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

• Jurisdiction: South Africa
• 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
• Judgment Date: 21 May 2002
• Docket Number: CCT 28/01
• Hearing Date: 15 November 2001
• Counsel: P J De Bruyn SC (with him G J Joubert and B J Pienaar) for the first and second intervening parties. G J Marcus SC (with him M Chaskalson) for the interested party. G Bizos SC (with him B Majola) for the amicus curiae.
• Court: Constitutional Court

Kriegler J:

Introduction C

[1] This case concerns the constitutionality of statutory provisions that permit force to be used when carrying out an arrest. Chapter 5 of D the Criminal Procedure Act 51 of 1977 (the CPA) [1] makes plain that the purpose of arrest is to bring suspects before court for trial. It also specifies when and in what manner a person may be arrested. [2] Although the vast majority of arrests are carried out by police officers, not only they are authorised by chap 5 to arrest suspects. In given circumstances private persons may also carry out arrests, either on their own [3] or when called upon to assist a police officer. [4] E

[2] The crucial provisions are contained in two interrelated sections of chap 5. The first is s 39(1) which, in the course of prescribing the manner of effecting an arrest, provides that 'if the circumstances so require' the body of the suspect is to be 'forcibly' confined. This is then supplemented by s 49, which makes F more detailed provision for the use of force in effecting an arrest. It contemplates two situations where force may be used: (a) to overcome resistance to arrest by the suspect and (b) to prevent the suspect from fleeing. Subsection 49(1) governs the use of such force in principle, while ss (2) deals specifically with what it terms 'justifiable homicide'. This is how the section reads: G

'Use of force in effecting arrest

(1) If any person authorised under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person - H

(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. I

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(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 A 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.'

[3] Such a provision authorising the use of force against persons - and more particularly justifying homicide - inevitably raises B constitutional misgivings about its relationship with three elemental rights contained in the Bill of Rights. [5] They are the right to life, to human dignity and to bodily integrity. The Constitution commands the State and all its organs to respect, protect, promote and fulfil all of the rights protected by the Bill of Rights. [6] These particular rights are, insofar C here relevant, expressed in the following terms by ss 10, 11 and 12 of the Constitution:

'10 Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

11 Life D

Everyone has the right to life.

12 Freedom and security of the person

(1) Everyone has the right to freedom and security of the person, which includes the right -

(a)

. . . E

(b)

. . .

(c)

to be free from all forms of violence from either public or private sources;

(d)

not to be tortured in any way; and

(e)

not to be treated or punished in a cruel, inhuman or degrading way.

(2) Everyone has the right to bodily and psychological integrity, which includes the right - F

(a)

. . .

(b)

to security in and control over their body; and

(c)

. . . .'

[4] Although the centrality of these rights to the value system of the society envisaged by the Constitution is well-known, it would be G useful to recall what was said about them when first this Court had occasion to consider the constitutionality of a law that sanctioned the killing of human beings. I am referring to the death penalty case, S v Makwanyane and Another. [7] There the constitutionally-challenged law authorised the State itself to kill persons under a criminal justice system that permit- ted capital punishment. Here the challenge is to a law conferring on individuals trying to carry out a preparatory step in the system of H

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criminal justice the right to use force and even to kill. Also, the challenge in A Makwanyane was brought under the interim Constitution [8] while this case is concerned with the 1996 Constitution. Yet the parallels between the two cases are obvious and the differences in wording between the two Constitutions in respect of the rights in issue not really significant.

[5] In Makwanyane there were a number of other B considerations in issue and the individual concurring judgments each emphasised one or more particular features, but a thread that ran through all was the great store our Constitution puts on the two interrelated rights to life and to dignity. This, for instance, is what O'Regan J said:

'The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life, in the sense of existence, it C would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity. This concept of human life is at the centre of our constitutional values. The Constitution seeks to D establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society.

The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence - it is a right to be treated as a human being with dignity: without dignity, human life is substantially E diminished. Without life, there cannot be dignity.' [9]

[6] The particular poignancy of these values for South Africans was underscored in that case by Langa J. His remarks are particularly relevant in the context of the present case. This is what he said: F

'The emphasis I place on the right to life is, in part, influenced by the recent experiences of our people in this country. The history of the past decades has been such that the value of life and human dignity have been demeaned. Political, social and other factors created a climate of violence, resulting in a culture of retaliation and vengeance. In the process, respect for life and for the inherent dignity of every person became the main casualties. The State has been G part of this degeneration, not only because of its role in the conflicts of the past, but also by retaining punishments which did not testify to a high regard for the dignity of the person and the value of every human life.' [10]

For reasons that will become clear later, it would also be pertinent to repeat my colleague Langa J's reference to a famous United States Supreme Court case highlighting the principle that the State ought to H play an exemplary role, as well as his application of this principle to the role that our State ought to play in promoting a culture of respect for human life and dignity:

'Implicit in the provisions and tone of the Constitution are values of a more mature society, which relies on moral persuasion I rather than force; on example rather than coercion. In this new context, then, the role of the State becomes

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clear. For good or for worse, the State is a role model for our A society. [11] A culture of respect for human life and dignity, based on the values reflected in the Constitution, has to be engendered, and the State must take the lead. In acting out this role, the State not only preaches respect for the law and that the killing must stop, but it demonstrates in the best way possible, by example, society's own regard for human life and dignity by refusing to destroy that of the criminal. Those who are inclined to kill need to be told why it is wrong. The reason surely must be the principle that B the value of human life is inestimable, and it is a value which the State must uphold by example as well.' [12]

[7] The question whether s 49 infringes any one or more of these rights - and the consequential question whether such infringement can be justified under s 36(1) of the Constitution [13] - will be considered later, after C an outline of the factual and legal context in which these constitutional issues have arisen. It is also necessary to identify the parties and to mention a number of associated questions that have to be answered.

The factual context D

[8] It all started with a murder trial before the High Court at Umtata. The prosecution arose from a shooting incident in Lady Frere one night in February 1999 when the two accused, a father and son, shot at and wounded a burglar fleeing from their bakery. One or more of the burglar's wounds proved fatal, resulting in a murder charge to which the defence raised the exculpatory provisions of s 49(2). The prosecution disputed both the factual and legal foundation of this E defence, besides challenging the constitutional validity of the section on which it was founded. [14]

[9] The presiding Judge found the section inconsistent with the Constitution - and consequently invalid - to the extent that it legally F sanctions the use of force to prevent the flight of a suspect. [15] This, he found, is inconsistent with the suspect's constitutionally guaranteed rights to life and human dignity. The Judge also concluded that the...