SECTION 49 OF THE CRIMINAL PROCEDURE ACT, 1977: USE OF FORCE IN EFFECTING ARREST

SUMMARY Following a request by the Minister of Police, the Department prepared a Bill proposing an amendment to section 49 of the Criminal Procedure Amendment Act, 1977 (Act 51 of 1977), in order to bring it into line with the judgment of the Constitutional Court in the case of Ex parte: The Minister of Safety and Security and Others: In re the State v Walters and Another (2002(2) SACR 105 (CC) (Walters). Public comments were invited on the Bill and, following the evaluation of the comments, certain refinements were effected to the Bill. The Bill strives to enhance effective law enforcement by providing greater legal certainty to arrestors as to the circumstances under which force may be applied when attempting to effect an arrest, and the nature of the force that may lawfully be used in the course of an arrest.

SECTION 49 IN CONTEXT OF CPA Chapter 5 – Arrest – sections 39 to 53 S39 – Manner and effect of arrest* S40 – Arrest by peace officer without warrant S41 – Name and address of certain persons…arrest without warrant S42 – Arrest by private person without warrant* S43 – Warrant may be issued by magistrate or judge S44 – Execution of warrants S45 – Arrest on telegraphic authority S46 – Non-liability for wrongful arrest S47 – Private persons to assist in arrest when called upon* S48 – Breaking open premises for purpose of arrest S49 – Use of force in effecting arrest S50 to 53 – Procedure after arrest, offence of escaping, savings

S39: MANNER AND EFFECT OF ARREST (1) An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body. (2) The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant. (3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.

S42: ARREST BY PRIVATE PERSON WITHOUT WARRANT (1) Any private person may without warrant arrest any person- (a)who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1; (b)whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence; (c)whom he is by any law authorized to arrest without warrant in respect of any offence specified in that law; (d)whom he sees engaged in an affray. (2) Any private person who may without warrant arrest any person under subsection (1) (a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein. (3) The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorized thereto by such owner, occupier or person in charge, may without warrant arrest the person so found.

S47: PRIVATE PERSONS TO ASSIST IN ARREST WHEN CALLED UPON (1) Every male inhabitant of the Republic of an age not below sixteen and not exceeding sixty years shall, when called upon by any police official to do so, assist such police official- (a)in arresting any person; (b)in detaining any person so arrested. (2) Any person who, without sufficient cause, fails to assist a police official as provided in subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding R300 or to imprisonment for a period not exceeding three months.

OLD SECTION 49 (BEFORE ITS REPLACEMENT BY ACT 122 OF 1998) 49.(1)If any person authorised under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person─ (a)resists the attempt and cannot be arrested without the use of force; or (b)flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees, the person so authorised may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing. (2)Where the person concerned is to be arrested for an offence referred to in Schedule 1 or is to be arrested on the ground that he is reasonably suspected of having committed such an offence, and the person authorised under this Act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide.

NEW (CURRENT) SECTION 49 Existing section introduced by Judicial Matters Amendment Act, 1998, but- Only commenced in 2003 Main reason for delay in implementation was uncertainty within SAPS regarding interpretation and application of new section

WALTERS CASE (2002) Constitutional Court in Walters case declared (old) section 49 (2) unconstitutional and invalid Court explained purpose of section 49 and set out legal framework regarding use of force when effecting arrest

LEGAL POSITION SET OUT BY CONSTITUTIONAL COURT (1) (a)The purpose of arrest is to bring before court for trial persons suspected of having committed offences (b)Arrest is not the only means of achieving this purpose, nor always the best (c)Arrest may never be used to punish a suspect (d)Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest (e)Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used (f)In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances

LEGAL POSITION SET OUT BY CONSTITUTIONAL COURT (2) (g)Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only (h)Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later (i)These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person

PROVISIONS OF EXISTING SECTION 49 (1) Use of force in effecting arrest 49.(1) For the purposes of this section ‑ (a)'arrestor' means any person authorised under this Act to arrest or to assist in arresting a suspect; and (b)'suspect' means any person in respect of whom an arrestor has or had a reasonable suspicion that such person is committing or has committed an offence.

PROVISIONS OF EXISTING SECTION 49 (2) (2)If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and 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 such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if 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.

PROBLEM STATEMENT RE NEW SECTION 49 New section formulated in 1998, before Walters case was decided Criticised as being difficult to interpret and as equating use of force for arrest to law of self defence, leading to uncertainty among police officers regarding legitimate use of deadly force Viewed by some as narrower in application than the guidelines furnished by the Constitutional Court in Walters case since the Court made it clear that shooting to prevent a suspect from fleeing would be sanctioned if the suspect is reasonably suspected of having committed a violent offence (involving infliction of serious bodily harm)

AMENDMENT REQUESTED BY MIN OF POLICE SAPS argues that the effect of this provision is that— a police officer may not shoot at a suspected murderer or rapist (unless the police officer believes on reasonable grounds that the suspect is a serial murderer or rapist), or armed robber unless the suspect threatens the life of the police officer or another person at the time of the attempt to arrest the suspect an armed murderer or rapist who is fleeing without threatening anyone must be pursued by the police officer in order to catch up with and arrest the suspect, all the while running the risk of the suspect suddenly turning around and firing at the police officer the limitations imposed by section 49 on the use of deadly force when effecting an arrest are more restrictive than the criteria laid down by the Constitutional Court section 49 has given a "right to flee" to all those suspected criminals who are not suspected of being serial killers or rapists

AIM OF AMENDMENT Amendment aimed at bringing section 49 closely into line with wording used (criteria laid down) in Walters case Definition of “deadly force” inserted to promote clarity Paragraphs (a) to (c) of proviso replaced with wording following Walters case

AMENDMENT SUBMITTED FOR COMMENT: section (49)(1) 49.(1)For the purposes of this section─ (a)'arrestor' means any person authorised under this Act to arrest or to assist in arresting a suspect; [and] (b)'suspect' means any person in respect of whom an arrestor has [or had] a reasonable suspicion that such person is committing or has committed an offence; and (c)'deadly force' means force that is intended or likely to cause death or grievous bodily harm.

AMENDMENT SUBMITTED FOR COMMENT: section (49)(2) (2)If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and 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 such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force [that is intended or is likely to cause death or grievous bodily harm to a suspect,] only if 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; or (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] that the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later. [(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.]

COMMENTS RECEIVED We received comments on the Bill from 18 interested persons and institutions. It is notable that, although the invitation to comment on the Bill was specifically drawn to their attention, the organised legal professions did not submit any comment A number of commentators emphasised the need for adequate training of the members of the SAPS in the use of force. Having considered the legal arguments put forward in the comments, we made two changes to the draft Bill (as submitted for comment)

CHANGES MADE AFTER COMMENTS (1) We have changed the definition of "deadly force" in subsection (1) as follows: Original proposal: 'deadly force' means force that is intended or likely to cause death or serious bodily harm. Revised draft: 'deadly force' means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a person with a firearm.

CHANGES MADE AFTER COMMENTS (2) Proviso in subsection (2) changed as follows (changes indicated in red text): Provided that the arrestor [is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect,] may use deadly force only if [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] the suspect offers a threat of serious violence to the arrestor or another person; or (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] the arrestor suspects on reasonable grounds that the suspect [is suspected on reasonable grounds of having] has committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later. [(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.]

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