Better police training the key factor

2010-01-09 00:00

FORMER police inspector Eugene Clarence has been involved in a fierce court battle with the police in his attempts to be re-appointed.

Clarence remains adamant that he acted in self-defence  — as required by Section 49 of the Criminal Procedure Act  — when he shot and killed inspector Steve Thoka at a distance of 36,7 metres with his service pistol on November 12, 2004.

Thoka, whose blood alcohol content was recorded as 0,23 g per 100 ml, did not pay any attention to warning shots, but continued pointing his service pistol at Clarence and his three partners and assumed a shooting stance.

“I had to take a decision in a fraction of a second and then I fired. The circumstances in which I found myself met the requirements of Section 49,” said Clarence.

An arbitrator of the Safety and Security Sectoral Bargaining Council ruled that Clarence should immediately be reinstated. The police took the ruling to the Labour Court in Johannesburg.

Here Judge J. Francis found that it must have been clear to Clarence that Thoka did not intend to shoot at them. Francis referred the case back to the Bargaining Council.

Clarence now awaits a court date in the Labour Appeal Court to appeal against Francis’s verdict.

Werner Kruger, Clarence’s legal representative, believes that there is sufficient merit in Clarence’s case to fight the principle of whether he acted in self-defence, all the way to the Constitutional Court.

Deputy Minister of Police Fikile Mbalula told the parliamentary press gallery in Cape Town in November 2009 that the present provisions of Section 49 are “ambiguous”.

Mbalula said it is causing police officers to “die like flies” while they are having to do sums about whether they are entitled to shoot or not.

Police Minister Nathi Mthethwa shared Mbalula’s opinion, telling the National Press Club that Section 49 should be amended to “clear up a few uncertainties”.

“The explanations [of the ambiguities] are necessary in order to ensure that police officers will understand their responsibilities. When it is ready, police officers will be in a situation where they will be less uncertain about using force,” Mthethwa said.

In the same month, President Jacob Zuma said in a statement that the amendments are necessary so that police officers “will be clear” on when they may use deadly force.

According to Dr Johan Burger, senior researcher at the Institute for Security Studies (ISS), the second subsection of Section 49 provides for the use of deadly force.

“If there are reasonable grounds to believe that the suspect is threatening the life of the police officer, or any other person in the area, and will inflict serious bodily harm on someone, deadly force may be used.

“There is nothing in Section 49 or anywhere else in the Criminal Procedure Act that says you first have to warn the person or fire a warning shot.

“In common law any person, including a police officer, may appeal to self-defence if their life or the lives of others is being endangered,” Burger said.

Advocate Johan Engel­brecht SC agrees with Burger.

“If a robber is pointing an AK47 at a police officer, the police officer cannot first ask him to put down his weapon or fire a warning shot. The police officer will be shot dead before he has had a chance to pull the trigger,” said Engelbrecht.

He said the confusion among police officers about when they are allowed to shoot is being aggravated by political pronouncements that reveal ignorance about Section 49.

“These create the impression among police officers and the public that they have a free hand to shoot, while that is not the case.

“There is no golden rule that can be laid down about when police officers are allowed to shoot. Every crime scene is unique. Each time, there are unique circumstances that are the determining factor in the decision whether deadly force is necessary or not.”

Nantes Kelder, head of community safety at AfriForum, believes too many innocent people have been shot by officers in the past two years.

In April 2008, James-Thomas Geldart, a squash coach from Benoni, was shot in the genitals and shoulder by members of the Ekurhuleni Metro Police after he ignored a red robot because he was afraid he might be hijacked.

In August 2008, police officers mistook Jan Kotzé (48) and his wife, Millie (50), for house robbers and shot them in front of their home in Meyersdal on the East Rand shortly after their son, Stephan (21), and daughter, Janine (30), had been held captive by robbers in their home. Kotzé was shot 10 times in the chest and his wife four times in the stomach, but they survived.

Kelder said that despite these serious incidents, 2009 was characterised by “strong pronouncements” by politicians that police officers should answer “fire with fire” in the fight against crime.

Mbalula went as far as saying: “Shoot the scumbags” and added that it is “inevitable” that innocent people will die in the crossfire between police officers and criminals.

His remarks came barely a month after police shot and killed a 29-year-old woman from Ga-Rankuwa north of Pretoria because they thought the car she was in was a hijacked vehicle.

A month later, a police officer fatally wounded three-year-old Atlegang Phalane as he sat in front of a relative’s house in Klipfontein View, east of Johannesburg.

Engelbrecht says that while it is true that innocent people have always been in danger of dying in the crossfire between police and criminals, he believes the circumstances in which people are dying should be examined very carefully.

“The police cannot shoot innocent people unlawfully and then claim to have acted in self-defence. Everything points to the fact that self-defence or an emergency situation was not a factor in the shooting incident in which Atlegang was killed.”

According to Kelder, too many cases of abuse of power, incidents of wrongful shooting and arrests are occurring among police officers countrywide.

“It is clear to AfriForum that there are a growing number of police officers who do not possess the necessary judgment to decide when to arrest someone and when not to, yet they now have to decide within a split second whether to shoot or not.”

As an example, Kelder referred to a police officer who was involved in two wrongful shooting incidents and who, in reply to a question whether he knew when to shoot, said “No, but the sergeant knows”.

“AfriForum is also aware of police officers who have attended only three shooting practises during more than 15 years of service,” Kelder said.

He said better-trained police are more necessary than amendments to Section 49.

“There are many brilliant police officers who are well trained and who tackle their work with discipline and dedication. Unfortunately, there are also many incompetent police officers who are badly trained…” Kelder said.

Engelbrecht, too, believes that no purpose would be served by amending Section 49. “The amended Section 49 became effective as far back as 2002, but seven years later there are police officers who are still not sure what they may or may not do.

“As long as members of the police are not trained properly to know how to take a decision within seconds that could make the difference between life and death, then making the provisions of an act clearer won’t help in any way,” Engelbrecht said.

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