Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Pages: 120-137
• Citation: (2000) 13 SACJ 120
• Author: MG Cowling
• Published date: 24 May 2019
• Date: 24 May 2019

120

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SACJ • (2000) 13 • SAS

Criminal Procedure

MG COWLING

University of Natal, Pietermaritzburg

Arrest — use of force in effecting arrest

Section 49(1) of the Criminal Procedure Act confers upon any person

authorized to effect an arrest the right to use reasonable force in

circumstances where it is clear to the arrestee that an attempt is being

made to arrest him or her and the latter either flees or resists such attempt.

In

S v Janeke

1999 (2) SACR 360 (0) the accused was convicted in the

magistrate's court of attempted murder as a result of firing a number of shots

at a fleeing suspect. On appeal, the High Court accepted that the suspect was

known to the accused who was also aware that he was wanted by the police

on several serious charges. In addition the suspect was trespassing on

property of which the accused was in charge and had previously been

warned to stay off the said property.

The suspect ignored the warning and was subsequently discovered on the

property by the accused. Thereafter there ensued scenes not dissimilar to

those occurring in the average 'cops-and-robbers' movie. It commenced with

a warning from the accused to the suspect that he should not be on the

property followed by an instruction to the latter to climb into the accused's

bakkie. This was ignored. Thereafter the suspect turned around and

proceeded in the opposite direction with the accused hot on his heels in

his bakkie. The accused then warned the suspect that he was wanted by the

police and that the accused was going to ensure that he did not evade arrest

on this occasion.

This seemed to motivate the suspect to leave the road, jump a few fences

and hide in some long grass — still pursued by the accused. Owing to the

difficult nature of the terrain the accused determined that his chances of

apprehending the suspect were fast disappearing (along with the suspect)

and hence he decided to resort to the use of his firearm.

He started out by verbally warning the accused and then fired a few

warning shots. These failed to have any impact so he then aimed at the

suspects legs and succeeded in hitting his left foot as well as his flank.

Further facts found to be proved were that the accused had set out with the

initial motive of arresting the suspect. This was borne out by the fact that he

radioed his wife as soon as he discovered the suspect on his land and

instructed her to notify the police. In addition it was common cause that the

(2000) 13 SACJ 120

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accused was a good shot and that the telling shots were fired when the

suspect was in the region of 50 metres away. Thus the accused could have

shot to kill but the Court accepted that he aimed at the suspect's legs in order

that he could arrest him. It was also accepted that the accused could not have

been expected to await the arrival of the police since they had been

singularly in adept at apprehending the suspect in the past, with the result

that the suspect had successfully evaded them up until that stage —

notwithstanding that he was wanted for a wide variety of serious offences. In

fact, in the instant case they took in excess of fifteen minutes to respond to

the accused's call. In the result, the appeal succeeded and the conviction was

set aside.

What is surprising about this case is the fact that the accused was convicted

in the first place. On the contrary, if there existed a model procedure on how

s 49 should be applied it would be very difficult to fault the accused in this

case. After all, he commenced with a verbal warning that he intended

arresting the suspect, followed by an instruction to climb into the bakkie.

Thereafter several attempts were made to follow and physically apprehend

the accused before resorting to the use of a firearm. This latter occurred only

once it had been ascertained that it was not possible to physically apprehend

the suspect and his wounding was preceded by the firing of two warning

shots that were ignored. In addition the shots fired at the suspect were

intended to wound (rather than kill) him and this is what ultimately occurred.

Finally at all relevant stages the suspect was aware that the accused was

attempting to arrest him.

What more should the accused have done? It is submitted that the force

used was reasonable in order to effect the arrest and was hence not excessive

in the circumstances. In fact, since the suspect was being arrested for having

committed a Schedule One offence, if the accused had killed him during the

attempted arrest, a very good case could have been made out for deeming

such killing to be justifiable homicide in terms of s 49(2).

In

Govender v Minister of Safety & Security

1999 (2) SACR 706 (D & CLD)

the Court was called upon to consider the relationship between s 49(1) and

s 49(2) of the Criminal Procedure Act. In very basic terms s 49 deals with the

use of force in order to effect an arrest. Section 49(1) provides that an arrestor

may use such force as may in the circumstances be reasonably necessary to

overcome resistance or prevent an arrestee from fleeing when an attempt has

been made to arrest such arrestee.

Section 49(2), on the other hand, authorizes the use of deadly force in

cases where an attempt is made to arrest a suspect for the commission (or

reasonably suspected commission) of a Schedule One offence and where

such suspect cannot arrest him or prevent him from fleeing except by killing

him or her.

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