SECTION 49 OF THE CRIMINAL PROCEDURE ACT, 1977:

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CRIMINAL PROCEDURE AMENDMENT BILL, 2010 B
39B-2010

• SECTION 49 OF THE CRIMINAL PROCEDURE ACT, 1977
• USE OF FORCE IN EFFECTING ARREST

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SUMMARY

• The Bill aims to amend section 49 of the Criminal
  Procedure
• Act, 1977 (Act 51 of 1977), in order to bring it
  into line with
• the judgment of the Constitutional Court in the
  case of Ex parte The
• Minister of Safety and Security and Others In re
  the State v Walters
• and Another (2002(2) SACR 105 (CC) (Walters).
• The Bill strives to enhance effective law
  enforcement by providing greater legal certainty
  to arrestors as to the circumstances under which
  force may be applied when attempting to effect an
  arrest, and the nature of the force that may
  lawfully be used in the course of an arrest.

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SECTION 49 IN CONTEXT OF CPA

• Chapter 5 Arrest sections 39 to 53
• S39 Manner and effect of arrest
• S40 Arrest by peace officer without warrant
• S41 Name and address of certain personsarrest
  without warrant
• S42 Arrest by private person without warrant
• S43 Warrant may be issued by magistrate or
  judge
• S44 Execution of warrants
• S45 Arrest on telegraphic authority
• S46 Non-liability for wrongful arrest
• S47 Private persons to assist in arrest when
  called upon
• S48 Breaking open premises for purpose of
  arrest
• S49 Use of force in effecting arrest
• S50 to 53 Procedure after arrest, offence of
  escaping, savings

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S39 MANNER AND EFFECT OF ARREST

• (1) An arrest shall be effected with or without
  a warrant and, unless the person to be arrested
  submits to custody, by actually touching his body
  or, if the circumstances so require, by forcibly
  confining his body.
• (2) The person effecting an arrest shall, at the
  time of effecting the arrest or immediately after
  effecting the arrest, inform the arrested person
  of the cause of the arrest or, in the case of an
  arrest effected by virtue of a warrant, upon
  demand of the person arrested hand him a copy of
  the warrant.
• (3) The effect of an arrest shall be that the
  person arrested shall be in lawful custody and
  that he shall be detained in custody until he is
  lawfully discharged or released from custody.

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S42 ARREST BY PRIVATE PERSON WITHOUT WARRANT

• (1) Any private person may without warrant
  arrest any person-
• (a) who commits or attempts to commit in his
  presence or whom he reasonably suspects of having
  committed an offence referred to in Schedule 1
• (b) whom he reasonably believes to have committed
  any offence and to be escaping from and to be
  freshly pursued by a person whom such private
  person reasonably believes to have authority to
  arrest that person for that offence
• (c) whom he is by any law authorized to arrest
  without warrant in respect of any offence
  specified in that law
• (d) whom he sees engaged in an affray.
• (2) Any private person who may without warrant
  arrest any person under subsection (1) (a) may
  forthwith pursue that person, and any other
  private person to whom the purpose of the pursuit
  has been made known, may join and assist therein.
• (3) The owner, lawful occupier or person in
  charge of property on or in respect of which any
  person is found committing any offence, and any
  person authorized thereto by such owner, occupier
  or person in charge, may without warrant arrest
  the person so found.

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S47 PRIVATE PERSONS TO ASSIST IN ARREST WHEN
CALLED UPON

• (1) Every male inhabitant of the Republic of an
  age not below sixteen and not exceeding sixty
  years shall, when called upon by any police
  official to do so, assist such police official-
• (a) in arresting any person
• (b) in detaining any person so arrested.
• (2) Any person who, without sufficient cause,
  fails to assist a police official as provided in
  subsection (1), shall be guilty of an offence and
  liable on conviction to a fine not exceeding R300
  or to imprisonment for a period not exceeding
  three months.

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OLD SECTION 49 (BEFORE ITS REPLACEMENT BY ACT 122
OF 1998)

• 49. (1) If any person authorised under this Act
  to arrest or to assist in arresting another,
  attempts to arrest such person and such person-
• (a) resists the attempt and cannot be arrested
  without the use of force or
• (b) flees when it is clear that an attempt to
  arrest him is being made, or resists such
  attempt and flees,
• the person so authorised may, in order to effect
  the arrest, use such force as may in the
  circumstances be reasonably necessary to overcome
  the resistance or to prevent the person concerned
  from fleeing.
• (2) Where the person concerned is to be arrested
  for an offence referred to in Schedule 1 or is to
  be arrested on the ground that he is reasonably
  suspected of having committed such an offence,
  and the person authorised under this Act to
  arrest or to assist in arresting him cannot
  arrest him or prevent him from fleeing by other
  means than by killing him, the killing shall be
  deemed to be justifiable homicide.

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NEW (CURRENT) SECTION 49

• Existing section introduced by Judicial Matters
  Amendment Act, 1998, but-
• Only commenced in 2003
• Main reason for delay in implementation was
  uncertainty within SAPS regarding interpretation
  and application of new section

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WALTERS CASE (2002)

• Constitutional Court in Walters case declared
  (old) section 49 (2) unconstitutional and invalid
• Court explained purpose of section 49 and set out
  legal framework regarding use of force when
  effecting arrest

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LEGAL POSITION SET OUT BY CONSTITUTIONAL COURT
(1)

• (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

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LEGAL POSITION SET OUT BY CONSTITUTIONAL COURT
(2)

• (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

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PROVISIONS OF CURRENT SECTION 49 (1)

• 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.

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PROVISIONS OF CURRENT SECTION 49 (2)

• (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 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.

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PROBLEM STATEMENT RE CURRENT SECTION 49

• Current section formulated in 1998, before
  Walters case was decided
• Criticised as being difficult to interpret and as
  equating use of force for arrest to law of self
  defence, leading to uncertainty among police
  officers regarding legitimate use of deadly force
• Viewed by some as narrower in application than
  the guidelines furnished by the Constitutional
  Court in Walters case since the Court made it
  clear that shooting to prevent a suspect from
  fleeing would be sanctioned if the suspect is
  reasonably suspected of having committed a
  violent offence (involving infliction of serious
  bodily harm)

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AMENDMENT REQUESTED BY MIN OF POLICE

• SAPS argues that the effect of this provision is
  that
• a police officer may not shoot at a suspected
  murderer or rapist (unless the police officer
  believes on reasonable grounds that the suspect
  is a serial murderer or rapist), or armed robber
  unless the suspect threatens the life of the
  police officer or another person at the time of
  the attempt to arrest the suspect
• an armed murderer or rapist who is fleeing
  without threatening anyone must be pursued by the
  police officer in order to catch up with and
  arrest the suspect, all the while running the
  risk of the suspect suddenly turning around and
  firing at the police officer
• the limitations imposed by section 49 on the use
  of deadly force when effecting an arrest are more
  restrictive than the criteria laid down by the
  Constitutional Court
• section 49 has given a "right to flee" to all
  those suspected criminals who are not suspected
  of being serial killers or rapists

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AIM OF AMENDMENT

• Amendment aimed at aligning section 49 with
  wording used (criteria laid down) in Walters case
• Definition of deadly force inserted to promote
  clarity
• Paragraphs (a) to (c) of proviso replaced with
  wording following Walters case

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AMENDMENT AS INTRODUCED INTO NA section (49)(1)

• 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 likely to
  cause serious bodily harm or death and includes,
  but is not limited to, shooting at a suspect
  with a firearm.

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AMENDMENT AS INTRODUCED INTO NA section (49)(2)

• (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 bodily harm
• 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 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
• 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.

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CONCERN LEADING TO AMENDMENT BY NA

• During the process of deliberation by the
  Portfolio Committee in the NA, it emerged that
  some commentators on the Bill interpreted
  paragraphs (a) and (b) of the proviso to
  subsection (2) as introducing separate (and
  lesser) requirements for the justification of
  deadly force during arrest, since the main
  requirement of proportionality was not repeated
  in the proviso.
• The Portfolio Committee decided to amend
  subsection (2) in order to make it absolute clear
  that use of force during an arrest must at all
  times be reasonably necessary and proportional in
  the circumstances.

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AMENDMENT EFFECTED TO SUBSECTION (2)(Changes to
original version indicated in red text)

• (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 bodily harm
• 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 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
• 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.

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END