May an officer use deadly force to arrest?

A SAPS Hero has a Constitutional duty to ensure the protection and security of all South Africans.

Section 49 permits deadly force during arrests only in limited circumstances. You are open to criminal liability as a SAPS Officer if you overstep.

Did you know? Section 49 has been amended several times. Whilst some think section 49 is too strict and gives the suspect the right to flee, others think section 49 is too relaxed and will lead to more killings.

Interesting Court Cases

Govender v Minister of Safety and Security 2001: In this case a 17-year-old child was shot at for attempted car theft. The Court ruled that the child did not pose a threat to the arrestor or society and the shooting by the SAPS Officer was unlawful. An extra question for an arrestor to consider before shooting was laid down by the Court: does the suspect post an immediate threat of serious physical harm to the arrestor/ to others or to society as a whole?

S v Walter 2002: In this case a father and son was shot at after breaking into a bakery. Justice Kriegler took great care in laying down several criteria for a SAPS Officer to consider before using force:

  1. Remember the purpose of arrest = bring person before Court;
  2. But arrest is not the only way of achieving the above;
  3. Arrest should not be seen as a form of punishment;
  4. When you must arrest = only use force where necessary to arrest;
  5. When force is necessary = use least degree of force reasonably necessary to arrest;
  6. When deciding the least degree of force = also take circumstances into account. This includes the threat of violence to arrestor and/ or others AND circumstances of suspect’s offence. The force used must be in proportion to the circumstances;
  7. Shooting at a suspect solely to carry out an arrest is permitted in very limited circumstances;
  8. Rule of thumb is NOT to shoot unless suspect poses threat of violence to arrestor and/ or others and where there are reasonable grounds to suspect that the suspect committed a crime that involves infliction or threatened infliction of serious bodily harm AND where there is no other reasonable means of arresting now or later;
  9. This does not mean that a SAPS Officer cannot shoot during an arrest in self-defence or the defence of someone else.

Then in 2003 there was an amendment to section 49, specifically highlighting the ‘proportionality’ requirement (proportional to the seriousness of the crime of the suspect and also the threat or danger the suspect poses to arrestor, bystanders and society as a whole). The Court in April vs Minister of Safety and Security in 2009 confirmed this view. Also, the 2003 amendment highlighted that the suspect must be suspected of an offence involving serious violence such as murder for example and that force must be immediately necessary.

The latest amendment to section 49: Use of force in effecting arrest

  1. Suspect must resist arrest OR flee where it is clear a SAPS Official is trying to arrest
  2. Not possible to arrest without use of force
  3. Only then may SAPS Official use force reasonably necessary
  4. AND proportional to
  5. SPECIFIC circumstances
  6. AND the SAPS Official may only use deadly force (force likely to cause serious bodily harm or death, includes shooting) where suspect poses a threat of serious violence to SAPS Official/ any other person
  7. OR where suspect is suspected on reasonable grounds of having committed a crime involving infliction or threatened infliction of serious bodily harm AND there is no other reasonable way to arrest then or later in time.

Further notes:

  • Justice Kriegler from the Walter case is not entirely happy with the new amendment and says this broadens the limits of SAPS Officials. Many in the legal fraternity share this view, therefore potential of further developments in our Courts;
  • Legal fraternity also feels that the age of the offender should be taken into account;
  • In addition to the age, many also feel that South Africa should include another factor before using deadly force = the safety and security of bystanders (which is a factor used in America).