Ex parte Minister of Safety and Security and Others: In re S v Walters and Another

• Jurisdiction: South Africa
• Citation: 2002 (4) SA 613 (CC)

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another
2002 (4) SA 613 (CC)

2002 (4) SA p613

Citation	2002 (4) SA 613 (CC)
Case No	CCT 28/01
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Sachs J, Yacoob J, Du Plessis AJ and Skweyiya AJ
Heard	November 15, 2001
Judgment	May 21, 2002
Counsel	P J De Bruyn SC (with G J Joubert and B J Pienaar) for the first and second intervening parties.; G J Marcus SC (with M Chaskalson) for the interested party.; G Bizos SC (with B Majola) for the amicus curiae.

Flynote : Sleutelwoorde G

Criminal procedure — Arrest — Section 49(1) of Criminal Procedure Act 51 of 1977 — Words 'use such force as may in the circumstances be H reasonably necessary . . . to prevent the person concerned from fleeing' in s 49(1)(b) of Act, generally speaking (there may be exceptions), to be interpreted so as to exclude use of firearm or similar weapon unless person authorised to arrest, or assist in arresting, fleeing suspect has reasonable grounds for believing (a) that suspect poses immediate threat of serious bodily harm to him or her, or threat of harm to members of public; or I (b) that suspect has committed crime involving infliction or threatened infliction of serious bodily harm.

Criminal procedure — Arrest — Section 49(2) of Criminal Procedure Act 51 of 1977 — If accepted that firearm cannot be used to prevent flight in absence J

2002 (4) SA p614

of threat of serious bodily harm, use of deadly force and its exculpation under s 49(2) absent such threat cannot be sustained — One A needs to add a weighty consideration before lives of suspects can be risked by using firearm or some other form of potentially deadly force merely to prevent escape — Schedule 1 to Act fails in its fundamental objective of achieving realistic proportionality between serious and other offences — Schedule lists widely divergent rag-bag of some 20 B offences, ranging from really serious crimes with element of violence at one end of spectrum to relatively petty offences at other end — If due recognition given to rights limited by s 49(2) and extent of their limitation, resort to Schedule 1 in s 49(2) in order to draw line between serious cases warranting potential use of deadly force and C those that do not comprehensively fails test of reasonableness and justifiability postulated by s 36(1) of Constitution of the Republic of South Africa Act 108 of 1996 — Section 49(2) inconsistent with Constitution and therefore invalid — Order invalidating s 49(2) to be prospective only.

Criminal procedure — Arrest — Law relating to arrest — Purpose of arrest is to bring before court for trial persons suspected of having D committed offences — Arrest is not only means of achieving this purpose, nor always best — Arrest may never be used to punish suspect — Where arrest called for, force may be used only where necessary to carry out arrest — Where force necessary, only least degree of force reasonably necessary to carry out arrest may be used — In deciding what degree of force is both reasonable and necessary, all circumstances must be taken E into account — Shooting suspect solely in order to carry out arrest permitted only in very limited circumstances — Ordinarily such shooting not permitted unless suspect poses threat of violence to arrestor or others or is suspected on reasonable grounds of having committed crime involving infliction or threatened infliction of serious bodily harm F and there are no other reasonable means of carrying out the arrest, whether at that time or later — These limitations in no way detract from rights of arrestor attempting to carry out arrest to kill suspect in self-defence or in defence of any other person.

Constitutional practice — Constitutional Court — Referral in terms of G s 172(2)(a) of Constitution of the Republic of South Africa Act 108 of 1996 — Where possible to decide case without reaching constitutional issue, such the course to be followed — Trial Court adjourning criminal trial so that declaration of constitutional invalidity could be determined by Constitutional Court — Established principle that public interest served by bringing litigation to close H with all due expedition — Law and judicial process, in performing vital conflict-resolution role, has to provide structure and mechanism whereby conflicts can be resolved and their consequent tensions can be relieved openly, fairly and efficiently — Delays and interruptions in smooth course of litigation inevitably frustrate proper performance of this role: justice delayed is justice denied — All the more true in I criminal cases, particularly those involving serious charges where stakes are high and tensions commensurately heightened — Mere fact that constitutional issues arise in case do not justify piecemeal litigation.

Constitutional practice — Courts — Precedent and stare decisis — Application of to decisions on interpretation of Constitution of the Republic of South J

2002 (4) SA p615

Africa Act 108 of 1996 — Neither fact that under interim Constitution of the Republic of South Africa A Act 200 of 1993 Supreme Court of Appeal had no constitutional jurisdiction nor that under (final) Constitution of the Republic of South Africa Act 108 of 1996 it does not enjoy ultimate jurisdiction in constitutional matters warrants finding that its decisions on constitutional matters not binding on High Courts — It does not matter that Constitution enjoins all courts to interpret legislation and to develop common law in accordance with spirit, purport and objects of B Bill of Rights — In doing so, courts are bound to accept authority and binding force of applicable decisions of higher tribunals.

Constitutional law — Separation of powers — President given power to determine inception date of legislation — President not fixing such date due to misgivings by Ministry about legislation — Power to fix date for C inception of legislation conferred on President is public power and has to be exercised lawfully for purpose for which it has been given in enactment — It cannot lawfully be used to veto or otherwise block its implementation.

Headnote : Kopnota

The interpretation put on s 49(1)(b) of the Criminal Procedure Act 51 of 1977 by the Supreme Court of Appeal in D Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) (2001 (2) SACR 197), ie that the words 'use such force as may in the circumstances be reasonably necessary . . . to prevent the person concerned from fleeing' in s 49(1)(b) must, generally speaking (there may be exceptions), be interpreted so as to exclude the use of a firearm or similar weapon unless the person E authorised to arrest, or assist in arresting, a fleeing suspect has reasonable grounds for believing (i) that the suspect poses an immediate threat of serious bodily harm to him or her, or a threat of harm to members of the public; or (ii) that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm, is constitutionally sound and serves to save the subsection from invalidation. (Paragraphs [38] and [39] at F 635C - F/G.)

If the test in Govender is accepted as establishing the prerequisites to any use of a firearm, there can be little doubt that the same requirements should at the very least be preconditions to an arrestor who shoots and kills the fugitive. By like token, if the Supreme Court of Appeal's general warning against the use of a firearm to prevent flight in the absence of a threat of serious bodily harm is G accepted, the use of deadly force and its exculpation under s 49(2) absent such a threat can hardly be sustained. One needs to add a weighty consideration before the lives of suspects can be risked by using a firearm or some other form of potentially deadly force merely to prevent escape. Subsection (2) finds this additional consideration in the seriousness of the offence for which the fugitive is to be arrested. The mechanism chosen in ss (2) to maintain reasonable H proportionality with the use of deadly force was to draw a distinguishing line between lesser and more serious offences and to permit the use of deadly force for the arrest of fugitives suspected of having committed crimes in the more serious category only. This was done by introducing Schedule 1 to the Act and providing that lethal force may be legally warranted in arresting fugitives suspected of having committed one or other of these offences. But this line of I distinction fails in its fundamental objective of achieving realistic proportionality. The Schedule lists a widely divergent rag-bag of some 20 offences, ranging from really serious crimes with an element of violence, such as treason, public violence, murder, rape and robbery at one end of the spectrum to, at the other end, relatively petty offences, such as pickpocketing or grabbing a mealie from a fruit-stall. What J

2002 (4) SA p616

is more, the Schedule includes offences that do not constitute any kind of physical threat, let alone violence. If due A recognition is to be given to the rights limited by the section and the extent of their limitation, the resort to Schedule 1 in s 49(2) in order to draw the line between serious cases warranting the potential use of deadly force and those that do not comprehensively fails the test of reasonableness and justifiability postulated by s 36(1) of the Constitution of the Republic of South Africa Act 108 of 1996. The B protection due to the rights of a suspect fleeing from arrest cannot be lifted merely because there is to be an arrest for having committed one or other of the wide variety of offences listed in Schedule 1. The list is therefore simply too wide and inappropriately focused to permit a...