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.