Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Date: 24 May 2019
• Author: Michael Cowling
• Pages: 75-89
• Published date: 24 May 2019
• Citation: (2003) 16 SACJ 75

Recent Cases

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75

Criminal Procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Arrest — use of force

Section 49 of the Criminal Procedure Act 51 of 1977 has had a long and

chequered history. In very basic terms it regulates (and sanctions) the use of

force in effecting an arrest. At the outset the use of any force to this end must

be conditional upon the arrester having the authority to effect the arrest in

the first place.

Thus s 49 comes into operation once an arrester is authorized to effect an

arrest, experiences resistance from the arrestee or where the latter flees.

Section 49(1) allows any arrester in such circumstances to 'use such force as

may in the circumstances be reasonably necessary to overcome resistance to

prevent the arrestee from fleeing'. Section 49(2) states that where the arrestee

is suspected of having committed an offence referred to in Schedule One of

the Act and the former 'cannot arrest him or prevent him for fleeing by other

means than by killing him, the killing shall be deemed to be justifiable

homicide'.

This, of course, is an extremely drastic measure since its practical effect is

that all that an arrester need establish is the following:

(a)

that the suspect is reasonably suspected of having committed a Schedule

One offence;

(b)

that the suspect is resisting arrest or fleeing;

(c)

that there are no other means of arresting the suspect other than by

killing.

Having satisfied these requirements the arrester is then entitled to kill with

impunity. This is irrespective of proportionality between the harm sought to

be overted and the degree of deadly force.

The constitutionality of this provision came before the Constitutional Court

in

Ex Parte Minister of Safety and Security; in re S v Walters

2002 (2) SACR

105 (CC) where it was held that this provision raised 'constitutional

misgivings' with three basic constitutional rights namely, the right to life,

human dignity and bodily integrity. As a result, the court (per Kriegler J)

posed the question as to how a balance is to be struck 'between the public

interest at which s 49 is aimed and the significant impairment of the rights

inherently put at risk by its implementation' (at 123h).

(2003) 16 SACJ 75

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