David Bruce This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
Two shootings, one in June 1995, and one in February 1999, have culminated in two recent court judgements that, at last, sound the final death knell of a brutal apartheid era law.
Until the two judgements South African law provided that police members and ordinary citizens could use lethal force to prevent the escape not only of suspects believed to be involved in violent crimes, but also those suspected of involvement in some categories of non-violent, property-related offences.
The use of lethal force in effecting arrest continued to be governed by section 49(2) of the Criminal Procedure Act of 1977, despite the adoption of the constitution. Section 49(2) had frequently been criticised, partly because it failed to address issues of proportionality, in terms of which the level of force used needs to be related to the seriousness of the alleged offence.
So while the Constitutional Court held the death penalty to be in violation of the right to life, the legal situation regarding the exercise of the power of life and death by police and private citizens remained essentially untouched.
The first judgement issued by the Supreme Court of Appeal in June concerned the shooting on 16 June 1995 of Justin Govender, at that time a 17 year old matric student, and now a paraplegic after being hit in the spine.
On the night in question Inspector Cox and Sergeant Hillcoat were on patrol duty in a police vehicle. After noticing a BMW being driven extremely recklessly, they radioed the control room and were informed that the vehicle had been stolen earlier that evening. A high-speed chase ensued following which the driver of the vehicle, and another person, got out of the car and started running away. After shouting a warning, and a short pursuit on foot, Cox realised that he would not be able to catch the one suspect and fired at his legs, hitting Govender in the back.
Govender's father took the case to the appeal court after the initial judgment in the Durban high court rejected his claim for damages on behalf of his son. The appeal court has now reversed the initial judgment with the instruction that the matter be referred back to the Durban court for quantification of damages.
In finding in favour of the Govenders, the court defined two types of situations in which lethal force may lawfully be used:
- The first allows people to use firearms or other lethal force to defend themselves or others against an immediate threat to their lives or threat of serious bodily harm;
- The judgment also permits lethal force if one has reasonable grounds for believing that a fleeing suspect "has committed a crime involving the infliction or threatened infliction of serious bodily harm".
In the second case in the Transkei Division of the High Court, Edward Walters, and his son Marvin are being tried for murder after having shot dead a person who fled from them after being found breaking into their bakery. In this judgement delivered on 12 July, in which the deceased person is unnamed, the Court has declared two major parts of section 49 to be unconstitutional.
In an interesting legal development in this case the Transkei court has questioned the validity of the Govender judgment, suggesting that the Supreme Court of Appeal has overstepped its constitutional mandate by reading words into Section 49 which were not expressly included by the legislature. The court further criticised the Govender judgement for lacking clarity.
If the Transkei judgement is correct in this respect then the question of the use of lethal force in effecting arrest and the Constitutional validity of section 49 will have to now be examined by the Constitutional Court.
The Transkei court has argued that the killing of fleeing suspects constitutes not just a limitation but a 'total denial' of the rights provided in the Constitution. The Constitution, the court says, permits limitations but not the denial of rights.
The court also suggests that lethal force is entirely unnecessary for the purpose of arresting fleeing suspects as there are less drastic means, in the form of investigative methods, for finding and arresting them.
While much of the judgement appears based on sound reasoning the latter argument is far from true. In many, if not most, criminal cases the police are not able to identify, let alone track down, the suspects involved. This depends on there being physical evidence, such as finger-prints, or witnesses who can positively identify the suspects. Neither of these are necessarily present in the aftermath of a crime.
So while the Govender judgement may therefore itself be invalid, the principles which it puts forward regarding the use of lethal force, need to be recognised as essentially sound. Effectively the court has indicated that lethal force may be used to prevent the escape of a person where there is a high risk of them committing further offences involving serious bodily harm – as indicated by their having already committed a crime involving the infliction or threat of such harm.
The judgement implies that, where there are no other means of doing so, it is legitimate to use lethal force to prevent the escape of a person who has used a weapon, such as a firearm or a knife, for the purpose of committing, or attempting to commit, an offence.
While supporting the right to life, the Govender judgment therefore also gives primacy to the right of South Africans to be protected against serious violence.
While the death penalty has been declared unconstitutional, this is partly because there are alternatives to it in the form of long sentences of imprisonment. But in situations where there is no alternative, potentially lethal force should still be able to be used to prevent the escape of people who, due to their involvement in serious violent crime, may reasonably be believed to pose a danger to the public.
If the Constitutional Court does address the issues, and is able to define provisions relating to the use of lethal force in clear and precise terms, this will be helpful to the police and others who may encounter dangerous criminals. Nevertheless, if it does so, it would not be acting in error, if it follows the principles on the use of lethal force, put forward by the Govender judgement.
David Bruce is a Senior Researcher in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
In The Sunday Independent, 12 August 2001.
© Centre for the Study of Violence and Reconciliation
CSVR is a multi-disciplinary institute that seeks to understand and prevent violence, heal its effects and build sustainable peace at the community, national and regional levels.
