Deputy Speaker and hon Deputy President, section 11 of our Constitution decrees that "Everyone has the right to life."
Section 49 of the Criminal Procedure Act, Act 51 of 1977 determines the circumstances in which a police officer may use force in arresting a suspect, and the extent of the force that may be "reasonably necessary" in the circumstances.
In 1998 this Parliament approved the text that is being amended by the Bill before us. In 2002 the Constitutional Court, in the State v Walters judgment, declared section 49(2) of the old text as being unconstitutional. In the meantime the use of lethal force by the members of the South African Police has caused much controversy and created legal uncertainty.
In order to address that uncertainty, the portfolio committee has agreed that the new section 49 be aligned with the criteria laid down by Justice Kriegler of our Constitutional Court. These are: that the purpose of arrest is to bring before court for trial persons suspected of having committed offences; that arrest is not the only means of achieving this purpose, nor always the best; that arrest may never be used to punish a suspect; that where arrest is called for, force may be used only where it is necessary in order to carry out the arrest; that where force is necessary, only the last degree of force reasonably necessarily to carry out the arrest may be used; that in deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account and such force must be proportional in all those circumstances; that shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only; that ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrestor or others, or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm, and there are no other reasonable means of carrying out the arrest, whether at that time or later; and that these limitations in no way detract from the rights of an arrestor attempting to carry out an arrest to kill a suspect in self-defence or in defence of another person.
The portfolio committee was also of the unanimous view that, regardless of how eloquently or elegantly section 49 may be drafted, at the end of the day it all comes down to one thing: training, training and more training. Members of the portfolio committee expressed concern at the adequacy of training police officers receive, particularly in the use of firearms and the circumstances in which the use of deadly force is justified. Consequently, a definition of deadly force has been inserted in section 49(1). The portfolio committee was unanimous in its approval of this Bill, and we commend it to this honourable House. Thank you. [Applause.] There was no debate.
Declarations of vote:
Deputy Speaker, the old section 49 of the Criminal Procedure Act provided that killing someone suspected of having committed a Schedule 1 offence would be justifiable homicide, if he could not be arrested or prevented from fleeing in any other way. The Constitutional Court ruled on the old section 49 in 2002. As you have heard, hon members, Judge Kriegler, for a unanimous court, took the trouble in State v Walters to tabulate in plain terms when, why and how force and deadly force might be used to effect arrest. Our amendment relies on these guidelines for the sake of legal certainty.
Let us remember that the Constitution means what the Constitutional Court says it means. We uphold the power of judicial review and the separation of powers, and we must abide by its rulings.
Our only task as a committee, therefore, was to ensure that this amendment was a true reflection of the Kriegler ruling and tabulation. It is a true reflection, and it is in part, in fact, verbatim.
Force must always be "reasonably necessary and proportional" in the circumstances, and deadly force, including shooting, may in addition be used only if "the suspect poses a threat of serious violence to the arrestor or any other person" or persons, or if the suspect is reasonably suspected of having committed a crime involving serious bodily harm and there are no other reasonable means of arresting him at that time or later.
Let us remember also that this is not just about the police. Citizens' arrests are also governed by this section; it therefore directly affects every one of us here and everybody outside. So, let us remember then that the purpose of arrest is to bring a suspect before court for trial, but that it is not the only means of doing that, that it may never be used to punish a suspect. That that is what the judge said, and that that is what we therefore need not only our police to observe but also we ourselves, should we come into a situation where we need to effect an arrest. [Applause.]
Thank you, Deputy Speaker. Hon Minister, the use of the lethal force by law enforcement authorities has always been a very controversial issue. Whilst the ACDP fully supports the usage of lethal force for self-defence or in defence of another, it becomes far more difficult when it involves using lethal force to arrest someone. Section 49 of the Criminal Procedure Act sets out the circumstances when such force can be used and the degree of force that may be reasonable and necessary under the circumstances.
This amendment, as other speakers have pointed out, follows the Constitutional Court ruling in the Walters decision that sought to bring legal certainty to the issue. The court had to strike a balance between the public interest, at which section 49 is aimed, and the impairment of the right to life, and it stated that, and I quote:
The debate is coloured by our history of state violence being used to enforce repressive policies, the state often being personified by armed policemen. Today the debate is given added pungency by the high level of violent crime that often targets the police.
We in the ACDP are also mindful of the high number of police shot dead by the criminals and, of course, by the high number of civilians that are shot dead by the police, with the brutal killing of Andries Tatane foremost in our thoughts.
In this regard the court has emphasised that shooting a suspect solely to carry out an arrest "is permitted in very limited circumstances only", and then sets out these circumstances. These circumstances have now been set out in this amendment Bill and, in fact, the Bill went further and added the words that the force "must be reasonably necessary and proportional in the circumstances". We, as the ACDP, believe that this will provide legal certainty.
The following must be borne in mind. I have done many court cases involving police shootings and the police officers have to take that decision in a split second. Later courts can sit back with an armchair approach and consider that decision that was taken in a split second.
In supporting this amendment we, as the ACDP, are mindful of the serious deficiencies in police training and we, like others, were shocked to learn about the high number of officers who had not yet successfully completed their firearm proficiency tests. The training and assessment of all skills of officers in the use of deadly force must be prioritised.
There must also be effective reporting and review processes for all incidents. I say effective processes for those incidents where deadly force is used, including a provision for the role and responsibilities of supervising officers at the scene of the shooting. Of course, the control, storage and issuing of firearms leave much to be desired and must be improved.
Once one has looked at this, we believe that this Bill will go a long way in this matter. What is significant in the Walters decision is that the Minister of Justice and Constitutional Development and the Minister of Police had opposing views, and the court has now given guidance. It is interesting that we, as members of the Portfolio Committee on Justice and Constitutional Development, are here supporting a Criminal Procedure Act that basically has to deal with the police. The ACDP will support this Bill. Thank you. [Applause.]
Thank you, hon Deputy Speaker. The purpose of the Criminal Procedure Amendment Bill is "to substitute and align the provisions relating to the use of force in effecting arrest of a suspect" with the Walters decision.
The Bill seeks to amend section 49 of the Criminal Procedure Act which sets out the conditions under which the police may use force when effecting an arrest. The previous section 49 provided for the use of force where the arrested person resists arrest and/or attempts to flee. It prescribes that the force used should be:
... reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing ...
This section further provides for the use of deadly force in three instances. In the first instance, the arrestor believes that the use of deadly force is immediately necessary in order to protect himself or herself or any lawful person assisting him or her or any other person "from imminent or future death or grievous bodily harm".
In the second instance, the arrester believes:
... that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed ...
In the final instance, the arrester believes:
... that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.
Now, one will note that it is extremely difficult to prove these subjective requirements. Hence, amongst others, the police raised serious concerns regarding the interpretation and application of these prescriptions. This view was confirmed by the judgment in the Walters case, which declared section 49 unconstitutional and invalid.
The case assisted in providing the limited circumstances under which the use of deadly force would be permissible. It emphasised that the purpose of effecting an arrest is not to punish but to bring to court the suspect who is suspected of having committed an offence. Hence it is in this spirit that section 49 provides that deadly force may be used only under the two following circumstances:
... the suspect poses a threat of serious violence to the arrestor or any other person;
And, secondly:
... the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.
The Bill gives the proviso that generally the use of force should be "reasonably necessary and proportional in the circumstances".
The committee is of the view that it has complied with the Constitutional Court's decision on Walters and has brought section 49 of the Criminal Procedures Act in line with the Constitution. This is precisely because the limited circumstances under which deadly force may be used are derived directly from the Walters judgment itself.
The amendment brings clarity as to the use of force in circumstances under which deadly force may be used to effect an arrest. We are confident of the constitutionality of this amendment. The ANC supports the Bill. [Applause.]
Bill read a second time.
Order! Before we continue with the next Order, I wish to remind members that of the five members elected to the Pan-African Parliament three are nominated from the majority party and two from the opposition parties. Traditionally three of the five members have been women.