Deadly force bill passed

2012-08-16 16:39

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.

  • joseph.vanvuuren - 2012-08-16 16:46

    HKGK... Now the police will get trigger happy!!!!!!!!!!

      fussed.anderson - 2012-08-16 17:28

      Lets see how long this takes to get signed(app his mind)now because of the shooting of striking miners////////????????????????????????

      rodney.overes - 2012-08-16 18:19

      Now we still need the death penalty for murder and rape, and don't come and say what about there human rights as they have given that up the minute they killed or raped as they did not think of the victims rights.

      michangel.justice - 2012-08-17 10:18


  • daniel.wood.3910 - 2012-08-16 16:48

    for 'knowledgable' members that has been in practice for years already.

  • bernpm - 2012-08-16 16:49

    "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;" Tell that to the murderer who stole a cellphone or a car !!

  • Die.Gemaskerde.Kussing - 2012-08-16 17:40

    The cops are the bigest criminal elements in the country. Now given the ability to silence any witnesses. Touche`

      john.barbarian.9 - 2012-08-17 03:36

      Exactly... Jaco Person never bribed a Traffic cop in Poch...and never dialied 10111. We all love you Jaco. Would you like to try abit being cop? Do you want to try to carry a buletproof jacket for 12 hours for a start? I know that driving with a blue lights and not to worry about speed tickets sounds a deal....but just put yourself in their shoes for one day of your life...and write again comment back to us. You dont know what means the fraze "The only easy day was yesterday". ... Tell this to the family of the policeman that was hacked to death in the recent riots in Marikana (Lonmin). They will agreed with you....for sure.

  • - 2012-08-16 17:45

    Seems it has already been applied at the mine.

  • vmeiring1 - 2012-08-16 17:46

    And for the house and farm owners?? Can we defend ourselves to the same level?????

      willemdaniel.venter - 2012-08-16 21:53

      This has nothing to do with defending yourself. The right to defend yourself with whatever force needed has never been questioned in SA law. This is about force used to effect an arrest. The new law does not differentiate between police and public. Any member of the public can also arrest a suspect under these same guidelines.

  • sa.taxboycott - 2012-08-16 18:09

    Great. Now pass a law that says that a homeowner/tenant can shoot anybody who breaks in to their houses.

  • nadia.deklerk.7 - 2012-08-16 18:09

    The police already abuses their power, what will this bring? Yes, criminals will be facing a hard time, but so will the the public.

  • mantsho.tlali - 2012-08-16 18:19

    l will be happy to see the Return of Death Penalty in SA, CRIME is so violent in SA, Those who rape must be sterilized, The same pain this criminals are causing to the people, must also get it too.

      antonio.soares.9081323 - 2012-08-16 20:50

      Do you know Mantsho that every single State in the US that applies the death penalty has a HIGHER violent crime/murder rate than any other State that does NOT have the death penalty? Don't believe me - Google it.

      jomardl - 2012-08-17 10:22

      Forget the US. Japan who also applies the death penalty has the lowest crime rate in the world. Other African countries who apply the death penalty have lower crime rate than SA. Even if it does not serve as a deterrent, it serves as justice.

  • paul.illingsworth.9 - 2012-08-16 19:17

    Actually before the constitution the said section gave the police more freedom to use deadly force. If you read what the judge said it can now only be used if the suspect is an immediate threat and cannot be reasonably traced at a later stage by other means. ie Police's hands are tied even more

  • crracker.crackerr - 2012-08-16 19:23

    Provided you have a properly enclosed property with potential victims inside you should have the right to kill the intruder on the spot. It must just be made clear that you have to prove it was a genuine case.

  • Hermann - 2012-08-17 07:02

    Makes one wonder why must there a police force. Rather spend that money building five star hotels for criminals.

  • andre.vandeventer.16 - 2012-08-17 07:03

    I like this new law because it means that I can commit a murder and then run away and the police may not use violence if I turn my back on them and run. If they do they will now be criminals (murderers) as well. My fellow murderers are very happy about this nice liberal law because we now we have even more rights than before!

  • Timmytomas - 2012-08-17 07:46

    This is going to turn to old regime's tactics.,namely "STATE OF EMERGENCY"God,Allah, all the gods help us.

  • boltonbarry - 2012-08-17 08:15

    So from an ex cops point of view..Nothing has really changed then

  • rod.seago.1 - 2012-08-17 09:03

    Can someone explain the inconsistency of our anti-death penalty system? We won't allow a proven, convicted, murderer to be put death at the order of a judge, because that is regarded in our modern society as being inhumane, and because no one has a right to kill another person. On the other hand we give a policeman, in the heat of the moment, at his own discretion, the right to shoot to kill. In other words the policeman can execute a death sentence without a trial at his own discretion but a competent court cannot. Further if the criminal was able to have a court trial, he would be regarded as an alleged criminal who is innocent until proven guilty. The reason given for the policeman's right to perform a "justifiable homicide" is because the alleged criminal is a danger to the policeman and the people present. But isn't the court convicted murderer also a danger to the society at large? The one in the short term of the moment, the other in the long term, particular if he is released on parole, as is the case in SA. So on the one hand an educated, qualified judge cannot give a death sentence, but a possible half educated, incompetent policeman can be both the judge, and the executioner of the alleged criminal who based on our constitution is innocent until proven guilty, and has a right to a fair trial. All this seems rather inconsistent to me. Perhaps our humanist friends, who so cherish their humane anti-death penalty stance can explain the inconsistency?

  • marius.koen.16 - 2012-08-18 16:10

    Tried it already out at Marakama.

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