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The use of deadly force by police can be justified, but should not be encouraged.

Posted 10 August, 2009 – 22:33 by Dmitri Hess


“One thing we must re-look at is how to allow police to do their work. We are not encouraging rookies or cowboys, but we are not handcuffing police to die alone.” Bheki Cele.

The statements by the newly appointed National Police Commissioner may, to some, seem like an appropriate response to the undeniably high rate of violent crime that continues to plague our country and undermine efforts to promote and protect of the values of our constitution. While there is a clear need to seriously address the unavoidably pervasive issue of crime (particularly violent crime) in South Africa, hasty calls for a ‘fight fire with fire’ approach should be carefully considered.

Bheki Cele has recently called for debate in parliament around making amendments to the Criminal Procedure Act, but by preempting such debate he has also made clear his thoughts on particular issues relating to police conduct. To add to his previous “shoot to kill” statements Cele has spoken about the need for removing the “handcuffs” placed on the police by the Criminal Procedure Act and to change the law so as to allow members of the police to use deadly force without having to exercise the precaution as is currently required by the Act. Cele has also said that liability for the consequences following any such use of deadly force by members of the police should rest with the Police Service as an organ of state and removing personal liability on the part of individual members of the police would allow them to do their job more effectively. Thus, according to Cele’s proposals, should a case arise where use of deadly force by a member of the police service is questioned and found to have been employed unjustifiably it would only be the State and not the individual perpetrator, that would be liable for such unlawful conduct. In effect he is calling for the law to be amended so as to increase the ability of the police to use violence in exercising of their duties, while reducing their accountability before a court of law.

S49 of the Criminal Procedure Act regulates the use of force of the police in exercising their duties and does in fact permit the use of deadly force under certain circumstances. The section under its current construction (and since the amendment of the previous section which provided a wider scope for the use of deadly force) strikes a balance between the need for the police to be effective in carrying out their constitutional mandate (which is to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the republic and their property  and to uphold and enforce the law) and the need to protect the rights to; dignity, to freedom and security of the person; and to life afforded to all people in South Africa including suspects. The arresting of a person is aimed primarily at achieving the objective of bringing that person before a court and may under certain circumstances require the use of deadly force.

Some may argue that the riight to life is  It would be ridiculous for the law to expect the police to refrain from using deadly force against a suspect where that person poses a threat to the officer or the public. But these circumstances are already covered by the present Act. The right to life is one reason for the law permitting the use of force under certain circumstances, which will include such measures in self defense or in order to protect the public from harm. Why then should more room be provided to use such force? There can be no doubt that serious measures are required to deal with the issue of violent crime, but this should not be done in a manner that has more chance of increasing rather than decreasing the level of violence in our society. The call for less restraint in resorting to deadly force will not necessarily lead to a decrease in violent crime, but it will most probably further endanger the lives of ordniary South Afrcians. The use of deadly force can be justifiable, but should not be encouraged.

The Commissioner should not ignore the reasons for departure from the previous law regulating the use of deadly force in effecting an arresting. As it stood under apartheid the Police Force constituted a repressive arm of the state in an era where the state, largely through the police force, adopted violent measures and where individual accountability was overshadowed by official capacity. People’s perception of the police today is still tainted by memories of systematic police brutality often committed against innocent individuals or indiscriminately against crowds of peaceful protestors. One does not have to look far into our history to find countless examples of the most disturbing incidents (the picture of the limp body of Hector Pieterson being a well known image of this history) where the police regularly used deadly force against citizens, and were doing so legally or without repraoch at least.

When South Africa progressed into a constitutional democracy bringing with it a change in the legal order we moved towards building a society where the cruelty and systematic disregard for peoples human dignity that characterised apartheid would remain as features of our history, never to be repeated. However, the problems created by the apartheid system are not only prone to the legal system and institutions, but it has also had a long lasting impact on the psyche of South Africans. The creation of a constitutional democracy sought not only to transform the legal order by removing repressive legal measures inherent in the old regime, but this transition also sought to transform the value system of our society by creating a space in which, both on an institutional as well as on a societal level, there would be a shift in consciousness of our people towards fully respecting the dignity of all.  In recognition of the active role that the SAP played in some of the most brutal acts of the apartheid system, among other things, the name of the police force was changed to the South African Police Service. This was in view of the fact that there was the need to change the public’s perception of the police as well as the need for the role of the police in society to change from being that of the aggressor to being the protector. Incidentally, the first case dealt with by the Constitutional Court (S v Makwanyane) struck down the death penalty and gave legal recognition to the view that the State, even in dealing with criminals, should not be found on the side undermining anyone’s dignity or to be part of the pertetuation of loss of life in our society.

The SAPS is now required to act in accordance with the Constitution and as a part of the State it is under a duty to respect, protect, promote and fulfill the rights in the Bill of Rights.

Clearly a simple change of name will not suffice and allow for ordinary citizens to alter their perception of the police, but it is through the conduct – from its patrolling members through to senior management, of the police that trust and respect for this organ of state will be instilled.

Bheki Cele’s comments do not seem to encourage police conduct that will serve to change this image. Instead his suggestions call for measures that will give more leeway to rogue police and cowboys and undoubtedly increase the amount of innocent deaths linked to criminal activities. The Commissioner’s rhetoric seems to have the potential of reducing the conduct of the police to a level no higher than the criminals they should be protecting us from and signals an aggressiveness remnicent of the SAP under apartheid.

As a citizen, I am also concerned about the impact of crime on our society. However, Cele’s calls for legal recognition and concession of more macho mechanisms to be used by the police in the war against crime, makes me feel more concerned than safe.Our previous National Police Commissioner was a thug in uniform and Cele would do us all a favour by setting a different example.

tricky isn’t it?

by sanjuri – 31 Aug 2009 – 14:46

Okay, so I have to admit at first I couldn’t agree more with Cele’s ideas as to force but after really putting that into perspective- how effective is more force going to be? Is it going to bring our crime levels down? On the other hand how does the SAPS feel about this proposed approach by Cele? They are the ones that do the dirty work, they are the ones have to decide reasonablness in a real sitation of crime.

Tricky in a limited amount of cases, but not so on the whole.

by Dmitri Hess – 3 Sep 2009 – 21:50

See article in today’s Business day “Police get blame for making protests worse” http://www.businessday.co.za/Articles/Content.aspx?id=80440. “Alexander showed images of a 15- year-old boy, allegedly shot with rubber bullets at point-blank range. The boy also had a deep gash at the back of the head said to be the result of being struck with a firearm.”

The stance of Bheki Cele does not only impact on police conduct when they are confronted with the use of deadly force and are required to respond with similar measures. It will no doubt also impact on their conduct when trying to apprehend persons fleeing arrest, or when they are confronted with acts of violence which could be repelled or by using proportionate means (less then deadly force), or even worse yet, when they are dealing with unarmed protesters. Using violent means to disperse crowds of peaceful protestors is probably the most disturbing impact that such gung-ho tactics could entail, and the effect this has on the public’s view of the police will be also be negatively affected.

I don’ think the situation is that tricky. If a police officer feels, and can show that they felt that their life was in danger and that the situation was such that they believed it reasonable that the use of deadly force was required, then they would have been totally justified in adopting such measures. Their conduct should always be proportional to the threat with which they are face, and I don’t believe that to be a tricky situation. What would a 15 year old boy have to be doing to give a police officer the impression that they were under a serious and deadly threat so as to warrant shooting that boy at point blank range and beating him on the head with the butt of a gun? Would that be proportionate or tricky to judge in that situation? I’m sure you would agree that there is something distasteful about the picture that paints.

What is important is not only what the police feel about Cele’s comments, as the article above seems to reflect what some of them may think, but it is also important what this may make the public think about the police, especially when such force starts being used against them, and not only against violent criminals. At a time when the country appears to be experiencing widespread mass action across numerous sectors – as a means to gain the authorities’ attention on issues that people feel are important to them, with the police standing ready to fire the effects are bound to be worrying and detriminetal to the confidence and trust in the police as the protectors of society. The police are the ones who “do the dirty work,” but they shouldn’t be employing dirty tactics.

Section 49 of the Criminal Procedure Act /77

by Anonymous – 23 Sep 2009 – 16:16

By Uhuru- ‘Care-diem’
Section 49 of the CPA, as read with the Constitutional Court Judgment Walters,  allows for the use of deadly force by Police Officers and Arrestors. It provides that any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing: Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds-
(a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;
(b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or
(c) 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.
on the face of it then, what the Commisioners was saying has no Constitutional misgivings. But we should be concerned because are consequences such as the right to be presumed innocent until proven guilty. I do share Dmitri`s sentiments; our authorities should not make reckless statements.