As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP