Police’s limited licence to kill

Posted: 7th Apr 2017 by James Grant in Criminal Law, Education, Zuma

The extent of force permitted in effecting and arrest is different to the extent of force permitted in private defence.
An arrest serves one legitimate purpose only: to secure attendance of a suspect at court to answer to a charge. The purpose of the right to use force in private defence is to protect person or property from an imminent attack or to end an attack that has commenced.
The law on the force permitted in effecting an arrest is set out in section 49 of the criminal procedure act:

“(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;
(b) ‘suspect’ means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and
(c) ‘deadly force’ means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.
(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, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if-
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
(b) 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.”

Thus, notice, lethal force may not be used to effect an arrest for a suspected property crime – contrary to what some politicians who ought to know better have been saying.
On the other hand, the use of lethal force in defence of property is controversial. The leading case, S v Van Wyk 1967 AD, approved the use of lethal force in defence of property but only when the property is of significant value and there is no other means to protect it. This judgment was restrictive in itself. However, it is pre-constitutional, and one may expect that the Constitutional Court may well restrict it further. I am expecting that there will be a change in the meaning of significant value, which, under Van Wyk may be interpreted to be a reference to the property’s monetary value. I am expecting that, when our Constitutional Court considers this question – which it has surprisingly not had an opportunity to do – it will probably endorse the right to use lethal force in defence of property and, again, as did the Court in Van Wyk, limit it to circumstances in which there is no alternative. However, I am expecting that the Constitutional Court will restrict the use of lethal force to property of significant value where value is judged by – its real value – how necessary it is for the enjoyment of other rights: ones right to life, to employment, to shelter, to food. I expect that even under Van Wyk, and certainly under what I am expecting from the Constitutional Court, one will not be permitted to use lethal force in defence of property of trivial value or value which is unnecessary for the enjoyment of other rights. So, while you may use lethal force against someone, under Van Wyk and under what I expect from the Constitutional Court, to stop someone from burning down your home, you may not shoot someone for stealing a loaf of bread or stealing your big screen TV. Yes, someone’s life is worth more than a big screen TV.
The SAPS are bound to these same laws when acting in defence of property. So, for instance, while the police may not use lethal force to arrest you on suspicion of a property crime, they may use lethal force against you in defence of property – of significant (real) value.
Thus, either way, and unless the SAPS is acting in defence of property of significant real value in the sense described above, they may not use lethal force, and if their purpose is to arrest for a suspected property crime, rather than defend property, they may never use lethal force to effect that arrest.
When can one resort to lethal force? What if I or someone else is attacked? Can I use lethal force then?
The answer to this – is an unequivocal yes. Our law may be ass-like on many fronts, but on this question, it is not. If you or a loved one, or a stranger in your presence, is attacked and his/her life or bodily integrity is threatened, you may use such force as is necessary to end the attack. If there is no alternative and the life or bodily integrity (beyond the trivial – such as by a slap) is threatened, you may use lethal force and kill the attacker. This is incontrovertible.
Returning to what the police may do – they enjoy the same rights as all of us to act in private defence and the right to use circumscribed force in effecting an arrest. So, they may use lethal force in defence of property of significant (real) value – for instance, they would be permitted, as would you, to shoot someone who is about to set fire to someone’s home. They may not ever use lethal force in order to arrest someone for property crime.
However, in protecting a themselves or another person from serious violence, they may use lethal force, as you may, to protect that person, and, also, after the fact, to effect an arrest for a violent attack.

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