to arrest that person. It allows the police to excecute a suspect, because they are not in a position to arrest him “at that time or later”.

    Causing “serious bodily harm” has very little to do with the seriousness of the offence. For example, I discharge my (legal) firearm in a negligent way, and shoot myself in the foot. I have now committed a crime involving the possibility of seriously harming anyone. The police can shoot and kill me, not in order to arrest me, but because they are unable to arrest me. Or I want to shoot someone in the back with my kettie. Common assault. But just as I shot, he turned and bend down and I hit him in the eye. I had no intent to cause any serious injury, but he sustained a serious injury. I’m guilty of common assault, and the police can shoot and kill me if they can’t arrest me!

    I can hardly believe that the drafters could think that the amendments would pass constitutional muster.

  • Snowman

    Perhaps it is because the government regard us the citizens and not the criminals as the real enemy?

  • sirjay jonson

    Snowman: you have a point, and it’s well exhibited by the arrest of the jogger, and those who protest, also the subsequent bag on the jogger’s head, illegal search, unconstitutional treatment, let alone all else which is happening in this country, equally representative of the accelerating decay.

    Ahh Prof: what a mess we are in. But you do realize, I’m sure, in your quieter, contemplative moments, free of the angst of the moment, it is only the judiciary and the law which can change things, but only if they who represent the law have the courage to say ‘no!, draw the line in the sand, insist on the support of the law and its bounty as legislated. Will they? Won’t they? Are you all wimps? Do you not ultimately grasp the seriousness of what is unfolding?

    Will you put your life and security on the line to prevent this abhorrent unfoldment we witness?

    Its up to you mate, you and others of the vital principles you teach; if they, your students can’t find the guts to oppose that which opposes true freedom and those who oppose the Constitution and Lady Justice, well, what can one say? ‘Just deserts’ perhaps? Cowards’ reward? Law isn’t about living the good life, its about law.

    I’m tired of the whining: whether it is from those who support Constitutional law or not, act or not; if they who have the responsibility don’t resist from disciplined and strongly held principles, even though threatened with failure and fear of the ANC, as in professional loss and financial freedom, personal career and fear of being ostracized, we are lost. Either the law and the Constitution is enough, or it is not. Up to you South Africa’s legal reps. Lady Justice awaits you, while lying raped upon the soil of Africa, her face in the dust of infamy.

  • Henri
  • Henri

    And we’ve become “an organised kleptocracy” under ANC rule….
    See :–Britain-fawning-him.html

  • Handel
  • wrm

    Blatantly unconstitutional lawmaking, in the spirit of “let’s see what we can get away with” started with the Firearm Control Act, when Louis Kok said that he knew the Act was unconstitutional, but that public apathy would result in it passing.

    For example, the police can search any premises without a search warrant if they have a “reasonable” belief that there might be unlicenced firearms present. If they do find an unlicenced gun, the owner of the premises has to prove his innocence, otherwise it’s presumed he’s responsible. Doesn’t sound very in line with the Constitution to me.

    But because we’re talking about them ugly black he-man evil GUNS, modern enlightened peace-loving law professor types support the Gun Control Act.

    Thin end of the wedge, meneer.

  • Doug

    I think the key problem with s49 – both as it is and as it could be – is that it confuses the issue of ‘Arrest’ with that of ‘Self Defense’.

    As Prof. noted, arresting a dead person is illogical and as such killing a suspect during an arrest should, at least logically, never be the means by which that arrest can be made.

    However, and here is the problem of truly piss-poor police training, police officers seem completely unaware of point (i) in Kriegler’s judgment. Namely, you are always allowed to use the minimum necessary force to defend yourself or another innocent citizen, even if that minimum force (relatively speaking) results in the death of the suspect. So, in a scenario where an officer is attempting an arrest and the suspect’s actions place the life of the officer or any other member of the public in extreme danger – say by the suspect pulling out a firearm – and the minimum force necessary for the officer to protect his own or other lives is to shoot the suspect, then it is perfectly within the officer’s rights to do so. The variety of scenarios where this may occur are endless and as such the officer needs to be highly trained to be able to determine when he can use less than potentially lethal force and when he cannot, all in the space of a few seconds if that.

    What seems important to me is that these actions must not be confused with the actual enacting of the ‘arrest’. Such a situation as above would be a case of self-defense whilst enacting arrest and NOT the use of deadly force for the purposes of the arrest.

    Given that arrest is only to ensure the suspect appears before court, it is not conceptually compatible with the use of lethal force for the purposes of an arrest. Where the confusion comes in is that badly trained and poorly informed officers end up thinking that IF they can’t shoot someone for the purposes of arrest THEN they can’t defend themselves during an arrest either. This, despite being rubbish, is sadly the thoughts of many police.

    What needs to be done is to train police adequately to ensure that they understand the difference between ‘Arrest’ on one hand and ‘self-defense’ on the other and the fact that, as Kriegler points out, the former does not disallow the latter EVEN IF the situation in which the need for ‘self-defense’ arises is in fact the attempted enactment of an arrest. They are conceptually different events even if they occur simultaneously.

    Until the police on the ground realise this (i.o.w. until the Police start actually training their members properly) it is likely that legislation will be used to try and patch holes it could never actually fix.

    I only hope this amendment gets ‘shot down’ really fast.

  • spoiler

    An absolute disgrace is all I can say. We’re going to see more challenges and the CC again having to bring the executive back into line – if it ever gets through Parliament of course.

  • Snowman

    We are invited to make our submissions on the Bill to Comrade Adv Johnny de Lange on:

  • Anonymouse

    I do not agree that the Bill will not pass constitutional muster. In fact, it states more or less exactly what Kriegler J stated in Walters would pass constitutional scrutiny. Kriegler J wouldn’t have included paragraph (h) – as quoted by Prof De Vos – in his judgment if he did not mean exactly that what is said in that paragraph. In other words, it is not a question that the Constitutional Court will only uphold section 49(2) if it provides for killing in circumstances better known as private defence (self defence); it will also uphold such a provision if the crime that the resisting/fleeing person is suspected (on reasonable grounds) of having committed, is not only a ‘petty’ crime such as theft (remember the example of a kid that snatched a mealie), but if it is a crime that involved serious violence towards a human being, and if there is no other method of arresting the suspect (bringing the suspect to justice), whether at that time or later. The foreign case law that Kriegler J referred to, and most civilized systems of law, makes provision for justified use of force, including lethal force, in similar circumstances. In the balancing act where rights of suspects (and accused persons) are balanced against the rights of victims (and society) to justice, the CC actually said that it would find that such a balance exists in the circumstances mentioned in paragraph (h).

    The envisaged provision reads as follows:
    “(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force only if he or she believes on reasonable grounds–
    (a) that the force is necessary for the purposes of protecting the arrestor or any other person from imminent of future death or serious bodily harm;
    (b) that the suspect 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.”

    I do not agree that police officials who shoot and kill a person during arrest will summarily not be prosecuted, or that they will never be convicted of murder, as suggested by Prof de Vos, simply because they can now say that they believed that section 49(2) protected them from prosecution. The test is much more stringent. Even under the old section 49 regime, the test was stringent, and the courts evidenced a strict approach to demand that the person who alleges that he/she killed a person under the proviso of the law justifying the killing of resisting/fleeing suspects, bears the onus to prove that he/she was entitled to the protection of that proviso. The quoted (new) section 49(2) clearly shows that the test, for which the arrestor would surely bear the onus to prove that he/she complied with the legal requirements to escape punishment (or civil claim) for killing a fellow human being, is even more stringent than whjat it was under the old (unconstitutional) section 49. Under this provision, a police official that killed a person during arrest will have to prove, on a balance of probabilities,
    1.) That he/she was entitled (reasonable suspicion that the suspect had committed the target offence) to arrest the deceased to bring him/her to justice;
    2.) That the deceased knew (that it was clear) that an attempt is being made to legally arrest him/her;
    3.) That the deceased resisted arrest or fled;
    4.) That the arrestor was acting in private defence (of him-/herself or other people) – or –
    5.) That the crime that the deceased was sought for is a crime involving serious violence towards another person; and
    6.) That there was no other option but to use such lethal force in order to bring the suspect to justice. (It is however so that both Kriegler J and the drafters of the new envisaged section rather akwardly use the word “arrest” – because, like Prof De Vos states, a dead pesron cannot be arrested and brought before court.)

  • Sean

    The current Section 49 is not responsible for police officers losing their lives in the line of duty. Poor Training is. Sect.49 does not prevent officers from defending themselves. In most cases officers are killed because they do not have the skill and recourses to win against increasingly well armed criminals. This whole “shoot to kill” call is nothing more than a PR stunt by the ANC to cover and distract from the huge mess they have made of the SAPS.

    Furthermore we see the hypocracy from a government that will not punish properly convicted criminals with the Death Penalty while allowing poorly trained SAPS members to meet out death whenever they are too lazy to chase criminals. To top it all, civilians are disarmed and prevented from defending themselves from the initial attack that would allow a police officer to kill the suspect later, unfortunately after the civilian and his family is already dead.

  • Charlie Ruckin

    Big deal. I am still a lot more scared of criminals that the police:
    With 50 murders a day, I don’t mind the police shooting an occasional unlucky bystander (including myself) in the fight against crime.
    Lets see how many police killings there are – I will bet you there are very few in comparison to murders.
    Fighting hardened criminals without force is like fighting Malema with intellectual arguments.
    It is important to blame the criminals not the police when bystanders get hurt.

  • Michael Osborne

    @ Charlie Ruckin

    Your position reminds me of some of defenders of capital punishment in the US. They will acknowledge that, yes, some innocents will be executed. And there is some possibility that I will myself be the victim of a false conviction, and executed. But the chances of that happening are so much smaller than the chances of being murdered by a criminal that it is a risk worth taking.

    This is logical as far as it goes, but it is premised on the assumption that harsh law enforcement will, in fact, reduce criminality.

  • Chris

    Anonymouse says:
    March 4, 2010 at 14:11 pm

    Would it not be unconstitutional to place the onus on the arrestor in a criminal case?

  • Leigh

    Many of us are aware that the ANC does not boast a great many deep philosophers. But the assumption that encouraging trigger-happiness in cops will reduce the rate of crime takes ANC logic from misconceived to infantile. Implicit in this childish assumption that cops with quicker triggers will make a dent in crime is the idea that more forcible policing will inspire such fear in criminals that fewer people will tend to crime. Leaving aside the obvious point that there isn’t much in the way of proof for this assumption doing the rounds, another point is that this typically cack-handed ANC opinion is guilty of at least two oversights: one, it is silent on the motivations for crime. And is it not possible that the motivation for committing an offence could be at least as strong as any fear of cop-inflicted violence? Two, for harsher law enforcement to stand any chance at helping to reduce crime, the cops would have to intervene in the commissions of enough violent offences. In brief, before forcible policing can make a difference, cops have to respond to calls and get to the crimes on time – or at least find the criminals after the fact.

  • John Roberts

    I think most of these arguments are rather circular unless we have some answers to pertinent questions. Hopefully somebody can supply them :

    1. How many innocent bystanders were killed by police each year for say the last 10 years ? Is the trend upward or downward ? What were the circumstances ?

    2. How many policemen were brought to book for these killings ? Are there more or less policemen brought to justice each year ? What is the trend
    Unless we know the answers to these trends we can only guess as to the impact the change in law will have.

  • sirjay jonson

    Actually Michael: DNA evidence posthumously shows that 50% of those executed in the US are innocent. That’s unacceptable.

    Better a flogging regime while incarcerated, which I think would be much better. Cause the pain, do the pain.

    Apologies Prof for my right wing conservatism. And if innocent, it the pain passes, whereas life ended doesn’t, especially when its the state who has the power with all their corrupt and malicious intent. What a nice way to get rid of irritants.

    But not Democracy, and not equality under the law.

  • Mikhail Dworkin Fassbinder

    Leigh, I am suprised at your clam that the ANC does not include many deep philosophers in its ranks.

    May I remind you that Cmd Malema, while admittedly not a practiced epistemologist, is a fine dilialectician, with an acute understanding of the National Democratic Revolution (“NDR.)

    He started his struggle at eight.

  • Michael Osborne

    Sirjay, I would me interested to hear your source on the suggestion that DNA studies show 50% of US capital cases are innocent.

    I have followed the work of the The Innocence Project for a few years. I recall that they cite a study by Seton Hall’s D. Michael Risinger that puts the percentage of innocents in prison at 3 to 5 percent, for capital crimes.

    That is bad enough. But I would be astonished if posthumus studies show 50%.

  • Brett Nortje

    Sirjay, to many of us corporal punishment at school was a daily reality. Can’t say it did me any harm, and I would certainly like to see a referendum held and corporal punishment brought back to our schools. (Is it not strange that the ANC hjas held not one referendum?)

    Fact is, the thought that some of the contributors to this blog were on the receiving end of corporal punishment when they were at school is a delightdul one.

    You want to reintroduce judicial flogging. This country has a history of it. Who is going to be on the receiving end?

    Unrepresented, indigent accused who had little understanding of the alien procedure they were subjected to.

    Is that the way to build institutional legitimacy?

  • John Roberts

    The ANC does not need to hold referendums.
    They already speak for the people as their Marxist philosophies make them believe the people have abdicated their right to partcipatory government by proxy. In other words, once they have been voted in, there can be no discussion about anything as they already represent the will of the people. No matter what they decide on anthing it’s done under their belief that they are the people and therfore they will think for the nation. No discussions. The people had their chance to speak at the elections. They spoke. They will be allowed to speak again at the next election.

  • Maggs Naidu

    Leigh says:
    March 4, 2010 at 18:39 pm

    “In brief, before forcible policing can make a difference, cops have to respond to calls and get to the crimes on time – or at least find the criminals after the fact.”


    And for criminals to be successfully prosecuted.

    If I recall correctly, one of the arguments against the capital punishment was that the sentence is not a deterrent, rather the prospect of being caught and sentenced is (the prospect in our case is very slim).

  • Mikhail Dworkin Fassbinder

    John Roberts is right.

    ANC is far from perfect. But the fact remains that no party other than the ANC is capable of articulating the objective interests of our people. (If it got the chance, the DA would reinstate capitalism overnight!

    Despite what the liberals say, that does not mean we are not a democracy. There is vigorous debate WITHIN the party and with its alliance parties. (Just look at what happened at Polokwane. That was true democracy in action)

    Yes, corruption is a problem. But President Zuma has announced special MECHANISMS, REPORTING PROTOCOLS and ACCOUNTANCY MEASURES. These are already working to reduce corruption everywhere, (If you want more details on these initiatives, just as Maggs. He has the full story.)

  • Ehud Olmert

    Train the Dumb Bloody Bastards!!!

    shoot those that deserve to be shot!!!

    one bullet one boer!!

    its baggage ….

    Aluta Continua>>

  • wrm

    Ehud: Your host, Prof de Vos, pretty much qualifies as a boer in that context.

    Not good manners, being invited to someone’s home and then crapping on the dinner table. Which is the real life equivalent of what you’re doing electronically, here.

  • The Creator

    In this person’s unworthy and non-legal opinion, don’t let’s all get our knickers knotted too tight.

    This present government needs to be seen to be “fighting crime”. However, it lacks the will or the capacity to discipline its police force, and it lacks the money to develop a more effective police force. Moreover, some of its policies lead to public disturbances which bleed what effective police there are away from crime fighting into crowd control and riot suppression.

    What to do? Simple. Introduce a tough-sounding new law. That’s the cheapest, easiest way to “fight crime”. As opposed to fighting crime, of course. This is consistent with almost every other element of the Zuma administration, which is devoted to making promises which prove to be lies, to promoting policies which are not implemented, and to offering pious utterances at variance with the utterer’s personal lifestyle.

    My guess is that very little will arise out of this.

  • Ehud Olmert

    • wrm says:
    March 5, 2010 at 9:15 am
    Ehud: Your host, Prof de Vos, pretty much qualifies as a boer in that context.
    Not good manners, being invited to someone’s home and then crapping on the dinner table. Which is the real life equivalent of what you’re doing electronically, here.


    Was not aware that the Prof was from the “proletariat” apologies…On “merit” no doubt? Read more: critically: as the Prof suggests elsewhere>>

    And My proverbial defecation on the personified dinner table is not by invitation, but by choice necessitated by my insatiable appetite for the inconsequential “non-legal” rambles of those who rose amidst a sewer education either at Leipzig or UWC?

    “baggage” was minus the “?” ….. happily minus tho>>>

    clearly shows the=

    “the worthy , legal opinions” of those who choose to see difference as discourse “pardon pun” at the dinner table???????????? let me not forget The Illicit punctuation or my degree may be seen as “communist driven defecation” shall shudder to differ for fear of reprisals wrt “merit”?

  • Peter L

    @Mikhail Dworkin Fassbinder says:

    “(Just look at what happened at Polokwane. That was true democracy in action)”

    So 2,800 odd ANC delegates making decisions that radically affect the lives of 47 Million people is true democracy in action, is it?

    You and I clearly have different dictionaries that differ on the meaning of the term “democracy”.

    Regarding president Zuma’s various announcements on intitatives to curb corruption, we have heard all this – and more – before.

    Like all politicians, he should be judged on his actions, not his words (or his songs, or his dances).

    It is civil society and a vigorous (and aggressive) media that is leading the fight against corruption, not government.

    I do fully agree with your opening comment – the ANC is indeed (very) far from perfect, as is lamentably true of most political movements.

  • Anonymouse

    Chris says:
    March 4, 2010 at 18:28 pm

    I think this time around the CC might just find that a reverse onus on an arrestor who is subsequently charged for killing a suspect during arrest is saved by the limitations clause. It is all a question of balance.

  • ehud olmert

    The ANC needs modern day ppl like Nazi Propaganda Minister Joseph Goebbels….

    Goebbels principles:

    Propagandist must have access to intelligence concerning events and public opinion.

    Propaganda must be planned and executed by only one authority.
    It must issue all the propaganda directives.

    It must explain propaganda directives to important officials and maintain their morale.

    It must oversee other agencies’ activities which have propaganda consequences

    The propaganda consequences of an action must be considered in planning that action.

    Propaganda must affect the enemy’s policy and action.

    a. By suppressing propagandistically desirable material which can provide the enemy with useful intelligence

    b. By openly disseminating propaganda whose content or tone causes the enemy to draw the desired conclusions

    c. By goading the enemy into revealing vital information about himself

    d. By making no reference to a desired enemy activity when any reference would discredit that activity

    5. Declassified, operational information must be available to implement a propaganda campaign

    6. To be perceived, propaganda must evoke the interest of an audience and must be transmitted through an attention-getting communications medium.

    7. Credibility alone must determine whether propaganda output should be true or false.

    8. The purpose, content and effectiveness of enemy propaganda; the strength and effects of an expose; and the nature of current propaganda campaigns determine whether enemy propaganda should be ignored or refuted.

    9. Credibility, intelligence, and the possible effects of communicating determine whether propaganda materials should be censored.

    10. Material from enemy propaganda may be utilized in operations when it helps diminish that enemy’s prestige or lends support to the propagandist’s own objective.

    11. Black rather than white propaganda may be employed when the latter is less credible or produces undesirable effects.

    12. Propaganda may be facilitated by leaders with prestige.

    13. Propaganda must be carefully timed.

    a. The communication must reach the audience ahead of competing propaganda.

    b. A propaganda campaign must begin at the optimum moment

    c. A propaganda theme must be repeated, but not beyond some point of diminishing effectiveness

    14. Propaganda must label events and people with distinctive phrases or slogans.

    a. They must evoke desired responses which the audience previously possesses

    b. They must be capable of being easily learned

    c. They must be utilized again and again, but only in appropriate situations

    d. They must be boomerang-proof

    15. Propaganda to the home front must prevent the raising of false hopes which can be blasted by future events.

    16. Propaganda to the home front must create an optimum anxiety level.

    a. Propaganda must reinforce anxiety concerning the consequences of defeat

    b. Propaganda must diminish anxiety (other than concerning the consequences of defeat) which is too high and which cannot be reduced by people themselves

    17. Propaganda to the home front must diminish the impact of frustration.

    a. Inevitable frustrations must be anticipated…

    b. Inevitable frustrations must be placed in perspective

    18. Propaganda must facilitate the displacement of aggression by specifying the targets for hatred.

    19. Propaganda cannot immediately affect strong counter-tendencies; instead it must offer some form of action or diversion, or both


    first up the morale (thru training) & then shoot to kill…. either way its win win ?? sounds vaguely familiar ….Pre-1994? gotta love the paST how it outlines the future>>>

  • Charlie Ruckin

    @ Michael Osborne says:
    “Your position reminds me of some of defenders of capital punishment in the US. They will acknowledge that, yes, some innocents will be executed. And there is some possibility that I will myself be the victim of a false conviction, and executed. But the chances of that happening are so much smaller than the chances of being murdered by a criminal that it is a risk worth taking.

    This is logical as far as it goes, but it is premised on the assumption that harsh law enforcement will, in fact, reduce criminality.”

    Correct. Harsh law enforcement does reduce criminality. I won’t smuggle drugs to Thailand and people generally don’t steal in countries under Sharia law.
    … and it doesn’t have to reduce crime by much in SA in order to make a significant impact.

  • Charlie Ruckin

    @ Leigh says

    “the assumption that encouraging trigger-happiness in cops will reduce the rate of crime takes ANC logic from misconceived to infantile”

    Firstly, “trigger-happiness” is a massive exaggeration on the two key proposals discussed in the article.

    Second, the underlying role of police is to deter crime through fear of the consequenses of being caught. Seasoned criminals (the type who rob banks, houses and cash carrying vehicles with automatic weapons) carefully plan their crime and consider the risks. When the police are armed with batons, its a green light, however when they are armed (and able to shoot) it may be an amber or a red. Crime rate reduced. Lives saved.

    P.S. I love your condescending tone. Are you a school teacher?

  • Leigh

    Charlie, let me say three things about your opinion: first, it is silent on (a) the reasons that could motivate people to commit crimes and (b) whether those reasons could, in the aggregate, be stronger than any fear the offenders may have of the cops. Secondly, you do not consider the possibility that for crime statistics to start heading in the right direction, it could be the case (at least in large measure) that police will have to respond more quickly to crimes and investigate matters more effectively. In short, it is a simplistic brand of logic which supposes that reduced reluctance to use force will reduce crime. And thirdly, you do not adequately consider the adverse consequences of police being statutorily encouraged to use their guns less reluctantly. Let us engage in some basic supposition here: suppose two teenagers are shot and killed by police. The teens, before being killed, were surprised to see the cops and they acted abruptly but in ways which were not threatening at all – thus the cops could have engaged the teenagers in some way which did not involve the use of force. After the cops shoot them, it emerges that the teens were good kids who were on their way home from cricket practice to go and study. Can you imagine how (a) the public might react to this sort of occurrence and (b) how the public could come to distrust the police service? So with what respect your opinion deserves, let me ask you to take a broader view of the draft amendment. And by globular, I mean that you could look beyond the unsubstantiated prospective benefits of the draft amendment and expand your consideration to the possible costs and unconstitutionality thereof.

  • Maggs Naidu

    Charlie Ruckin says:
    March 5, 2010 at 16:25 pm

    “Correct. Harsh law enforcement does reduce criminality. I won’t smuggle drugs to Thailand and people generally don’t steal in countries under Sharia law.”

    Do you smuggle drugs into South Africa?

  • Charlie Ruckin

    Maggs Naidu says:
    March 5, 2010 at 17:59 pm

    “Do you smuggle drugs into South Africa?”

    Took some dope to Kariba once while at varsity. Would not have tried the same when I back-packed through Thailand.

  • Charlie Ruckin


    Some good points.
    The police do need to protect/improve their reputation, particularly after the way they behaved during the apartheid era.
    Training remains hugely important in this regard … and with regard to those pesky teens, it is unlikely that any well trained cop would confuse a DF Magnum with a 9m magnum.

    Then, I am certainly not suggesting we should be substituting the quality of investigations or the speed of response. These elements of policing are completely seperate and also require improvement in order to increase crime deterants.

  • Brett Nortje

    KAAPSTAD. – Mnr. Fikile Mbalula, adjunkminister van polisie, kon gister op ’n belangrike inligtingsessie by die parlement nie ’n enkele vraag oor sy portefeulje beantwoord nie.

    Die voorsitter van die inter-ministeriële taakgroep oor justisie en polisie, mnr. Jeff Radebe, moes later ingryp om vrae namens Mbalula te beantwoord óf om sy onsamehangende gebrabbel aan die media te ontsyfer.

  • Brett Nortje

    The gun prohibitionists have 1 in 10 members of the SAPS engaged in the administration in the Firearms Control Act when the owners of registered firearms probably commit crime at a lower rate with those registered firearms than do members of the SAPS.

    Unfortunately, some gun owners are less than perfect. It is not pleasant admitting this given the predilection of the gun prohibitionists to hold gun owners to standards they do not require of members of the SAPS nor indeed the government they lobby, even elect.

    There are gunowners who are cowards – 700 000 of them have crawled on their bellies to the ANC to hand in their firearms.

    There are also whores among gunowners – some gunowners thought the FCA was the road to riches and invested heavily to supply the training the ultra-vires-the Skills-Act competency regime extorted from gun owners.

    Auditor-General Terrence Nombembe shows no signs of getting off his butt to subject the implementation of the FCA to a forensic audit. It is common cause the shambolic implementation of the FCA has degenerated into farce. (I might have mentioned my sister has been waiting for 5 years for the renewal of her firearm licences.)

    Since Terrence Nombembe will not can we bounce around a few ideas regarding what can be salvaged from the Billion-Rand Black Hole FCA?

    The owners of registered firearms manifestly do not need the ultra vires training regime imposed on them. The SAPS do.

    Can some of the whores who looked at their fellow gun owners and saw $$$$$$$ not be outsourced to train the SAPS to a) win gunfights and b) do so within the bounds of the law and common human decency?

  • Bianca

    Wow! Brett!! Such venom and you did not bother to place in context the actions and complicity of the smug gun owners themselves.

    Some 400..600,000 gun owners and organisations according to the SAPS have applied – abandoned by them are those more than 1 million firearm owners who have been subjected to the FCA, with more to follow. They did not care enough to even raise their voice in protest not only at the injustice but the danger the SAPS and government would place the public in by disarmeing otherwise law abiding citizens.

    Yet if asked those who now yell and shout condemnation at others have done little but comply with a law and have done no different. Did they relicence and submit to a law which you see as unjustified and a danger to public safety? Who is the coward? The only difference is their turn to be robbed of firearms and ownership is yet to come. Come it will – Cele and others – Only the police must have guns. They mean it.

    Unless you get it through your head that this law will impact on everyone and it makes no difference if you are a gun owner or not the SAPS and government will disarm the public by removing the only guns they can, those which are held by law-abiding citizens. No person, organisation or government knows how to take guns from criminal hands and every attempt without exception has failed. The SAPS know it and the government knows it.

    The problem is not guns, it is an incompetent police and a knowing government who are willing to sacrifice the lives of citizens to obtain ideological agendas.

    There is absolutely no causal relationship between levels for firearm ownership and crime.

    Crime is best prevented by the swift sure arrest and punishment of criminals and reduced by addressing the social factors that cause crime. Gun control as crime control is a myth. 6% of REPORTED crime is punished and who bothers to report crime these days?

    As long as citizens are willing to accept the SAPS and governments lies without complaint that gun control is crime control they also accept that incompetence and ideological agendas are more important than their safety or lives.

    While the SAPS willingly chase guns instead of violent criminals at governments insistence we the public will continue to suffer.

  • Bianca

    Maggs said “Correct. Harsh law enforcement does reduce criminality. I won’t smuggle drugs to Thailand and people generally don’t steal in countries under Sharia law.”

    Actually it just displaces some petty crime and pushes up the price.

    “Do you smuggle drugs into South Africa?”

    Well criminals smuggle drugs into South Africa by the TON. They murder, rape, rob, steal and dehumanise citizens by the tens and hundred of thousand per year.

    While our valiant SAPS demand that citizens must be defenceless victims and chase guns instead of criminals who will shoot back to put in the melting pot and appear on TV to look like they are being successful. In order for the SAPS to survive in the crime wave they have created with their incompetence and lack of skill in investigation they demand to shoot on sight any suspected criminal.

    That begs the question – do we have a competent, well trained and efficient police force that is capable of swift sure arrest and ensuring criminals face punishment?

    If not, why not? Who’s fault is this?

  • Pierre De Vos

    Some of you are confusing harsh law enforcment with EFFECTIVE law enforcement. No matte how many people the police shoots and kills, if they do not actually investigate and solve crimes and secure convictions in court it will make no difference. One is scared of taking drugs into Thailand becausre the chances of getting caught is very high and the punishments severe. If tjhe punbishments were severe but the chances of getting caught between 0%-1% many more people would be smuggling drugs into Thailand.

  • Maggs Naidu

    For what it’s worth Bianca incorrectly quote me, rather than Charlie Ruckin (March 5, 2010 at 16:25 pm – “Correct. Harsh law enforcement does reduce criminality. I won’t smuggle drugs to Thailand and people generally don’t steal in countries under Sharia law.””

    That aside, countries like Thailand, Singapore, Middle Easter countries have a somewhat different approach to legal rights (and human rights) than we have – I am not too inclined to support views that suggest that we emulate those countries.

    There has to be a better way.

    We are also in need of a charter of sorts for victims rights.

  • Brett Nortje

    Agree 100%, Maggs!

    “That aside, countries like Thailand, Singapore, Middle Easter countries have a somewhat different approach to legal rights (and human rights) than we have – I am not too inclined to support views that suggest that we emulate those countries.

    There has to be a better way.”

  • Maggs Naidu

    Brett Nortje says:
    March 8, 2010 at 9:59 am

    “Agree 100%, Maggs!”


    It’s most unfortunate that while our constitution affords all kinds of protections to criminals and/or alleged criminals, it appears to be completely silent on rights of any kind on victims.

    It is also most unfortunate that the entire legal fraternity seems so disinterested on the the rights of victims, except of course when it is RAF related.

  • Gwebecimele

    Whilst we are afraid some are paying dearly out there.

  • Brett Nortje

    Maggs, the state should be focussed towards protecting victims’ rights.

    The rights culture seems almost to have been pre-programmed to fail. Why?

  • Bianca

    Maggs is it true that there are none so blind as those who will not see?

    You clearly state that other countries have more efficient police but then make the startling and erroneous claim this success is due to human rights abuse. Some of it may well be but the point of a well trained efficient and competent police was wasted on you was it not. I wonder why. To simple? Unthinkable to implement? Impossible to implement?

    Oh! one may add the criminal justice system and correctional services to the list as well which will soon grow very long.

    The current conviction rate is around 6% of all reported crime. It is government and the systems message to criminals that they may commit crime with impunity and face little chance of being punished.

    It is governments statement to the pubic of how much government cares about citizen safety and security. One only has to see how these cowards are willing to spend public money in order to live in the cesspool or crime they have created.

  • Bianca

    For what it’s worth Bianca incorrectly quote me, rather than Charlie Ruckin

    My apology but I still can’t figure if you are agreeing or not.

    Do they smuggle drugs in to South Africa, was your comment and this would imply from the correct answer which is yes by the TON that a lack of harsh laws was responsible.

    I suggest you read what was known in 1764 — ON CRIMES AND PUNISHMENTS

    Apparent it is still rocket science.

  • Maggs Naidu

    Bianca says:
    March 8, 2010 at 18:18 pm

    I am not sure that countries like Thailand, Singapore, Middle East states have more efficient police.

    More brutal, maybe.

    I, and I suspect that many South Africans too, don’t want a brutal police force.

    More robust, more assertive, more highly trained, more proactive – not brutal.

    But, I will hasten to add, that the failings should not be laid purely at the door of SAPS – the entire criminal justice system needs some Red Bull.

    Judges who, for example, say that it’s not so bad for fathers to rape their children as those adults who brutalise other children, need some electric therapy.

    Add prosecutors who fail or refuse to do their jobs and do it well.

    Add correctional services who parole less than terminally ill prisoners on medical parole.

    Ultimately the responsibility and the blame should lies with us – the South African people.

    We seem ready, willing and able to to regard ourselves as powerless and to accept ourselves as second class citizens.

  • Bianca

    Here is a thought. The system only does as well as the public demand. When government does wrong and it will not translate to a vote loss it is acceptance of governments actions.

    The only way citizens will ever have of punishing a “democratic” government that ignores their demands is by withholding votes or voting for the opposition.

    No government will be deterred from policy decisions by reason or logic because government’s reasons are different. They are always more power.

    Sir Robert Peel defined nine principles of good policing. Reading them will give one a good idea of what the police should be.

    This is not something new nor is it rocket science. It is simply government being able to ignore sound practice because it suits some other purpose and not having to face punishment at the polls for it.

    We get what we ask for.

  • Gwebecimele

    The First Lady we never had!!!
    It was Duarte and now Winnie, I hope more leaders will have more courage and start speaking from the heart.

    There is hope for better things.

  • Chris

    Gwebecimele says:
    March 9, 2010 at 11:21 am

    I never had a high opinion of Winnie. Now she proved me right.

  • Mikhail Dworkin Fassbinder

    Gwebecimele and Cmd WM Mandela are right.

    As Cmd Winnie points out, “the economy is very much ’white’. … It has a few token blacks.”

    This is why I am renewing my demand that management of the mines be transferred immediately to an ad hoc board drawn from the executive of ANCYL, chaired by Cmd Malema.


  • Gwebecimele

    @ Chris

    I fully understand. In survey conducted by Sunday Times in 2004 Verwoed (19) ranked higher than Beyers Naude ( about 36) as a hero to some. We all have our preferancesand no one can take that away from you.

  • Gwebecimele

    @ Dworky

    I have seen a figure of about R54 million as bank balance of a certain youth leader, I guess that would be a good candidate for natinalization.

    Again, I am looking forward to more confessions and tears from ANC leaders as it is the trend lately Pikoli, Masethla, Duarte, Winnie, Selebi etc. We seem to get more out of these instances than what comes through the spin doctors.

  • Gwebecimele

    Poor Mr Sokutu, it seems as if some spin doctors are punching above their weight.

  • Gwebecimele

    Winnie has just repeated what majority of black people say in blogs, private dinners etc. Some of these facts have been announced at rallies of the ANC.

    May be she added a bit from her perspective as wife to a man she knows better than all of us.

  • Maggs Naidu

    As some of our judges will say, this is their own children so it’s not too bad.

    “Two men have been arrested for allegedly raping their children in Libode, Eastern Cape police said on Thursday.”

  • Maggs Naidu

    Gwebecimele says:
    March 9, 2010 at 11:21 am

    “The First Lady we never had!!!
    It was Duarte and now Winnie, I hope more leaders will have more courage and start speaking from the heart.”

    Maybe not!

    We have been asked by Mrs Winnie Madikizela-Mandela to help distribute this statement to the media. We, of course, are not in a position to answer any questions relating to it. – Achmat Dangor, CEO of the Nelson Mandela Foundation


    12 March, 2010

    In response to the “alleged” interview with Ms Nadira Naipul, published initially in the London Evening Standard and then widely picked up by media across the world, I would like to state categorically:

    I did not give Ms Naipaul an interview. It is therefore not necessary for me to respond in any detail to the contents of a fabricated interview.

    I will in the coming days deal with what I see as an inexplicable attempt to undermine the unity of my family, the legacy of Nelson Mandela and the high regard with which the name Mandela is held here and across the globe.

    I have already had the opportunity to speak to Bishop Tutu, who was also in Atlanta, USA where I addressed a meeting. I intend speaking with Madiba and Graca, as I regularly do. I will also have to deal with the hurt caused to my children and grandchildren by the unwarranted and untrue statements about their private lives. I appreciate the fact that my organisation the ANC decided to hear my “side” before making any judgements.

    Finally I repeat that I did not give Ms Naipul any interview. Any further questions about the content of that fictitious interview should be addressed to her.

  • Maggs Naidu

    And some of our judges must be right – rape of own children is not so wrong.

    “A 59-year-old Atteridgeville man was arrested on Monday morning for allegedly raping his 16-year-old daughter, Pretoria police said. …

    “He allegedly slapped anyone who asked questions and told them even the Bible made provision for fathers to sleep with their daughters.”

  • Maggs Naidu

    And here’s another case with sentences that boggles the mind.

    “A mother was on Tuesday sentenced to a total of 44 years, of which she has to serve an effective 18 years, by the Pretoria High Court for her part in the rape and abuse of her six-year-old daughter.

    “Her former boyfriend, who is 14 years her junior, received a total of 42 years imprisonment, of which he has to serve 16 years.”