A critical analysis of section 49 of the Criminal Procedure Act 51 of 1977 "The shoot to kill debate"

Abstract

‘A critical analysis of section 49 of the Criminal Procedure Act 51 of 1977 - ‘The shoot to kill debate’ sought to investigate the rationale and necessity behind the call for yet another amendment of section 49, that purports to clarify the rules under which police are allowed to use their firearms. Bold statements emerged from South Africa’s leaders and several politicians, urging the police to ‘shoot to kill’, and may have the effect of threatening the country’s young and vulnerable constitutional democracy. The research comprised an historical overview of section 49, encompassing the use of force pre- and post- Judicial Matters Second Amendment Act 122 of 1998, followed by an overview of the current section 49. On the face of it, section 49 violates some constitutionally protected rights, among which are the right to life, to freedom and security, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. The ‘new’ section 49 however, withstood Constitutional muster as set out in Re: S v Walters&another. The research proceeded to contrast the current section 49, against the common law defence of private defence. A private individual invoking the defence of private defence is weighed against the law enforcement official invoking the defence under section 49. It is argued that the level of proof in the latter is higher as opposed to the former, resulting in the contention that the law enforcement officer is unfairly discriminated against. The reverse onus, whereby the onus is shifted onto the arrestor, is further canvassed. In an endeavour to interpret the Bill of Rights of the Constitution of South Africa Act 108 of 1996, the researcher considered international instruments such as the Canadian Constitution, where the use of force in effecting an arrest is regarded as legitimate, under certain conditions. In concluding the research it was established that the voiceferous calls, for the police to be able to ‘shoot to kill’, is both unnecessary and irresponsible. Section 49 has survived constitutional scrutiny. The use of force when effecting an arrest is sanctioned, provided that it is in line with the constitutional provisions where the sanctity of human life is respected and emphasized. The police do not need more powers to use deadly force because they already have all the powers that they need! There is a lack of knowledge and understanding by the leaders on the application and interpretation of section 49. Proper and effective training of police in Criminal Procedure and Criminal Law, specifically in the interpretation and understanding of section 49, with proper guidelines to limit the potentially excessive scope of section 49, is identified. The training should also include the mind set that ‘shooting to kill’, should not be taken lightly, should be limited and confined to what is reasonable and proportional in the circumstances and should only be exercised as a last resort A fully capacitated and well resourced police force will also empower and enable police officials.