"How the law on police use of deadly force is weakened" - by Clare Ballard

The article in full:

The Lonmin shooting and the use of deadly force in South African law: a dangerous amendment to the Criminal Procedure Act on the cards

Clare Ballard on a dangerous amendment to the Criminal Procedure Act

On Thursday 16 August 2012, 36 miners were killed by South African Police Services officials at Marikana mine in Mpumalanga. The violence arose out of a protracted labour dispute involving rival labour unions and Lonmin management. The final death toll of the week of 13 August 2012 is close to 50.

Some have described the attack by the SAPS on the striking miners on the 16^th as a "massacre" - indistinguishable from the events at Sharpville in March 1960. Others insist that the SAPS acted in self-defense, thereby rendering the use of force, including deadly force, justified. The available camera footage of the shooting, from whichever angle one views it, though undeniably distressing, is not particularly helpful in determining the truth of the events. Perhaps the most balanced view of the events we can hope for will be revealed by an investigation into Thursday's events by the Independent Police Investigative Directorate and the findings of a Commission of Inquiry.

Those who believe that the shooting of striking workers by the SAPS was based on little more than revenge are, understandably, outraged. And indeed, the media flurry in the aftermath of these events and the degree of societal interest signal that South African citizens care deeply about the way that the state machinery reacts to discontent within civil society. This is a very good thing: we know and remember all too well the devastating effects of state-sanctioned police brutality.  Perhaps this was on Justice Kriegler's mind when he wrote the following excerpt in the Walters case (May 2002):

"We have a history of violence - personal, political and institutional. Our country is still disfigured by violence, not only in the dramatic form of murder, rape and robbery but more mundanely in our homes and on our roads. This is inconsistent with the ideals proclaimed by the Constitution. The state is called upon to set an example of measured, rational, reasonable and proportionate responses to antisocial conduct and should never be seen to condone, let alone to promote, excessive violence against transgressors. Its role in our violent society is rather to demonstrate that we are serious about the human rights the Constitution guarantees for everyone, even suspected criminals."

The Constitutional Court was considering section 49 of the Criminal Procedure Act, which regulates the use of force by the police. The Court declared parts of that provision to be unconstitutional on the basis that it permitted the use of deadly force "where it may not be necessary or reasonably proportionate". The Supreme Court of Appeal, in the matter of Govender v Minister of Safety and Security (1 June 2001) had previously decided that force could only be used when an officer has reasonable grounds to believe that the suspect poses an immediate threat of serious bodily harm to the officer or to another person, or that the suspect has committed a crime involving the infliction of serious bodily harm.

In 2003, subsequent to the Walters decision, section 49 was amended to create three separate circumstances in which the use of deadly force will be justified:

1.That the force is immediately necessary to protect the arrestor, or any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;

2. 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

3. That the offence 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.

In May 2011, a Bill purporting, curiously, "to align the provisions relating to the use of force" with the Walters decisions, was tabled in Parliament. I say "curiously" because the current section 49's emphasis on the immediacy of the threat, the protection from life-threatening violence and immediate need for force, corresponds closely to the proportionality analysis envisaged by the Supreme Court of Appeal and the Constitutional Court. Accordingly, section 49, as it currently reads, sets a constitutionally acceptable threshold for the limitation of a suspect's rights to life, dignity, freedom and security and to be presumed innocent until convicted by a court of law.

The Bill, however, broadens significantly the grounds on which the use of deadly force may be used and justified. According to the Bill:

• Deadly force is no longer limited to circumstances in which a serious crime had occurred and the police responded "immediately" attempting to arrest a suspect. The unfortunate consequence of this is that deadly force could be justified during the course of a routine investigation.
• The threat of danger to the arrestor or any other person need only be serious, as opposed to the grievous bodily harm required by the current text.
• There need not be a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed. Put differently, there need not   be a genuine risk to the lives of enforcement officials to justify deadly force, a physical tussle between law enforcement officials and a suspect that occurs long after the crime would suffice.
• There need not be an offence in progress that is of a forcible and serious nature and that involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm. It thus obfuscates almost entirely the notion expressed clearly in the Walters decision: that if arrest is necessary, then the force must be the minimum necessary to effect the arrest, and must be proportionate to the offence committed or the continued threat of violence.

Perhaps the most worrying aspect of the amendment Bill is its removal of the "immanent threat" requirement. Why is this so important? I think the Lonmin shooting footage illustrates the answer to this question well.  Not because it is necessarily an example of the unjustified use of force, but because it shows us the damage that automatic weapons can wield in a number of seconds.

Assume, for arguments sake, that any immediate threat to the police line-up on Thursday 16^th August ended at the point when the first instruction to "cease fire" had been given. The footage indicates that the shooting persisted for at least a few seconds after that, killing, no doubt, several more of the striking workers. If we remove "immediacy" from the evaluation of the use of force, we are ok with this scenario. But we shouldn't be.

At the parliamentary hearings on the Bill, many of us from civil society, armed to the hilt with constitutional jurisprudence, warned the Portfolio Committee on Justice and Constitutional Development that the Bill, without a few serious adjustments, did not pass constitutional muster. At the time, it seemed that our submissions were well received. But unfortunately the Bill has passed, with minimal comment from the media or civil society, through the National Council of Provinces and the National Assembly with only a couple of immaterial changes. It now awaits the President's signature.

Having constitutionally compliant legislation will not fix the seemingly endemic problems within the SAPS, nor will it repair its damaged reputation. What it can do, however, is strike the best the balance between undoubtedly complicated policing concerns, public safety and the rights to life, freedom from violence and dignity.

Perhaps the President will heed civil society's call and refuse to sign the bill. If he does not, it is highly likely that, once passed, the amendment will be challenged before the courts. 

Clare Ballard is a Researcher at the CSPRI (Community Law Centre) and an attorney of the High Court of South Africa (cballard@uwc.ac.za). She can be followed on Twitter here.

Originally published on Politicsweb on 24 August, available at http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=321636&sn=Detail&pid=71619