THE USE OF FORCE DURING CIVILIAN ARREST
There are only a few instances where the killing or injuring of a person is justified in terms of the Criminal Procedure Act.
The South African Police Service (SAPS) is authorised by section 205(3) of the Constitution (Act No. 108 of 1996) to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property and to uphold and enforce the law.
Civilians, on the other hand, may only arrest somebody in accordance with section 42 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) (the CPA) that allows the arrest of somebody-
(a) who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence
(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.
One should think carefully before attempting to execute an arrest, including the identity of the person, the crime allegedly committed, and what to do with the person after the arrest. If you have blundered in any aspect, you could be held liable for damages based on unlawful arrest.
The use of force, including deadly force, in arrest situations is presently governed by section 49(2) of the CPA, as amended by Section 7(2) of the Judicial Matters Second Amendment Act, 1998 (Act No. 122 of 1998), which reads as follows:
“If an arrestor (means any person authorised under this Act to arrest or to assist in arresting a suspect) attempts to arrest a 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 the suspect resists the attempt, or 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 purpose 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 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.”
An arrestor may thus use such force as may be reasonably necessary and proportional in the circumstances, when arresting a suspect, provided that force likely to cause death or serious injury to the suspect is only used to protect the arrestor or any other person from death or serious injuries, or the strong likelihood thereof, either immediately or in the future.
A finding by the Constitutional Court named the main points in the use of force by police officers and others in carrying out arrests as follows:
(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 is it always the best;
(c) Arrest may never be used to punish a suspect;
(d) When arrest is called for, force may be used only where it is necessary to carry out the
(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 considered, including the threat of violence the suspect poses to the arrestor 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;
(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
arrestor 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 reason-able means of carrying out the arrest whether at that time or later;
(i) These limitations in no way detract from the rights of an arrestor attempting to carry out an arrest to kill a suspect in self-defence or defence of any other person.
Based on recent constitutional interpretation of the use of force and the revised section 49, when executing an arrest, a person may use potentially lethal force only if such force is immediately necessary and proportionate in the circumstances to protect the arrestor or someone else from imminent or future death or grievous bodily harm.
The choice to use force must be reasonable in light of the information known to the person at the time of the incident. Allowance must be made for having to make split-second decisions in tight, unpredictable, and rapidly changing situations without the benefit of hindsight. The use of deadly force is limited to situations where the arrestor or others are in imminent danger of death or serious bodily damage.
However, the suspect must be aware that he is about to be apprehended. Before using force, a suspect must be given a clear verbal warning to submit to authorities.
No law requires warning shots. A warning shot is feasible if it is both safe and appropriate to fire it.
The legislation forbids police officers or others from pre-emptively attacking someone who may represent a threat or prove dangerous. Instead, one must rely on facts to support a reasonable belief in the possibility of imminent death or serious bodily injury. This is commonly misinterpreted as meaning that the good guy must first be fired at before defending himself.
Deadly force is only viable if you have reasonable grounds to think that it is required to protect yourself or others from imminent or future death or serious bodily harm, and would not create a public hazard that outweighs the potential benefit of using it.
When using deadly force, you may use it until the suspect(s) surrenders or no longer constitutes a threat to life or bodily harm.
When the use of lethal force is no longer required or justified, it must be immediately ceased. Where lethal force is justified, it should be used to stop an impending threat. Once the decision to employ potentially lethal force is taken, be quick to draw but slow to re-holster.
Anyone carrying a firearm for self-defence must have received the best available training, preparing them mentally and physically to deal with life-threatening situations. Because using force in a violent conflict demands split-second decisions, there is rarely time to consider all options, legal and otherwise. So one must have thought about all of this before picking up arms. Because when a high-risk situation emerges, all attention must be directed there.
Because each case is unique, the foregoing is meant as a guideline, not legal advice. When facing a criminal charge or a civil claim for damages, proper legal guidance is essential.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.