Justice seeking comment on S49


The Department of Justice and Constitutional Development is seeking public comment on its draft amendment of Section 49 of the Criminal Procedure Act (CPA) that regulates the entitlement of police to fire on suspected criminals.

“The purpose of the Criminal Procedure Amendment Bill is to amend the Criminal Procedure Act 51 of 1977, so as to bring the provisions relating to the use of fo


rce when effecting an arrest into line with a judgment of the Constitutional Court,” the Parliamentary Monitoring Group observes. Comment can be emailed to JA de Lange at [email protected] on or before March 24.

According to the draft memorandum attached to the draft Bill, Section 49 regulates the circumstances in which force may be used by an arrestor when attempting to arrest a suspect, as well as the degree of force that would be lawful in the circumstances. Police who fail to comply are denied he protection of the aw and can be charged – and prosecuted – for the offences of murder, attempted murder, culpable homicide or for assault.



The present wording of section 49 was introduced into the CPA by the Judicial Matters Second Amendment Act in 1998 since it was anticipated, at the time, that the provisions of the “old” section 49 would not pass Constitutional muster. However, the new text only came into force in 2003, that is five years after the passing of the 1998 amendment. In the mean while, the “old” section 49(2) was declared unconstitutional and invalid by the Constitutional Court in 2002, in the case of Ex parte: The Minister of Safety and Security and Others: In re the State v Walters and Another (Walters). (2002(2) SACR 105 (CC). The court also held that the old section 49(1) had to be interpreted as set out by the Supreme Court of Appeal in the case of Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA).


In order to “make perfectly clear” what the law regarding this topic is, the court tabulated the

main point


s as follows:

“(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a


suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester 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.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.”


The memorandum adds that at the time of formulating the new text of section 49, the Legislature “did not have the benefit of the authoritative guidelines furnished by the Constitutional Court in the Walters case regarding the use of force for the purpose of effecting an arrest”. [dW Ed: This, of course, is a fiction. The justice department, not the legislature, drafts Bills, which are then approved by Cabinet. Parliament can make amendments, but this can be career-limiting]. “It is also a known fact that the South African Police Service raised serious concerns regarding the interpretation and application of the new text, especially in so far as appropriate training of police officers was concerned. The concerns in question led to the five-year delay in the commencement of the new section 49,” the draft memorandum adds.


While no objections have to date been raised against the constitutionality of the new text, the wording has been subjected to criticism from legal scholars, among others, as being difficult to interpret and as equating the use of force for the purpose of effecting an arrest to the established common law principles of self defence, including acting in defence of others.


Some authors have suggested that it would have been better not to put the new text into operation, in which event the “more satisfactory” legal position as set out in the Walters case would continue to apply. One source, Professor CR Snyman, in the fifth edition of his textbook Criminal Law, goes as far as suggesting that the new text has given a suspect a “right to flee”, the Justice department draft memorandum adds.


“The view is held that (with the benefit of hindsight now being afforded) the section should be aligned more closely with the criteria laid down by the Constitutional Court in the Walters case in order to ensure greater legal certainty regarding the circumstances in which force, especially deadly force, may be used in order to effect an arrest. The Bill aims to achieve this goal.”


The new section will read as follows:


Use of force in effecting arrest

49. (1) For the purposes of this section?

(a) ‘arrestor’ means any person authorised under this Act to arrest or to assist in arresting a suspect; [and]

(b) ‘suspect’ means any person in respect of whom an arrestor has [or had] a reasonable suspicion that such person is committing or has committed an offence; and

(c) ‘deadly force’ means force that is intended or likely to cause death or serious bodily harm.


(2) If 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] serious bodily harm; or

(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] that 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 carrying out the arrest, whether at that time or later.

[(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.]“.