Readers of this Blog already know that Minister Jeff Radebe (LLM Leipzig) has some pretty strange views about the Constitution. We also know that he is not a man to let the facts or an authoritative interpretation of the Constitution intrude on an expedient political argument. So it should come as no surprise that in defending the draft amendments to section 49 of the Criminal Procedure Act, the Minister has completely misstated the reasoning of the Constitutional Court judgment dealing with section 49(2). Yesterday he said:
When you see the draft … you will realise that the amendment will be in conformity with the guidelines established by former Constitutional Court Judge Kriegler in State versus Walters where he elaborated the guidelines that must be used by the police. That is precisely what this amendment is about. Judge Kriegler even uses the words deadly force in setting those guidelines under particular circumstances…
Being a naive sort of fellow, I thought maybe the Minister had spotted something in the Walters case that I have missed, so I re-read the judgment yesterday. It turns out the Minister had clearly failed to come to grips with the Constitutional Court precedent, perhaps because he had failed to understand that the principle of proportionality animates the judgment.
In Walters the Court made it clear that it would always constitute an infringement on a persons right to life when he or she is killed by the police. Such a limitation of one’s rights could only be justified in terms of the limitation clause which requires us to ask what is reasonable and justifiable, having regard to the purpose of the provision and the means used to effect that purpose. The purpose of the provision can be twofold: either it is aimed at protecting police officers and the public or it is aimed at ensuring that dangerous criminals are arrested.
The amendment could not be aimed to protect police officers or the public, as the common law already allows police officers or anyone else to shoot and even kill someone who poses an immediate threat to anyone’s life.
The amendments must therefore be aimed at ensuring the arrest of dangerous criminals. But it is far too broad to pass constitutional muster as it allows the use of deadly force, as opposed to the use of that force necessary, to effect the arrest. It also allows the killing of a suspect even when that suspect could reasonably be arrested at another time and place.
The proposed amendments would allow a police officer to shoot and kill any suspect 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”. This would be the case even where the suspect posed no immediate danger to the police or members of the public and even when it would be possible to arrest the suspect at a later stage.
This is clearly not sanctioned by the Kriegler decision in Walters. What is required in every case is for a police officer to decide, taking into account all relevant facts – not only the one’s mentioned in the draft amendments – what degree of force is necessary or whether any force is necessary at all. This is what any proportionality test requires.
The Constituitional Court made clear that the purpose of an arrest is to apprehend a suspect – not to kill him or her. As Kriegler stated:
The purpose of an arrest is to take the suspect into custody to be brought before court as soon as possible on a criminal charge. It does not necessarily involve the use of force. On the contrary, the use of any degree of force to effect an arrest is allowed only when force is necessary to overcome resistance (by the suspect and/or anyone else), to an arrest by the person authorised by law to carry out such arrest. And where the use of force is permitted, only the least degree of force necessary to perfect the arrest may be used. Similarly, when the suspect flees, force may be used only where it is necessary and then only the minimum degree of force that will be effective may be used. Arrest is not an objective in itself; it is merely an optional means of bringing a suspected criminal before court. Therefore resistance or flight does not have to be overcome or prevented at all costs. Thus a suspect whose identity and whereabouts are known or who can otherwise be picked up later, can properly be left until then. Even when the suspect is likely to get clean away if not stopped there and then, arrest at every cost is not warranted.
As Kriegler made clear in Walters (in a passage obviously missed by the Minister): “It can therefore hardly be said to be justified to shoot a suspect where there is no suggestion of a threat to anyone“. But that is what the amendments would sanction. Instead of requiring a police officer in each case to make a decision about the degree of force necessary (if at all) to effect an arrest, it gives a blank cheque to shoot all people suspected of committing crimes that might have entailed the threat of serious violence – as long as that would be the only way to arrest the suspect.
Nowhere in the Walters judgment does Kriegler state that it would always be lawful for a police officer to use deadly force when it would be necessary to arrest a person suspected of committing a crime potentially involving violence. Where the Minister got this idea from is a mystery. Maybe that is what they used to teach in the Criminal Procedure class at Leipzig, but that is not what our Constitution allows. No matter what the Minister now claims, the draft as it stands will not pass constitutional muster.
The reason why these amendments are so dangerous is that it will take us back to a time before the advent of democracy when the police was generally feared instead of respected by the population because they were a law unto themselves. As we have seen police killings have been on the rise. The latest figures, tabled in Parliament in June 2009, revealed that 556 suspects — including 32 innocent bystanders — were shot and killed by police between April 2008 and March 2009. In 1996 the police shot and killed 380 civilians.
Surely if these amendments are allowed to go through we will soon be back to the kind of indiscriminate killing by the police during the apartheid era. In 1985 the police shot and killed 763 people. HOw long before we are back at that number again?
My guess is that Radebe is purposely misreading it, all along having planned to use the 3 b’s as rationale(?). Bullshit Baffles Brain, something which is now significantly common.
I think your selective Maths is misleading.
Police shootings have escalated as you say from 380 to 556.
That’s an increase of 46% over 13 years and off a very small base.
It sounds a lot but has to be balanced against the increase in crime over the last 13 years which is way bigger than 46%. One would expect a proportional increase in shootings with an increase in crime. How long before we reach 763 you ask ? It’s simple to calculate. If crime carries on increasing at the current rate, it will take about 13 years !
I’m not saying I agree with the proposed changes, I just disagree with your mathematical interpretation.
John Roberts, what you miss is that in this period section 49 of the Criminal Procedure Act was held to be unconstitutional and was replaced with one that makes it much more difficult for police to shoot and kill suspects. Even if violent crime is going up, one would expect the law to have had an influence. It did not. My question is whether, in the absence of the constraints placed on the police by the current section 49, there might not be a rapid increase in civilians (many of them innocent civilians at that) being killed by the police – given the high crime rates, poor police training and statements by politicians that exhort police officers to shoot the bastards.
Thanks for the explanation. You are right, I missed it. Your blog has popular appeal far beyond mere legal practitioners !
I am not a student of the law and your explanations are much appreciated by common citizens.
@Pierre
I think that the real danger is that if enacted in law, these proposed amendments could allow for the formation of death squads and give rise to (more?) politically motivated killings (uinder the guise of apprehending suspects) such as we had in the past pre 1994, and countries like Brazil and Argentina have had in their recent past.
If this sounds far fetched and alarmist, just look at the alleged (politically motivated?) unsolved murders of political personalities in Mpumulanga and Limpopo.
Your take on this?
Leigh?
Prof De Vos – Why do you keep on leaving the paragraph from Walters on which the amendment is based out of the equation? It reads:
“(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.”
In yesterday’s post you merely brushed this argument aside by saying that para (h) was quoted (used) out of context to justify the amendment. Today, you merely say Radebe (don’t get me wrong, I am no fan of this gentleman) might have seen something in the judgment that you didn’t. However, as I read para (h) from the Walters judgment, such a ‘limitation’ on a shoot-to-kill provision might well pass constitutional muster, provided that there is no other reasonable means to effect the arrest, whether at the time of the attempted arrest or later. I cannot see anything unconstitutional in the (propsed) amended provision.
@Pierre.
This is a very interesting topic, and it is great that Pierre raises this with such eloquence. The general panic about crime in South Africa is rendering South Africans short sighted, and this amendment is clearly a dangerous short term solution, whose long term impacts on our criminal justice system is gravely severe. This is the beginning of the erosion of civil liberties. What is becoming clear to me is that South Africa lacks discourse on civil liberties. There seem to be an idea that the state is always acting in the interest of the people, hence we see no need to keep checks and balances in relation to conducts of the state. This result in the situation where individual liberties are triumphed upon in the interests of the “common good”, strictly defined by the state. The idea of individual liberties has not gained resonance in our society.
Anonymouse, the problem with your reading – as I see it – that it fails to take into account the reasoning of the court and focuses (completely out of context) on a paragraph which in any case does not say what you claim its says. The Walters judgment centred on the limitation clause and found that legislation which allowed police pofficers to shoot and even kill suspects limited various constitutional rights. While a provision that allowed the police to the shoot (and even kill) a suspect could be constitutionally valid, this could only be the case in the most extreme cases. That is why, in its summary, the court states that “[w]here force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used” and “in deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account”. The proposed amenment does away with this and allow a police officer not only to use force in arresting an officer (as stated in the paragraph that you quote) but also to kill that suspect – even where such a killing would not be reasonably necessary, given all the facts at hand. The police officer would now not have to take into account all the relevant factors before decideing whether it would be reasonably necessary to use deadly force. All he or she need to do is to ask whether (i) 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 (ii) to deterime that there are no other reasonable means of carrying out the arrest, whether at that time or later. What about a case – say – where the suspect is known to the police and it would have been possible to arrest that suspect later. Now they would be able to kill that suspect if he resists arrest, something not allowed by Walters.
Also, the amendment can hardly be squared with the statement by Kriegler quoted above that “It can therefore hardly be said to be justified to shoot a suspect where there is no suggestion of a threat to anyone”.
Prof De Vos – “All he or she need to do is to ask whether (i) 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 (ii) to deterime that there are no other reasonable means of carrying out the arrest, whether at that time or later. What about a case – say – where the suspect is known to the police and it would have been possible to arrest that suspect later.”
This is exactly where you fail to read the rest of the propsed section 49(2). As I have indicated under the previous post yesterday, that is not all the requirements that must be met. Firstly, there must be either a reasonable suspicion or a warrant of arrest that may lead to an arrest. It must secpondly be clear that the suspect is aware of the attempt to arrest him (“when it is clear that an attempt to arrest him … is being made”). Third, it must be clear to the arresting officer that the suspect is resisting / fleeing with a view to flout the arrest. In the fourth place, the force used must “be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing”. And only then, is it stated that deadly force may be used ONLY if the arrestor believes on reasonable grounds either of the two requirements is present, and, in case of (ii) mentioned mby you, the arrestor would also be required to establish that “there are no other reasonabvle means of carrying out the arrest, whether at that time or later”. That is consistent with Walters (and the paragraph that I am quoting above, which do not think is out of context in the circumstances that I mention).
Let me kick off by saying that the Professor has covered most of the bases here. So my points will draw fairly heavily from what he has already made out. I have three points to make: first, in the light of Kriegler J’s lucid opinion, it seems quite clear that the draft amendment is overbroad – I would just add that I hope Johan keeps on ticking and he has to know that some of us appreciate him. Secondly, I, for one, am through giving Jeff the benefit of the doubt: it is too kind by far to Radebe to suppose that he can read law and simply chooses not to for reasons which go to expediency. It seems the better view has to be that Jeff skipped class and got through his law degree on the strength of dumb luck and strong prayers. Thirdly, I want to make a suggestion below. But I make it hesitantly because it bears upon taxes and I fully understand that many South Africans will get sort of miffed about that.
Kriegler’s jurisprudence is, as I said earlier, pretty bloody clear: cops can use force. But they certainly don’t enjoy carte blanch. And when seeking to secure an accused person’s attendance at court, cops are required to engage in a straightforward enquiry: “One, do I need to use force to secure this person’s attendance at court and two, if so, what is the smallest measure of force needed to do so?” There is, as many of you will already know, a marked difference between what Johan had in mind on the one hand, and what negotiated its way through Jeff’s skull on the other.
It is sad (although predictable) that Jeff would miss that. I mean the Minister is not the keenest, most well-balanced arrow in the quiver – not by any means. But truly, what sort of government are we dealing? In a nut shell, we can rely on our Minister of Constitutional Development misconstruing the Constitution. I know my point here is not a sophisticated one. But pretensions to keen logic aside, Jeff’s failings are offensive at a very basic level.
And that brings me to the third of my points – the one that (a) bears on taxes and thus (b) caused me to consider, with all sincerity, whether I should make this point in a country governed by a hapless crew that hardly makes it worth everyone’s while to pay taxes. My point is this: maybe we need to pay more in the way of taxes. And the additional monies going into the public purse could be used to finance the Minister’s much needed return to university. We can even call it the send-Jeff’s-ass-back-to-law school tax. I mean it could be that we would all benefit from it in the wider order of things.
I come from neither a law or political background so I might be out of my depths commenting on this article and some of the comments. However, to me the biggest point that Jeff Radebe is missing is that surely the first hurdle to overcome in the fight against crime is the underfunding and lack of proper training within the SAPS. Well trained and equipped policemen will handle potentially dangerous situations more effectively than undertrained ones and more readily identify threats to innocent third parties and would in all likelyhood not find the need to kill suspects even if justfied by the law. Train and fund the police properly first and them talk about giving them more power. The draft amendments are dangerous and although the intention is to provide more protection to the police (which I’m sure we all feel is necessary) the real effect will be to put the public at risk from criminals and the police alike.
Richard, you may lack a formal background in law, but believe me, you could teach Jeff a great deal about how to lawyer. You have, in a nut shell, considered whether Jeff’s understanding of the problem is correct. You have offered a far stronger view as to why crime statistics continue to soar than he has. And in addition, you articulate what’s wrong with Jeff’s characteristic display of thoughtlessness and you offer a solution to your statement of something which is problematic. Whatever your background in critical analysis may be (and lawyers certainly do not boast the lion’s share of skill at thought-work) you have done a job which is both sound and far beyond our hapless Minister.
I agree Leigh with your assessment of Richard M’s comments. I’ve long believed that there isn’t a challenge faced by South Africa for which there isn’t a practical answer and effective policy capable of being developed and implemented, just no political will, real interest or modern intelligence by our national government. Just infighting and personal struggles for power, questionable wealth and self seeking influence. Over grown children at play, actually. RM just gave a perfect example, which if implemented would produce positive results.
Sad, its all so sad, always the lowest common denominator chosen by the ANC with respect to dream on solutions which they offer only for appearance. So much could actually be accomplished.
Sirjay, I like that term,’dream on solutions’. I also congratulate you on your restraint. Your chosen terminology is both accurate and far more polite than the term “brain-fart solutions’ that I would have chosen. But in truth, that’s what Jeff does: he reckons he can offer fig dreams and brain-farts in response to criticisms. Jeff is so far out of touch with the dictates of constitutional democracy that I start to see the sense in the Professor’s suggestion that Jeff may have spent too long studying with the Reds.
Lets give credit where credit is due: The only reason Radebe is mentioning Walters is because Pierre spanked the ANC for its oversight of Walters in the blogs around the ‘shoot to kill’ grandstanding.
Well done! That is progress.
I still do not think that the envisaged section 49(2) is overbroad in the light of Walters. Let me quote again from Prof De Vos’ own quote from Walters in his first post below:
“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.”
Now, if you do not read every one of these so-called “limitations” on the police’s right to use force during arrest, one would see that the envisaged section covers all of them, including paragraph (h), which must be read with paragraph (g) so as not to venture out of context. (I have quoted the envisaged section under the previous post below.) I fail to see how one can interpret the envisaged section as giving the police carte blanche. In fact, the section is written in such a way that, should a cop shoot and kill someone and he is subsequently charged (or an inquest is subsequently held), the shooter will carry the burden of proof to show that he had heeded all the requirements laid down in that section – not only that he suspected on reasonable grounds that the suspect had committed a violent crime and there is no better way than to shoot him in order to bring him to justice. Quite clearly, the envisaged section, read as a whole, requires the ‘proportionality test’ that Kriegler J was so at pains to try and circumscribe for the lawgiver to use when it corrects the previous section 49. I have highlighted all these requirements in the envisaged section both below (under the previous post) and above. I am also of the opinion that the limitations clause in the Constitution would save a reverse onus approach in such circumstances.
My question is again, why would Kriegler J (and therefore, the CC) have included both paragraphs (h) and (i) – resd with paragraph (g) – in his so-called “limitations” that should be imposed on a “shoot-to-kill” (I think this is the wrong terminology – but Prof and others keep using it to make their point) clause, if he didn’t think that both of those limitations should appear in the new legislation (together with all the priorly mentioned limitations)? Quite clearly, he didn’t intend that only the right to private defence should be included – by the way, the common law already does that – but also the right to shoot people trying to evade justice when they are suspected of having cpommitted a serious violent crime. In fact, by including private defence in section 49(2), the shootist will have to meet more stringent requirements (bearing the onus of proof) than what he would have enjoyed under common law – which is a limitation on the state’s use of force.
I think the envisaged section will pass as it is.
Oh, I forgot – paragraphs (g), (h) and (i) in Kriegler’s guidelines should also be read with all the preceding paragraphs, including paragraph (f), which again highlights that all factors should be taken into account, also protection of the arrestor and others and the kind of offence the suspect appears to have committed, which is what paragraphs (h) and (i) is all about. The word “unless” following the phrase “[o]rdinarily such shooting is not permitted” in paragraph (h) is especially significant – it means that, if the qualification following the word is being met, the shooting of a suspect is permitted. In other words, where “the suspect poses a threat of violence to the arrester or others OR is suspected on reasonable grounds of having committed a crime involving the infliction 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” shooting of the suspect is permitted, provided, of course, that the other requirements regarding the weighing-up of the rights of the suspect and society in the so-called proportionality test are also complied with.
Including paragraph (h) in the envisaged amendment of section 49(2) is therefore NOT out of context as suggested by Prof. But let me be very clear on my viewpoint, it will bring one nowhere to have a myopic view of the inclusion of paragraph (h) only to determine whether the provision is overbroad, one must also look at all the other requirements preceding (and included in) the paragraph pertaining to the kind of crime the suspect is being sought for – the cumulative effect of which I feel would save the section if promulgated.
Leigh: I like the term brain farts, hadn’t heard that before. My children, adult children though they may be, would love this. Gas, bullshit gas; it seems you are suggesting or acknowledging that the nonsense they spout is a gaseous delusion without the nourishment of garlic and beetroot, if I understand you correctly, brain gas as when the pressures of guilt, defensive self doubt and spin arise and produce pressure which must be released. I gather it emits from the mouth. Could we think of it as politically ‘bad breath’?
Why are we debating this when the police already have a standing order from their chief: shoot the bastards! Or is the proposed statute an ex post facto ratification of the standing order?
Innocent before proven guilty. Isn’t that the ideal? Better that a guilty man/woman be released than an innocent man/woman be incarcerated or executed. I believe this is the original intent of the law about innocent before proven guilty.
In the US, in a number of states, with the advent of DNA testing exactly 50% (interesting, right?) were subsequently proven to have been convicted and executed for a crime they didn’t commit. Just another victim. Pity.
Democracy is all about giving the benefit of the doubt before judgment, rather than arbitrary, cruel, personally motivated, or political connivance. Try not to forget all those who were burned at the stake, drawn and quartered, or those who had limbs, under torture, individually burned away one at a time. Can you imagine?
We all know how questionable political judgment is. The one saving grace within the law is innocent before proven guilty. The shoot to kill negates this completely, apart from the civilian innocents who suffer in the cross fire.
Never give the state the right to kill. If you doubt this, then read your history books or look to the quality of government world wide.
Annonymouse, the problem with your vreasoning is you conflate the use of force and the use of DEADLY force. The amenments give the police a blank cheque to shoot and kill anyone who is reasonably suspected of commiting a crime involving threats of violence if that person cannot be arrested on the spot. This is explicitly prohibited by Kriegler in the passage underlined in my Blog. As you conflate use of force and use of deadly force, you exclude the discretionary element – something required by the judgment.
Prof De Vos – that might be so “use of force” does not equal “use of deadly force”. However, in Kriegler’s judgment, he uses the word “shooting”, which act, by implication, holds the propensity of “killing” – thus “use of force” equals “shooting” eq
I was outsmarted before I could finish –
- thus “use of force” equals “shooting” equals “use of deadly force”.
When paragraph (h) of Kriegler’s judgment quoted above is read with paragraphs (f), (g) and, especially (i), and the equation above is kept in mind, it should be clear that Kriegler J did not only have the “use of non-deadly force” in mind when he formulated paragraph (h). To divorce paragraph (h) from paragraph (i) in order to say the one authorises the use of non deadly force only, while the other authorises the use of deadly force is simply not possible by any standards. As far as context is concerned, in one of the underlined passages you quoted above Kriegler J said that “it can HARDLY be said…”, not “it cannot be said at all…” . That is why all the paragraphs of the so-called “limitations” invented by Kriegl;ler J should be read as a whole, and not every one in isolation. Were that to be done, one can be accused of using parts of the judgment in isolation and out of context, but the envisagesd section 49(2) does not do that. The “discretionary element” is covered in the rest of the envisaged new section 49(2).
Maybe I’m too close to this…
I was shot at and I think that the current s49(2) is liberal enough. I’d love for it to be stricter as the police may always rely on private defence where their lives, or those of others, are under threat. Time and money is being wasted on the wrong things.
http://www.businessday.co.za/Articles/Content.aspx?id=95788
Bail and Parole, may be Cele has a point .
This has been an enthralling debate. Pierre, are you going to submit comment on the draft amendments?
I would like to publish your explanation of Walters on our website!
What is justice going to do about the white collar criminals that our hijacking our flats that we own? We can’t afford mafia style high court litigation which is done at our expense…what are you going to do to stop this injustice taking place daily?
We are sick & tired of paying while they are stealing.
Government must get involved because
1. We have no access to information
2. We are forced to pay high levies
3. We are forced to high special levies
4. We pay for services not rendered.
5. We are issued with summons for debt that we do not owe.
6. We are not allowed to make decissions when under administration with the new High Court judgement that was passed friday 20 May 2011
7. We are loosing our homes & have no recourse.
8. LRC has refused to help us
9. Legal aid has refused to help us.
10. Who will help us?
11. Government must get involved now & stop this in justice taking place when one man is ruling & ruining all our lives.
12. We demand justice!!!
What is justice going to do about the white collar criminals that our hijacking our flats that we own? We can’t afford mafia style high court litigation which is done at our expense…what are you going to do to stop this injustice taking place daily?
We are sick & tired of paying while they are stealing.
Government must get involved because
1. We have no access to information
2. We are forced to pay high levies
3. We are forced to high special levies
4. We pay for services not rendered.
5. We are issued with summons for debt that we do not owe.
6. We are not allowed to make decissions when under administration with the new High Court judgement that was passed friday 20 May 2011
7. We are loosing our homes & have no recourse.
8. LRC has refused to help us
9. Legal aid has refused to help us.
10. Who will help us?
11. stop this in justice taking place when one man is ruling & ruining all our lives.
12. We demand justice!!!