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
10 November 2009

Shoot to kill? Maybe some good will come of it

Yesterday a policeman allegedly shot and killed a three year old child sitting in the back of a car. Atlegang Phalane, 3, was hit by a bullet while seated in the backseat of a white Hyundai with his uncle, Bongani Mchunu, around 6pm on Saturday. The car was parked outside a relative’s house in Klipfontein View Extension 2, north-east of Johannesburg. Atlegang died instantly.

We all knew this kind of tragedy would happen. In fact, it has been happening for generations in our violent society. But for a while after the advent of our democracy and the renaming of the Police Force to the Police Service, most of us thought that it would come to an end. After all, members of a Police Service operating under the discipline of the Constitution are supposed to catch the criminals and not to shoot and kill innocent civilians. Everybody – so our Constitution promises us – has a right to life, bodily integrity and to be presumed innocent until proven guilty before a court of law.

Maybe we should thank the politicians who, with their careless talk, have alerted the media to the fact that the Police often shoot innocent civilians. They have been killing our mothers and fathers, our sons and daughters and brothers and sisters, our boyfriends and girlfriends, our community leaders and social movement activists in the name of upholding “law and order”.

Now, many of us are squeamish to confront the fact of widespread extra-judicial killing by our stressed and trigger happy police officers because we fear that pointing this out might embarrass the ANC government or give sustenance to the real criminals. As long as one of our own is not killed, we turn a blind eye to extra-judicial killings by the Police. This is either because we want to believe the Police behaves much better now than during the apartheid era (and to some extent they do) or because we want to cheer on the killings by the Police for teaching the “criminals a lesson” (if we fear “the criminals” and want to protect our lives and the wealth we amassed during apartheid).

But suddenly this complicit silence about the abuses of the Police have been shattered by the politicians. No wonder the chattering classes are so cross with the ANC politicians for blabbering on about the need for the Police to “shoot and kill the bastards”.  They have disturbed our hypocritical and complacent silence on this sensitive topic.

It all started last April when then Deputy Minister of Safety and Security, Susan Shabangu, told cops: “You must kill the bastards if they threaten you or the community. You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect.” Ever since, politicians have spoken about the need for the police to shoot “criminals” (by which they mean civilians suspected of committing crime and hence – like President Zuma – entitled to be presumed innocent until found guilty by a court of law) and members of the media have been reporting on horrific incidents where innocents civilians have been killed by the Police.

Of course, some politicians have been particularly brazen and stupid. Instead of allowing us to continue pretending the Police only shoot criminals and not innocent victims, the politicians have spoken about the need to amend section 49 of the Criminal Procedure Act to beef up the powers of the Police to defend themselves against armed criminals. To be fair, this talk of a need to amend section 49 is such nonsense that one wonders whether the politicians and the police commissioner who indulge in it have been smoking something they should not have. (Or maybe they indulge in one cup of tea too many before they speak on these matters?)

First, in terms of the common law, anyone (including cops and ordinary South Africans) acts lawfully if he or she shoots and kills somebody in self-defense. This means that if one’s life is actually threatened by someone else, one can shoot and kill the person endangering one’s life in order to save your own life. If one does so one would not have acted unlawfully and would thus not be guilty of any crime.

Second, section 49(2) of the Criminal Procedure Act provides the police with wide powers to shoot and even kill criminal suspects. The section reads as follows:

  • If any cop attempts to arrest a suspect and the suspect resists the attempt, or 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 the reasonable force necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.
  • A cop is also justified to shoot and kill a suspect when 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.

This means that if a cop arrests a suspect he or she can use appropriate force (short of killing the suspect) to effect the arrest if the suspect resists arrests or flees. It also means that he or she can shoot and kill a person reasonably suspected of committing violent crime if the Police officer reasonably believes that the suspect was dangerous and was likely to cause harm to someone if he or she was not arrested.

Cops cannot randomly shoot and kill civilians suspected of trivial non-violent crimes. Cops can definitely not shoot and kill anyone who was not made aware that the cop was trying to arrest him or her. When the police opens fire on the passengers in a car without having indicated to the passengers that they had to stop and that they were the subject of a potential arrest the individual member of the police is acting unlawfully and can be prosecuted.

But section 49 provides quite wide cover to Police officers to shoot anyone as long as a member of the Police can show that he or she had some suspicion that the individual had committed a crime, that the officer wanted to arrest the person and that the person fled or resisted arrest. Long before the politicians started nattering on about the need for the Police to be able to shoot and kill “criminals”, the Police killed hundreds of innocent South Africans every year. Those of us not killed by the Police have just not noticed. As long as the Police officer “only” shot poor and black men or women without friends in the media, and as long as the Police left the political VIP’s, the blond American tourists and the rich and well-connected alone, they would hardly ever be prosecuted for murder.

Maybe something good will still come out of this irresponsible talk by the politicians. Now that members of the media have discovered the shocking fact that us ordinary South Africans who are not blond and studying Actuarial Science at Stellenbosch University, are not related to Rugby players or the President, are not famous or well connected, that we are the regular targets of extra-judicial Police killings, maybe the Police will be trained to act like a Police Service and not like the members of a Police Force in a fascist state.

This will only happen if us ordinary citizens – the one’s who are the potential victims of Police violence – stand up and demand a responsible Police Service who are not trigger happy. Now, maybe if the Police accidentally kill a few Fifa representative speeding along the highway, or a few blond American tourists or USA consular officials, the media will really come to the party and something will be done. Meanwhile, be afraid, be very afraid. Our Police officers have guns (and bullets) and they are ready to shoot YOU.

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