An analysis of the wording, interpretation and development of the provisions dealing with the use of lethal force in effecting an arrest in South African criminal procedure

• Jurisdiction: South Africa
• Date: 06 September 2019
• Author: Andra le Roux-Kemp
• Citation: (2011) 24 SACJ 266
• Published date: 06 September 2019
• Pages: 266-282

An analysis of the wording,

interpretation and development of

the provisions dealing with the use

of lethal force in effecting an arrest

in South African criminal procedure

aNDra le rOUX-KeMP* & craiG s HOrNe**

aBstract

Since the f‌irst introduction of a provision deali ng with the use of (lethal)

force i n ef fecting an arrest in South African criminal procedure i n 1917,

the provisions have been amended a total of four t imes with a possible

f‌ifth amendment so on to b e passed in terms of the Criminal Procedure

Amendment Bill B39 – 2010. In this article the word ing, interpretation and

development of the provisions from its common-l aw roots and the f‌irst

provision in the 1917 Act to the latest proposed amendment will be analysed

and compared.

1. Introduction

With the recent proposed amendments to section 49 of the Cri minal

Procedure Act 51 of 1977 dealing with the use of lethal force in effecting

an arrest (Criminal Procedure Amendment Bill B39 – 2010), this

controversial provision has certainly become one of the most amended

provisions in the history of South African cri minal procedure. Since

its initial int roduction by the legislator in the Cr iminal Procedure and

Evidence Act 31 of 1917, this provision has been amended a total of

four t imes with a possible f‌i fth amendment on the horizon. In this

article the development of this provision, from its f‌i rst enact ment in

the 1917 Act to the proposed amendments of the 2010 Amendment Bill

will be discussed to provide an informed overview of the development

of the law of criminal procedu re in this regard.

The analysis will commence with a short discussion on the early

history and development of the concept of lethal force in effecting

an arrest, whereafter the relevant provisions of the 1917 Criminal

Procedure Act and a chronological expo sition of the m ajor amendments

* BA, LLB, LLD (Stell), Part time Lecturer, Stellenbosch University.

** LLB (UWC), LLM candidate and Graduate Learning assistant, University of the Western

Cape.

266

(2011) 24 SACJ 266

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to this par ticular provision in the Sout h African law wi ll be analysed.

This exposition will include a discussion of section 37 of the Crimi nal

Procedure Act 56 of 1955 and the relevant provisions of the Cr iminal

Procedure Act 51 of 1977. With regard to the latter Act, a fu rther

demarcation will be made between the period before and after the

establishment of South Africa’s constitutional democracy, and the

amendment provision in sect ion 7 of the Judicial Second Amendment

Act 122 of 1998. The analysis will conclude w ith a critic al discussion

of the amendments propo sed by the Crim inal Procedure A mendment

Bill 2010. The provisions of the Amendment Bill are aimed at clearing

up alleged ambiguity i n section 49 of the present Criminal P rocedure

Act 51 of 1977, and if promulgated, may provide police off‌icial s with

extensive powers to use lethal force.

2. The early history of the use of lethal force in ef fecting

an arrest

Cowling, citing Milton, submits that the use of lethal force in effecting

an arrest has its roots in ‘… primitive institutions of the English

common law …’1 The two main i nstitutions in Engl ish common law

that form the basis of this provision are the system of outlawry and the

concept of felony. Outlawry, according to Milton, is ‘a crude system of

law enforcement’ whereby those that committed serious offences were

regarded as being at war with the communit y and were thus declared

to be outside the protection of the law.’2 It was then ‘the duty of every

citizen to track down and kill those that were declared to be outlaws.’3

The concept of felony, on the other hand , referred to crim inal acts of

a particularly reprehensible nat ure,4 which were punishable by the

death penalty.5 Milton argues that it was because the lives of outlaws

and felons were effectively declared to be forfeit that deadly force was

warranted in effecti ng their arrest.6

1 M Cowling ‘The licence to f‌lee? Recent restrictions on the use of deadly force in

effecting an arrest’ in SV Hoctor and PJ Schwikkard (eds) The Exemplary Scholar:

Essays in Honour of John Milton (2007) 103; JRL Milton ‘Ultima ratio legis: The use

of deadly force in effecting arrests’ in JA Coetzee (ed) Gedenkbundel: HL Swanepoel

(1976) 142. Milton argues that the use of deadly force in Roman-Dutch Law primarily

dealt with situations where one had to protect one’s property and not where the

main object was to effect an arrest. However, Rumpff CJ refers to Van der Keessel’s

Praelections ad Jus Criminale in the case of Matlou v Makhubedu 1978 (1) SA 946

(A), where it is held that the use of deadly force to effect an arrest is only warranted

in cases of self-defence.

2 Cowling op cit (n1) 103 citing Milton op cit (n1) at 142.

3 Cowling op cit (n1) 103 citing Milton op cit (n1) at 142.

4 For example robbery, arson, rape and homicide.

5 Cowling op cit (n1) 103 citing Milton op cit (n1) at 142.

6 Cowling op cit (n1) 103 citing Milton op cit (n1) at 143.

An analysis of the wording, interpretation and development of the

provisions dealing with the use of lethal force in effecting an arrest

in South African criminal procedure 267

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