Deadly force bill passed

2012-08-16 16:39


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Cape Town - The National Council of Provinces unanimously approved the Criminal Procedure Act amendment bill without debate on Thursday.

The bill provides guidelines on why and how force, and deadly force, may be used to carry out an arrest.

It is intended to bring section 49 of the act in line with the Constitution.

Parliament passed a new section 49 of the Criminal Procedure Act in 1998.

The old section provided that killing someone suspected of committing a schedule one offence - which includes treason, sedition, public violence, murder, culpable homicide, and rape - would constitute justifiable homicide if the person could not be arrested or prevented from fleeing in any other way.

However, the new section 49 did not commence for five years because the SA Police Service, and others, had problems interpreting it.

The Supreme Court of Appeal and then the Constitutional Court, in 2001 and 2002 respectively, ruled on the old section 49.

In the Constitutional Court case of the State v Walters, former Constitutional Court judge Johann Kriegler, for a unanimous court, explained in plain terms when, why, and how force and deadly force could be used when making an arrest.

These guidelines were incorporated into the amendment bill, providing legal certainty.

During debate on the bill in the National Assembly, which also passed it unanimously on May 23, Dene Smuts of the Democratic Alliance said the bill was a true reflection of the Kriegler judgment for the Constitutional Court, and was in part verbatim.

"Force must always be reasonably necessary and proportional in the circumstances, and deadly force, including shooting, may in addition be used only if the suspect poses a threat of serious violence to the arrester or another person or persons; or if the suspect is reasonably suspected of having committed a crime involving serious bodily harm, and there are no other reasonable means of arresting him at that time or later," she said.

It was necessary to remember that the purpose of arrest was to bring a suspect before court for trial, that the arrest was not the only means of achieving that purpose, nor always the best, and that arrest could never be used to punish a suspect.

"That is what the judge said, and that is what we therefore need our police, and ourselves, to observe," Smuts said then.

The bill now goes to President Jacob Zuma to be signed into law.

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