NEW SECTION 49 (NOT IN OPERATION ON 1 JULY 2001 WHEN THIS WAS POSTED ONTO THE INTERNET)

Section 7 of the Judicial Matters Second Amendment Act, 1998, will, when put into operation, amend section 49 of the Criminal Act, 51 of 1977.

The new section provides that where an attempt is made to arrest a suspect and the arrestor encounters resistance or flight on the part of that suspect, such force as may be reasonable necessary and proportional in the circumstances may be used by the arrestor in order to effect the arrest and to overcome the resistance or prevent the flight. This general rule embodies the normal principles relating to the use of the minimum force necessary in the circumstances.

This general rule applies without qualification when the force used cannot be classified as "deadly force".

The power to use reasonable force in these circumstances is, however, limited by a proviso whenever the force used is potentially lethal ("deadly force"). The use of deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, may only be used if the arrestor 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.

FULL TEXT OF THE NEW SECTION 49

49. If an 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 -

(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

THE GOVENDER DECISION (PRESENT LEGAL POSITION IN TERMS OF THE EXISTING SECTION 49) (AS ON 1 JULY 2001 WHEN THIS WAS POSTED ONTO THE INTERNET)

Quotation from the judgment:

"[24] The words ' Е use such force as may in the circumstances be reasonably necessary ЕЕ to prevent the person concerned from fleeing Е ' in section 49 (1) (b) of the Act must therefore generally speaking (there may be exceptions) be interpreted so as to exclude the use of a firearm or similar weapon unless the person authorised to arrest, or assist in arresting, a fleeing suspect has reasonable grounds for believing

1 that the suspect poses an immediate threat of serious bodily harm to him or her, or a threat of harm to members of the public; or

2 that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm."

POSSIBLE REWORDING OF PRESENT S 49 IN VIEW OF THE GOVENDER DECISION (2001 SCA) (own rewording NOT quoted from judgment)

49 Use of force in effecting arrest

(1) If any person authorized 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 authorized 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) The degree of force used, in order to effect the arrest, must be proportional to the seriousness of the crime of which the person resisting the attempt or fleeing, is suspected, or to the threat that person is reasonably believed to pose to any other person.

(3) Force which is likely to cause death or serious bodily harm may be used, in order to effect the arrest, if there are reasonable grounds to believe that the person resisting the attempt or fleeing -

(a) poses an immediate threat of death or serious bodily harm to the person authorized to arrest or to assist in the arrest, or to another person; or

(b) has committed a crime involving the infliction or threatened infliction of death or serious bodily harm.

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This wording reflects the ratio of the judgment of the Supreme Court of Appeal in the Govender judgment, without incorporating the possible exceptions (not specified in the judgment), which may, according to the judgment, exist with regard to the general principle contained in subsection (3).

Additional subsections may also be included to provide for appropriate exceptions to the general principle contained in subsection (3). This could be done with reference to examples taken from the legal position in other liberal democrasies.