Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
5 March 2010

Jeff Radebe (LLM Leipzig) got it wrong again

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?

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