The newly appointed National Commissioner of Police, Bheki Cele, seems to have a very short memory. Just a few months ago he was one of the politicians who regularly attended the various court appearances of Jacob Zuma – who was then still an accused in a criminal trial. Then Cele and everyone who knew which side their bread was buttered on and wanted a cabinet post, an ambassadorship to the French Riviera or a lucrative government tender, reminded us all that in South Africa an accused person must be presumed innocent until proven guilty in a court of law.
But now that Zuma is safely ensconced in the Union Buildings and Cele is trying to win applause from the peanut gallery, clamouring for (an impossible) quick-fix crime solution, it seems as if Cele has conveniently forgotten about section 35 of our Constitution. Now he wants the law to be changed to allow the Police to “shoot to kill criminals”. With “criminals” Cele means accused persons (such as Zuma was until recently) who have never been tried or convicted of any crime. In other words, he wants police officers to have the power to kill innocent civilians without having to bother with the fair trial or the procedural safeguards that Zuma and his supporters demanded for the President.
One rule for politicians, another for ordinary citizens. And then people who should know better applaud this kind of police-state talk.
According to a Cape Argus report, Commissioner Cele said the police needed to match the firepower of criminals and to use “deadly force”. In the process, he wants to create a country “where people aren’t told they’re safe, but actually feel safe”. He said the call to revisit section 49 of the Criminal Procedure Act, which provides grounds for justifiable homicide, had been made because police officers spent more time working out what the law allowed than actually using it in a quick response. According to the report, Cele said the law had placed the burden on individual police officers when faced with using firearms in retaliation, and that he agreed with the Minister of Police that the onus should be on the SAPS as an organisation. “Don’t make it the problem of the individual,” he said.
It is worth noting that section 49 of the Criminal Procedure Act was amended after the Constitutional Court in the Walters case found that the previous version of this section did not comply with the requirements of the Bill of Rights, including the guarantee to the right to life (a rather important right guaranteed by our Constitution) and was not justifiable in terms of the limitations clause. The Court then set out the permissible law regarding the use of force by the Police.
(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.
That is why the present section 49 does not preclude the use of force by Police officers and attempts to strike the right balance between protecting the rights of accused persons (who like Zuma might never be found guilty of any crime!) and the interests of society. It states:
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 that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds (a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm; (b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or (c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.
So the law as it stands does allow the police to use deadly force against individual criminal suspects who – like Zuma – must be presumed innocent until convicted of a crime in a court of law, but only in certain circumscribed situations. These situations are not limited to one’s where the police act in self-defense or in the defense of the lives of others. Police officers are also allowed to shoot and kill suspects if there is a substantial risk that the suspect will flee and then seriously hurt or kill someone else or where an arrest is in progress and the suspect violently resists arrest.
Cele seems to want the Police to have the right to shoot and kill any South African citizen without having to have to think about it first or to have to explain their individual decisions that led to the killing of a suspect. Many South African’s gatvol of high crime rates might applaud this sentiment, but they have to remember two things.
First, the sentiment is profoundly anti-Bill of Rights and anti-constitution. The Constitutional Court has already set the limits regarding the use of force by police and Cele’s proposal will only be viable if we change the Constitution. Maybe we can dispense with that silly provision that says every accused is innocent until proven guilty at the same time? Or what about scrapping the right to property?
Second, the sentiment is dangerous and will – if implemented – turn us into citizens who fear their police (instead of into citizens who respect the Police). Every night one would be driving home from dinner with fear in one’s heart because one would know the police could shoot and kill you right there, claiming afterward you looked like a dangerous criminal. If you happen to walk home from a shebeen after an argument with the friend of a police officer about the merits of Kaizer Chiefs strikers, you might find yourself dead on the pavement, shot by a police officer doing his buddy a favour knowing that he would never have to explain his killing of a “criminal” to anyone.
We will not address the crime problem by allowing police officers randomly to shoot innocent citizens. One will begin to address the problem by training an efficient and hard working police force who can investigate crimes without bungling even the most basic of procedures. We must rather teach the police officers how to read and write, how to use forensics to solve crimes, how to infiltrate criminal gangs and smash them by gathering evidence that will stand up in court, and leave this dangerous cowboy stuff for police states. I hear the Police in North Korea is quite effective and I am sure they also have a shoot to kill policy.
Print 
PDF
Cele should choose his company more carefully: while claiming to make South African citizens safe, he’s now shielding his mate Prince Sifiso Zulu from culpable homicide charges. Seems that some of us deserve to be presumed innocent more than others…
prof: is your mission to bash everything the gov do or say. I have never seen any positive comment about our country from your blog.
the Law,
Unfortunately we are in a society wherein the Law is inforced the way every individual inforcer believes it to be as opposed to how it is.
This(above) explains the difference of what happens, in a police station, when a Man goes to open an assault case against his wife vs when a wife does the same against the husband.
another easy one is the reason why we see even judges delivering Minority Judgments. We differ in views.
To be truthfull, Prof, this section is not easy to implement. Put yourself in a position where a criminal once missed you/ and your daughter with a Bullet and today you found him.
I believe the practical administration of Justice differs materially with the theoratical part. But still this does not Justify Mr Cele to be too loud to the already insufficiently trained police.
The police officers should be warned, murder is still a crime and we will charge them.
Absolutely Sebjeni,
The practical application of justice within the pre-trial stage has been difficult.
While the worry about the constitutionality of section 49 is always in the media, one never hears how the constitutionality of section 50 of CPA has never been challenged when so many deaths have occurred during this phase of detention.
Its ironic that during the dark days of apartheid and the brighter interim Constitution, one could apply for bail outside court hours but suddenly the Bill of Rights takes a break after 5PM every evening during the week and is off weekends.
The Prof highlights having a police we respect instead of fearing but when you have fire-fights between criminals and police where the criminals are armed like a navy seal team and they themselves are aiming to kill … one can only draw one conclusion … that they do not respect what the police represents and thus are guilty of treason.
I am sure that more sophisticated societies than ourselves have considered this punishable by death.
But of course” the bill of rights including the guarantee to the right to life (a rather important right guaranteed by our Constitution)” – which ironically is not afforded to police officers who go out everyday to serve and protect …
I’m starting to doubt whether this whole constitutional supremacy thing is maybe just a hoax.
Stago // Aug 3, 2009 at 1:51 pm
prof: is your mission to bash everything the gov do or say. I have never seen any positive comment about our country from your blog.
Stago, you are not adding any value to this discussion. Prof de Vos, as usual, made his point and give reasons for his position – whether or not you agree with it. You, on the other hand, are brushing everything ever discussed in this blog as nothing positive. Can you give reasons why in your opinion, knowledge and experience, nothing ever been discussed in this blog is positive? I will not be suprised if you are viewing anything discussed in this blog through pro- or anti-zuma spectacles, hence your grave lack of objective analysis even beyond the elections and the fact that his cases have since been astonishingly dropped by the NPA.
Prof. , good article but let me generously remind you that Zuma is no suspect to any criminal proceedings as we speak so your repeated references to him as a suspect are malicious and serves to point to your obsession with him as a handsome man, careful he may be searching for a fifth wife!
Stago:
the true sign of a patriot (one who loves his or her country) is not being a blind cheerleader, but being critical of what is wrong in the hopes that by doing so it will become better.
I am sorry that the criticism bothers you and depresses you, but the facts are that there are problems out there, as even JZ and Cele note. In fact, Cele’s talk about having the police shoot criminals is an admission that the criminal justice system is not working (shocking admission, i know).
Pierre is simply arguing that Cele’s solution (kill them all and allow Dog to sort out the sinners from the innocent) has some problems–like being unconstitutional.
And being a true patriot really means that you should be loyal to the Constitution, not to the ANC or Zuma or Mbeki or any other politician or party. The Constitution IS South Africa. The ANC is simply a bunch of self interested people acting in their own self interest (that is the definition of a political party, after all). And Zuma is just one of those people.
And self interest is fine, as long as it is within the bounds of the Constitution. Indeed, self interest is and should be the norm. No one expects politicians to be above self interest–they are not angels, and none of us are so delusional as to believe that they are.
But that key question (what is within the bounds of the Constitution) is what this blog is all about (which, surprise, surprise, is why it is called…..”Constitutionally Speaking”. ).
Mdu, I do not state anywhere in the article that Zuma is currently an accused person – only that he used to be….
PS: I really like Cele’s dress sense…… Those hats are very Michael Jackson meets Al Capone
It seems everyday is J & B Met for Mr Cele. I do though hope your comparisons are just about the hats – period, As Jackson and Capone were not in law enforcement, they did cross paths with it on numerous occasions.
PM // Aug 3, 2009 at 3:12 pm
” … Cele’s solution (kill them all and allow “Dog” to sort out the sinners from the innocent) has some problems–like being unconstitutional.”
I would assume that its nothing more than a typo but if not, then do note that even the Constitution affords your so-called “dog” some respect.
Prof, you will recall many months ago when we were debating the concept of ‘innocent until proven guilty’ you and others were of the view that it is only applicable when one appears before a court of law. I even submitted that it is a concept that should be embraced by everyone even in our day to day activities. Are you now suggesting that the police officer should always remind himself that the suspect is innocent until proven guilty? Is the police man not entitled to say ‘in my eyes you are guilty of murder’?
Prof, I think your earlier arguments may have been motivated by the person involved (Zuma) as opposed to applicable law – without realizing that later on it may come back to haunt you.
Bongs, I think you are mikssing a point a bit. The contBongs, I think you are missing a point a bit. The context in which this concept or principle of `innocence until proven guilty’ was on whether it is applicable to / binds court only to view an accused person as such -that is until he has been tried and found guilty as a result of which finding he can the be punished (shoot or kill in Cele’s language and law); and / or whether it also applies to/binds the general public to do as such. And Prof and others’ argument which I supported and still support now was that that principle only applies to and binds the courts to view and accused as such. The general public applies different rules that borders on what it views as morality or immorality. As a result, people will often see and treat you as a criminal or a rapist even if you have been acquitted by the court of law. In this case, the police are not part of the general public but rather law enforcement agency which is part of the security cluster whose behavior and conduct is deregulated by written laws. As a result, they are not allowed to just shoot and kill someone simple because he or she has been found in the scene of crime. They have to allow the law to take its course – arrest (and not shoot or kill) the `dog’, try him, find him guilty and then `shoot’ or kill – BUT ONLY IF OUR CURRENT LAW PROVIDE FOR SUCH FORMS OF CAPITAL PUNISHMMENT, which I doubt. So Mr. Cele and her sister Susan Shabangu may still find themselves being 15 years late from joining the police force which could be the platform for them to shoot and kill as they pleased. ext in which this concept or principle of `innocence until proven guilty’ was on whether it is applicable to / binds court only to view an accused person as such -that is until he has been tried and found guilty as a result of which finding he can the be punished (shoot or kill in Cele’s language and law); and / or whether it also applies to/binds the general public to do as such. And Prof and others’ argument which I supported and still supoort now was that that principle only applies to and binds the courts to view and accused as such. The general public applies different rules that borders on what it views as morality or immorality. As a result, people will often see and treat you as a criminal or a rappist even if you have been acquited by the court of law. In this case, the police are not part of the general public but rather law enforcement agency which is part of the security cluster whose behaviour and conduct is regregulated by written laws. As a result, they are not allowed to just shoot and kill someone simple because he or she has been found in the scene of crime. They have to allow the law to take its course – arrest (and not shoot or kill) the `dog’, try him, find him guilty and then `shoot’ or kill – BUT ONLY IF OUR CURRENT LAW PROVIDE FOR SUCH FORMS OF CAPITAL PUNISHMMENT, whicch I doubt. So Mr Cele and her sister Susan Shabangu may still find themselves being 15 years late from joinging the police force which could be the platform for them to shoot and kill as they pleased.
Pierre, you’re smugly self-righteous, with scant regard for grammar. But what an important voice you wield.
Bongs, I think you are missing a point a bit. The context in which this concept or principle of `innocence until proven guilty’ was dicussed was on whether it is applicable to / binds court only to view an accused person as such -that is until he has been tried and found guilty as a result of which finding he can then be punished (shoot or kill in Cele’s language and law); and / or whether it also applies to/binds the general public to do as such. And Prof and others’ argument which I supported and still support now was that this principle only applies to and binds the courts to view and accused as such. The general public applies different rules that borders on what it views as morality or immorality. As a result, people will often see and treat you as a criminal or a rapist even if you have been acquitted by the court of law. In this case, the police are not part of the general public but rather law enforcement agency which is part of the security cluster whose behavior and conduct is regulated by written laws. As a result, they are not allowed to just shoot and kill someone simple because he or she has been found in the scene of crime. They have to allow the law to take its course – arrest (and not shoot or kill) the `dog’, try him, find him guilty and then `shoot’ or kill – BUT ONLY IF OUR CURRENT LAW PROVIDES FOR SUCH FORMS OF CAPITAL PUNISHMMENT, which I doubt. So Mr. Cele and her sister Susan Shabangu may still find themselves being 15 years late from joining the police force which could be the platform for them to shoot and kill as they pleased.
Pls ignore earlier post.
Bongs, as I tried to explain at the time, I believe there is a difference – constitutionally, ethically, practically and politically – between the way we deal with a criminal accused on the one hand, and the way we make judgments about individuals and their character on the other. An accused – if convicted – can be locked up for life and (if Commissioner Cele has his way) can even be shot and killed without the benefit of a trial before an independent and impartial judge. Such an accused therefore is protected by section 35 of the Constitution (and it is good that she or he is protected, as one never knows when one will become an accused and then one would want to have the protection of the constitution not to be sent to prison or killed because someone somewhere does not like you). But if one is a politician, judge, minister in a church or other public figure, people will invariably form an opinion about you and in forming such an opinion it is not only impossible but also unwise to suspend the forming of any adverse opinion of someone until that person has been convicted of a crime. Politicians and others abuse the notion of “innocent until proven guilty” – a right which applies only to an accused before a judge or magistrate – to try and avoid scrutiny and criticism and this seems to me to be deeply undemocratic and dangerous. No one has the right to be presumed innocent by the generally well informed public, despite the emergence of deeply damaging and problematic facts about that person. So while Mr Zuma – when he was an accused – had every right to rely on section 35 to prevent a court from prejudging the criminal case against him, he had no right to prevent us from forming and adverse judgment about him because he (i) befriended a crook; (ii) took millions from that crook; (iii) took money solicited as a bribe by that crook after meeting the person who paid the bribe and lying about this to Parliament; (iv) did favours for the crook after receiving the money from him. (Of course, it also does not preclude any of us from deciding that despite being an ethically deeply flawed man he might be a better President than the thin-skinned, paranoid and denialist Mbeki.) These judgments cannot be avoided by invoking innocent until proven guilty but unlike a final sentence in a criminal case they can continuously be revised. That is why s 35 applies to the latter case and not the former.
When the rights of individuals, regardless of their flaws or nobility, are given over to the state and exercised by the police without the wisdom of an evolved democratic judiciary, then the innocent will invariably suffer, and indeed the state and society will suffer, degrade and diminish into insignificance.
Giving a state the right to take life has proven repeatedly that much like many other things a state does, it abuses the right. Without question there will be innocent victims.
Like almost everything the ANC does in this stage of its life, it chooses the lowest common approach. Unfortunately they are so over their heads, not a creative thought or action can arise.
You may recall dear old Clint: “Make my day!” Its petty, juvenile and totally lacking in intelligence.
I think the crux of the matter here is that Cele is trying to play into the populist arena again. The Constitution already gives ample guidance (the way I read it) in terms of the appropriate use of force.
I think the issue here is not giving the police more power to randomly shoot without consequences, the solution is to educate the police more thoroughly through a nationally co-ordinated training program, which emphasises the permissible aspects of the use of force, as well as responsibilties that are commesurate with that possibility. That way, everybody is on the same page.
I don’t know, seems pretty straightforward to me? Or am I missing something?
Prof: Have you seen this? http://www.mg.co.za/uploads/2009/07/30/mgjudgement.pdf
His final judgment on the ball, but some reasoning seems to be contradictory.
Prof & mayimele
As I advocated before, I still embrace the presumption of innocence. I still say not only public officials/organs of State, we should all embrace it. Remember that when the Concourt judges published Hlophe’s complaint – in their defence it was argued that in their eyes Hlophe had improperly tried to influence some of their own – they believed their colleagues – so in their eyes Hlophe was guilty. Are the Concourt judges ordinary members of the public who are entitled to ‘convict’ Hlophe before JSC found him guilty? This is where the problem of selective application of this presumption comes in!
@ bongs: if we consider that our Concourt judges are adequate, that their perception of applicants (and it seems to me that Hlophe was in a sense appealing to them to insure they made the ‘right decision’) that they can be condemned to feeling victimized to unconstitutional influence by someone ‘connected’, to fear their future, their career and security, to reconsider therefore.
I for one would have been furious, and justifiably so… as in ‘how dare you?’
I recall the three B’s: Bullshit Baffles Brain.
Bongs, surely you are not contending that section 35 applies outside the criminal trail context and that individuals have a right not to be judged by others unless they have been convicted of a crime? This would lead to absurd results. Two examples: (1) I have a best friend. My partner informs me that he had sex with my best friend. Now, it was not a crime (and there is a 1% chance that my partner is lying), so if one follows your approach I have a duty not to judge my (now ex) best friend in any way because he has never been found guilty of a crime. This seems to me absurd. (2) Adolf Hitler as far as I know was never convicted of any crime nor of perpetuating the Holocaust. In your argument we must presume Hitler innocent until proven guilty, so should not say anything critical about him. Once again, absurd. Your response would probably be that one could make exceptions? But when? When not?
The prof is clearly not Afro-centric and his support for the constitution shows how Euro-centric he is. What we need is Cele and Hlophe to introduce a proper Afro-centric approach to our law. That means a “shoot to kill” policy as displayed, for example, by the British special forces against the IRA, most memorably in Gibraltar … oops that sounds Euro-centric … we would have to look to African countries for the proper application of “shoot to kill”. Can’t think of any off hand …
Prof
1. Point of interest: The “new” section 49 was introduced by the Judicial Matters Amendment Act, 1998. The Walters judgment was delivered in 2002. The new section 49 was only put into operation in 2003. Five years later, there are still no judgment (that I am aware of) where a police officer was found to have used deadly force unlawfully when attempting to effect an arrest.
2. I would be interested in your evaluation of Snyman’s (Criminal Law, 5th Ed on 135/6) discussion of his “hypothetical set of facts” re the application of s49. (Regardless of whether or not one agrees with the author’s views on the section, the work in question is held in high regard by the police.)
Prof. I think you are deliberately ‘misunderstanding’ my point. What I take issue with is the double standard of relying on the ‘presumption of innocence’ whenever it suits you. At the heart of your post is the following statement:
“…it seems as if Cele has conveniently forgotten about section 35 of our Constitution. Now he wants the law to be changed to allow the Police to “shoot to kill criminals”. With “criminals” Cele means accused persons (such as Zuma was until recently) who have never been tried or convicted of any crime.”
When it suited you it was ok to confine application of section 35 to an accused before a judge/magistrate (Zuma and Hlophe were not entitled to the presumption because they were not yet before a judge/JSC) . Now, when it suits you, a police man must heed section 35 and not shoot an ‘innocent citizen’!
I think the following should be taken into account:
Before the CC declared s 49 of the CPA unconstitutional, it provided that the reasonable use of force (including lethal force) to stop a suspect from fleeing before justice was excusable. In other words, provided that it was ‘reasonable’, the police could use force (and sometimes even lethal force) with impunity if that was the only way a person suspected of having committed a Scedule 1 offence could be brought to justice.
When the CC declared s 49 unconstitutional it preferred the following interpretation, which was put into place until the legislature could rectify the whole thing:
The use of lethal force to arrest (stop) a person from escaping justice can oly be excused in cases
(1) where the circumstances justified the use of lethal force in private defence (of oneself, someone else or – taking the common law into account which the CC didn’t – of someone else’s property);
(2) where the fleeing suspected was on reasonable ground ssuspected to have committed a crime involving serious violence (the latter taken from Canadian jurisprudence). This is probably because only a small number of serious vilent crimes suspects are successfully traced, arrested, or otherwise araigned and brought to justice, simply because they do not hesitate to use even violent force to escape justice and often cannot be brought to justice if they are not forcefully stopped and sometimes even killed in the process of trying to bring them to justice.
However, when the legislature introduced the new s 49, only (1) above was provided for since, even in cases where the suspect was wanted for arrest on a crime involving serious violence, the requiremet in s 49 is that lethal force may only be used if the crime is in progress or the fleeing suspect provides a threat to the arresting officer or someone else. In other words, only the common law ‘private defence’ is catered for.
Why must the common law defence be catered for in legislation if killig under such circumstances would in any case be lawful for a private person or police officer alike?
I think that is what caused Cele’s call for a revision of s 49 (in other words, the incompetence of the legislature in enacting the provision as it stads shold be cured so that it still conforms to the CC’s decision.
Bongs, I do not see any double standard at all for the following reasons. (i) Those who support a tightening of s 49 to allow the police to shoot to kill suspects, say that this is because the police must be allowed to shoot and kill “criminals”. But what they mean is that the police should be allowed to shoot suspects who have never been tried by a court. They are therefore not respecting the right of suspects to be presumed innocent until proven guilty, branding them as “criminals” despite the fact that they have never been convicted; (ii) The aim of arresting suspects is to secure their presence in court to stand trial. When standing trial an accused must be presumed innocent until proven guilty. If an accused is shot dead by a police officer, he or she would be denied the opportunity to stand trial and will thus also be denied the right to be presumed innocent at their trial. Killing a suspect therefore has the effect of denying a suspect the fair trial rights in section 35.
In other words, the right to be presumed innocent until proven guilty before a judge or magistrate will be irrevocably and finally extinguished when a police officer shoots and kills a suspect. In cases where a suspect is killed by a police officer without the benefit of a trial, it is not logically possible to make the distinction between what happens at the arrest of a suspect and what happens at trial.
Prof De Vos – “In other words, the right to be presumed innocent until proven guilty before a judge or magistrate will be irrevocably and finally extinguished when a police officer shoots and kills a suspect.”
This also happens in cases where someone (police official or private parson), intentionally or negligently kills someone who, supposedly, poses a threat to property or people during the process of arrest and who is killed in private defence, which is allowed by s 49. the ‘guilt’ or not of the person killed would not have been established in a court of law, and often, or mostly, one would only have the word of the person who dealt the fatal blow to judge whether it was necessary or not.
Furthermore, many people suspected (on reasonable grounds) of having committed serious crimes, especially violent crimes, walk free because they cannot be arrested or traced for summons after they got away and besides their being on the scene at the time in highly suspicious circumstances, there is no possibility of their being traced. E.g., the heavily armed AK 47-wielding robbers were all masked, gloved and did not leave any fingerprints or DNA material that could lead to their being traced, and they had to be let go of because, besides carrying AK 47′s at the time that they fled the scene, they did not immediately pose a threat to the police or the public whilst running. Is that justice? I think the Constitution ad the law strikes a balance between accused persons’ fair trial rights (including the right to be presumed innocent until proven guilty) and society’s right to bring suspected criminals to jsutice. Those rights can only be perfectly ballanced if both sides’ rights are recognized. In other words, in some instaces it will be justifiable to allow someone to kill someone else with impunity.
I agree with pierre, he got a flamoyant dress sense. Damn! Tis cool. Like a rock star police commissioner. Let hope the al copone image is not ominus, referring to the last al copone of the police service, jackie selibi.
Prof De Vos & Bongs: I still think that reading the Walters decision available at
http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/p97iqVkFES/MAIN/0/57/518/0/J-CCT28-01
paras 26-54, especially paras 38-40 and 54, there is room for amendment of the current s 49 (2) (c) of the CPA. It currently reads:
“(c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievious bodily harm.”
By requiring the crime to be “in progress” reduces paragraph (c) of the qualifications to nothing more than has already been provided for in paras (a) and (b), which actually codifies the defence of ‘private defence’ that is already available at common law.
It can in the light of the Walters judgment pass constitutional scrutiny if it reads:
“(c) that the offence for which the arrest is sought is of a serious nature involving the use of violence or a threat of violence aimed at causing serious bodily harm or death.”
I’m sorry – the link in the previous post is a ‘redirected’ one on the CC’s website. The proper link to the Walters case would be http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZACC/2002/6.html&query=%20Walters
Mouse
Many years ago when I was still studying towards my law degree, one of the cases I read about private defence was about a guy who killed in protection of his ‘groceries’ – he had been mugged (if I am not mistaken). His defence was upheld. It looks like the Constitution does not recognise that defence anymore?
Bongs – That kind of defence has not yet been tested against the new Constitution of this country. However, the old Ex parte Minister van Justisie: In re S v Van Wyk paradigm still stands, that one can act in private defence in order to protect one’s possessions. The Van Wyk case was where shotguns were set up to protect a store against burglars and one of the burglars were killed after illegally having entered the shop. The requirements were set that there should however be warnings set up in the official and local languages that tresspassers may be shot and killed.
I remember when I was still a young magistrate in a small dorp, I had to do three inquests where burglars were shot and killed in three different incidents where burglars ignored the warnings set up all around the shop and burgled (or attempted to do so) the place. In all three cases I had to find that the shop owner was not criminally liable in the light of the Van Wyk case. The tale has a twist, however, a few months later I had a fourt inquest emanating from the same shop. This time however, the deceased was the shop owner himself, having had forgotten someting in the shop and that he had already set up the shotguns. When he entered to fetch what he had forgotten – Kaboom! … And he was gone.
Justice in private defence cases? – He who lives by the sword shall die by the sword – so the Bible tells us.
Whatever – Cele is still at it http://www.news24.com/Content/SouthAfrica/News/1059/95b6294eb22446feacb04239c8720dae/05-08-2009%2004-08/Cele_wants_fire_power_for_cops
Mouse
You have interesting stories! Did you find that the shopkeeper committed ‘suicide’?
Bongs – No, just grossly negligent – no financial problems – no nothing – he locked up the shop after he set the shotgun (‘gutt-height’) with a trip wire – he was with his son and someone else – half way home (500 metres away, his son (not himself) remembered that they forgot something in the shop – they walked back – the shop owner entered first – appears to have cleanly forgotten about the set gun – tripped over the trip wire and …