IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION)

CASE NO.:45/2001

In the matter between:

THE STATE

and

EDWARD JOSEPH WALTERS ACCUSED NO. 1

MARVIN EDWARD WALTERS ACCUSED NO. 2

JUDGMENT

JAFTA AJP:

Introduction

[1] At this stage of the proceedings the issue arising for decision in this matter is the constitutional validity of s 49(1) (b) and (2) of the Criminal Procedure Act of 1977 (Act 51 of 1977). Subsection (1) authorises the use of force in order to overcome a suspect. Subsection (2) authorises the killing of such suspects provided they have committed one of the offences listed in Schedule 1 of the said Act or are reasonably suspected to have committed such offence. In order to appreciate that issue it becomes necessary to quote the aforementioned provisions. The section reads as follows:

"(1) If any person authorised under this Act to arrest or 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 offence, and the person authorised under this Act to arrest or 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."

[2] In the case of a fleeing suspect subsection (1) lays down, inter alia, the following conditions which must be in existence prior to invoking the section:

(a) the arresting person must be authorised in terms of the Criminal Procedure Act to effect the arrest;

(b) he must not only have intended to arrest the suspect but should also have attempted to do so;

(d) the suspect's escape must be such that it could not be prevented without the use of force and the force used to prevent it should be reasonably necessary.

[3] In addition to the pre-requisite factors set out in para [2] above subsection (2) requires that:

(i) the suspect must have committed a Schedule 1 offence or reasonably suspected to have committed such offence;

(ii) there should be no alternative effective means of preventing the suspect's escape other than killing him;

[4] Schedule 1 lists a wide range of offences including serious and not-so-serious offences. The list covers offences such as housebreaking and theft and the deceased in the present case was suspected of having committed these offences. Provided that the other pre-requisite factors were proved to exist, the deceased's killing would be lawful.

The facts

[5] The two accused were charged with murder and to a large extent the facts were either common cause or not disputed. I shall now set out briefly the facts of the case. Accused no.1 is the father of accused no.2. During February 1999 accused no.1 was the owner of and operated a bakery business known as Lunch Box Bakery in Lady Frere. His business premises were broken into during the early hours of 7 February 1999. Entry was gained through a hole in the roof of the building. The watchman who was guarding the premises heard noise in the building and he went to report the incident to accused no.1 at the latter's house which was approximately 300 metres from the business premises. Having sent the watchman to report the break-in to the police as well, accused no. 1 proceeded to scene of crime armed with a shotgun and a 9mm pistol. Whilst approaching the premises he observed a policeman and the watchman infront of the premises. After the two had told him that they saw nobody in the building he peeked through the window and saw a hole on the ceiling. He then went to stand on the eastern side of the premises on the street. He sent the watchman to fetch the keys to the front door of the building as he wanted to enter and look around for the intruder. After opening the door he looked around whilst standing near the door because he was scarred that he might be attacked if he searched for the intruder inside the dark building with only refrigerators providing limited light. The policeman too was unwilling to enter the building. He went back to stand on the eastern side of the premises in the hope to see the intruder leaving the premises. Whilst he was there accused no.2 arrived saying he (accused no.2) wanted to go into the building to check if there was anybody there. At first he tried to discourage accused no. 2 but eventually he agreed that he could go in and gave him his pistol. Accused no.2 obtained a flashlight from the watchman and climbed into the hole in the ceiling. He did not see anybody except few items taken from the shop housed in the same building. When accused no.2 came back to where he remained standing he sent him to fetch the keys to the store-room from their house because he had heard noise on the roof of the building. Shortly thereafter, he heard accused no.2 shouting from the western side that he was already on the roof. He heard accused no.2 shouting that there was someone on the roof and later he heard shots being fired. He did not know who was firing the shots. Immediately after the gunshots he saw the deceased running towards the fence at the back of the premises. He shouted to him to lie down in IsiXhosa but the deceased continued running. He then fired two shots in the air with his shot-gun but the deceased did not stop. I may hasten to point out here that the State version contradicted the defence version on what happened from the moment the deceased jumped off the roof. However, the evidence by the State witness in this regard was of a poor quality and I had no difficulty in rejecting it and accepting the defence version as correct.

[6] When the deceased continued running in spite of the two warning shots, aiming at his legs accused no.1 fired a single shot at the time the deceased was about to disappear into long grass near the fence and at an area which was dark. The deceased disappeared into the darkness and he saw accused no.2 coming from the area where the deceased had earlier emerged next to the verandah. He told him to look for the deceased in the grass near the fence. Indeed accused no.2 found the deceased and brought him to where he was. At that stage he was not aware that the deceased was hurt but when he noticed blood spots on the latter's leg he arranged that the police take him to hospital. He only lent later that it was his son who fired shots on the roof of the building.

[7] Accused no.2 stated that on his arrival at the premises he first saw a police vehicle parked on the street, on the western side of the premises with one policeman in it. On asking why the policeman remained in the vehicle when they suspected the intruder to be still in the building, the policeman said he was waiting to catch the intruder if he ran to the back of the building. He then went to the front where he found another policeman together with the watchman. On what occured on the roof of the building, accused no.2 stated that he first slipped and landed on his knees, and then he heard footsteps advancing towards him from behind. When he turned, and as it was dark, he saw a figure of a person approaching him. Fearing for his life he fired a shot at the person with the 9mm pistol. That person (who later turned out to be the deceased) turned immediately and ran away. He shouted at him to stop in IsiXhosa but deceased failed to do so. I may again point out that the State witness referred to in para [6] above contended that accused no. 2 shouted in Afrikaans. Nonetheless I accept accused no. 2's version in preference to the story of that witness. When the deceased was about to disappear into darkness accused no.2 fired two shots at him. He then lost sight of the deceased without being aware that any of those shots hit him. He later found the deceased lying on his back in the long grass near the fence. He grabbed and walked with him to where his father was. They lent later from the police that the deceased had died in hospital.

[8] The post mortem report completed by the doctor who examined the deceased's body was handed in by consent. It reveals that the deceased sustained two penetrating wounds on the left buttock, one such wound on the left posterior side of the waist and ten other penetrating wounds on the right leg. One bullet struck and penetrated his body at the back, striking both the liver and the heart on its way to the anterior wall of the chest where it was found lodged when the post mortem examination was conducted. The report indicates that the cause of death was the gunshot injury to the liver and the heart which resulted in massive internal bleeding. A copy of the report by a ballistic expert was also handed in during the trial. This report links the bullet recovered from the deceased's body to the 9mm pistol which was fired by accused no.2. It also links three empty cartridges picked at the scene to that fire-arm. Lastly, it indicates that one shot-gun empty cartridge picked on the scene was fired by the shot-gun used by accused no.1.

The issues

[9] As it appears in paras [1] - [4] above s 49(1)(b) and (2) authorise the wounding and killing of a fleeing suspect under certain circumstances and the onus for proving the existence of such circumstances is placed upon the person relying on the section for justification of his or her conduct. In this matter it was common cause that the accused bore such onus. However the prosecution disputed that the accused discharged the onus. It was argued by Mr Walters, for the State, that on the application of the construction given to s 49(1) by the Supreme Court of Appeal in Govender v The Minister of Safety and Security Case No: 342/99, unreported judgment delivered on 1 June 2001, the two accused have failed to discharge the requisite onus. Alternatively, he argued that s 49 is inconsistent with the Constitution and therefore has no force and effect. Consequently the accused cannot rely on the provisions of the said section for justification of their acts in firing shots at the deceased.

[10] On the other hand Mr Du Toit, for the accused, argued that at the time the deceased was shot the section carried an interpretation different from the one given to it by the Supreme Court of Appeal on 1 June 2001 and therefore the decision does not apply to the present case. He contended that the accused cannot be denied a legal defence which was available to them at the time of the shooting. Furthermore, he argued that the decision in Govender cannot be applied retrospectively to criminal matters wherein offences were committed prior to 1 June 2001. He vigorously criticised the Govender decision and I shall deal with some of the criticisms below. In the alternative, he argued that even if I conclude that the section is unconstitutional I should acquit both accused because at the time of the shooting they genuinely believed to be acting in terms of the section which still remains on the statute books and therefore lacked the necessary intention to commit an offence.

[11] It seems to me that the main issue in this matter is the constitutionality of the relevant portions of s 49, i.e. ss (1)(b) and (2). I arrive at this conclusion for the following reasons. If the section is found to be invalid for inconsistency with the Constitution, and such finding is confirmed by the Constitutional Court, the interpretation given to it by the Supreme Court of Appeal (the SCA) would fall away together with the section unless the court finds that the section is saved by s 36 of the Constitution which permits the limitation of rights in the Bill of Rights provided such limitation is of general application and also "is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom" or such an interpretation is adopted in terms of the process envisaged in s 172 (1)(b) following upon a declaration of invalidity due to the inconsistency. It must also be borne in mind that in Govender the SCA was not called upon and did not consider the constitutional validity of the section and also did not construe ss (2) which authorises the killing of fleeing suspects. Therefore, if this Court were to follow the decision in Govender it would only deal with the defence raised by accused no.1 who relied upon ss (1)(b) in claiming justification for wounding the deceased on the leg. The difficulty arising from accused no.2's defence of justifiable homicide would remain unresolved and still would require further consideration beyond the parameters of Govender.

The preliminary points

[12] Before engaging in the enquiry into the constitutionality of the section I must nevertheless, deal with certain preliminary submissions made by counsel. It was argued on behalf of the accused that the decision in Govender cannot be applied to the present case because the incident giving rise hereto arose long before 1 June 2001. This argument primarily loses sight of the basic principle regarding the supremacy of the Constitution. The Constitution expressly provides in s 2 that any law or conduct which is inconsistent with it is invalid. Such invalidity, I venture to say, came into effect on the date the Constitution was promulgated and that is why s 172 (1)(b) confers the power to limit the retrospective effect of a declaration of invalidity. Such declaration does not in itself, it seems to me, bring about the invalidity but merely clarifies a constitutionally stated position for the benefit of the general public. I do not understand the provisions of s 172 (2)(a) to be detracting from that legal position. It would appear that the subsection was designed in order to put the Constitutional Court, as the highest Court in constitutional matters, in a supervisory position over the other Courts in their exercise of the power to declare Acts of Parliament to be invalid.

[13] In persuading me to follow the Govender decision Mr Walters submitted that I am bound by the decision in that matter. It is well settled that in terms of the doctrine of stare decisis which forms part of our law, decisions of the higher courts are absolutely binding on the lower courts. But it is also a term of the same doctrine that where a decision of a higher court is in conflict or inconsistent with the decisions of the highest court, the lower courts are bound to follow the latter decisions in preference to that of the former. Put differently, decisions of the highest court take precedence over those of the higher court. Therefore, according to this doctrine the decision in Govender would be binding on this Court unless it is inconsistent with decisions of the Constitutional Court in which event I would be obliged to follow decisions of the latter Court in preference to Govender. This would apply only to decisions involving constitutional matters. There is no doubt to my mind that the decision in Govender was influenced by constitutional principles. The reading of the judgment in that matter clearly shows that the SCA found the scope covered by s 49 (1) too wide and also that the section imposed limitations on constitutionally entrenched rights such as the right to life; the right to physical integrity; the right to dignity; the right to be presumed innocent; and the right to equality before the law and equal protection of the law. All these rights formed part of the Bill of Rights entrenched in the interim Constitution.

[14] Once a finding on the limitations imposed by the section was made then the procedure dealing with such limitations and set out in s 33 of the interim Constitution should have applied. Infact, in making the finding it made, the SCA had already embarked upon an enquiry into the constitutional validity of the section. The process of determining justification in terms of s 33 had already begun because the finding on the limitation constitutes the first leg of a two-stage enquiry into justification as laid down by the Constitutional Court in numerous decisions. In Coetzee v Government of the Republic of South Africa 1995 (4) SA 631(CC) at para [9] Kriegler J stated at para [9]:

"[9] This Court has laid down, that, ordinarily, one adopts a two-stage approach for determining the constitutionality of alleged violations of rights in chap 3 of the Constitution. The first stage is an enquiry whether the disputed legislation or other governmental action limits rights in chap 3 of the Constitution. If so, the second stage calls for a decision whether the limitation can be justified in terms of s 33 (1) of the Constitution."

See also S v Makwanyane 1995 (3) SA 391 (CC) at paras [99] - [100] and S v Williams and Others 1995 (3) 632 (CC) at para [54].

[15] It is quite clear from the reading of the interim Constitution and the judgment by Chaskalson P in Makwanyane that where there is a limitation of any of the rights contained in chap. 3 of that Constitution (as it was the case in Govender), such limitation should pass the test in s 33 for it to escape the declaration of invalidity. It cannot be saved by an interpretative process short of meeting the requirements of s 33. However s 35 of the interim Constitution gave guidance on how the provisions of chap. 3 should be interpreted and also stated that where a particular law is capable of two reasonable interpretations; one imposing a limitation whilst the other does not, then the construction which does not lead to a limitation should be adopted. It is significant to note that the interpretative principle applies only where the piece of legislation (without adding or subtracting anything from it) is capable of being construed in a manner that does not lead to a limitation. If, on the other hand, the legislation cannot be interpreted without giving rise to the limitation unless something is added or subtracted from it then the provisions of s 33 should be invoked with a view to determine whether the limitation is justified. In Makwanyane (supra), Chaskalson P set out the second leg of the enquiry as follows:

"The application of s 33

[103] The criteria by s 33 (1) for any limitation of the right contained in s 11 (2) are that the limitation must be justifiable in an open and democratic society based on freedom and equality, it must be both reasonable and necessary and it must not negate the essential content of the right.

[104] The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of s 33(1). The fact that different rights have different implications for democracy and, in the case of our Constitution, for 'an open and democratic society based on freedom and equality', means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case-by-case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interest. In the balancing process the relevant considerations will include the nature of the right that is limited and its importance on an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society. The extent of the limitation, its efficiency and, particularly where the limitation has to be necessary, whether the desired end could reasonably be achieved through other means less damaging to the right in question."

[16] I shall now consider whether the decision of the SCA in Govender is consistent with the decisions of the Constitutional Court. The major findings of the SCA in Govender appear to be the following:

(a) The provisions of s 49 (1) in their current form place limitations on a number of rights enshrined in the Bill of Rights;

(b) It was necessary to determine whether such limitations do pass the test laid down by s 33 of the interim Constitution;

(c) Such determination on whether justification has been established or not could be achieved by simply applying the interpretative process; and

(d) Pursuant to the application of that process the Court could read into the section words which were not expressly included by the Legislature.

[17] The findings set out in para [16] above are contained in paras [8]-[14] and [24] of the judgment in Govender. I shall however quote passages from paras [8]-[9] and [24] for the purposes of this judgment. Olivier JA stated in those paragraphs:

"[8] On behalf of the appellant it was argued that this approach is flawed. It loses sight of the constitutionally protected rights to which even a fleeing suspect in the position of Justin is entitled. These rights, according to the Interim Constitution (applicable in this case) include a right to life (section 9); a right to physical integrity (section 11 (1); a right to protection of his or her dignity (section 10); a right to be presumed innocent until convicted by a court of law (section 25 (3) (e)); and the right to equality before the law and to equal protection of the law (section 8 (1)). Section 49 (1) of the Act self-evidently imposes a limitation on these rights. The question then is whether the limitation it imposes as properly interpreted passes the tests laid down in section 33 (1) of the Interim Constitution. Is section 49 (1) of the Act,

(i) reasonable ; and

(ii) justifiable in an open and democratic society based on freedom and equality; and

(iii) not negating the essential content of the rights in question; and

(iv) as far as the rights to dignity and to be presumed innocent are concerned, also necessary?

[9] That depends in the first instance on the proper interpretation of Section 49 (1). In this Court, the appellant did not attack the constitutional validity of the section. He requested the Court to interpret it or 'read it down' so as to comply with the correct constitutional standard."

[18] It would appear that the SCA was persuaded to accept the approach proposed by the appellant's counsel because after alluding to the changes brought about by the interim Constitution Olivier JA relied upon the decision of the Constitutional Court in Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor distributors (Pty) Ltd and Others 2001 (1) SA 545 (CC) at paras [21] - [22]. The learned Judge of Appeal then went on to interpret s 49 (1) but in so doing the second leg of the enquiry in terms of s 33 (1) was adopted, and applied. The suspect's constitutional rights were weighed against the limitation imposed by the section. The learned Judge then concluded that in giving effect to s 49 (1) and applying "the constitutional test of reasonableness" the test of proportionality between the seriousness of the offence committed and the force used should be expanded to include a consideration of proportionality between the nature and degree of the force used and the threat posed by the fugitive to the safety and security of the police officers, other individuals and society in general (para [21]). In conclusion the learned Judge stated at para [24]:

"[24] The words '...use such force as may in the circumstances be reasonably necessary.... to prevent the person concerned form fleeing...' 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 weapons 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." [Emphasis supplied]

[19] In my respectful view the decision in Govender is not consistent with the decisions of the Constitutional Court on the issue of dealing with legislation that limits the rights entrenched in the Bill of Rights. The approach adopted in Govender does not, in my respectful opinion, make a distinction between the interpretative process of reading down the statute and the process of reading words into a statutory provision. The latter process is currently sanctioned by the provisions of s 172 (1)(b) of the final Constitution and it must be preceded by a finding of constitutional invalidity in terms of s 172 (1) (a). Obviously this did not apply to Govender's case because the interim Constitution applied to that matter and under the interim Cnstitution only the Constitutional Court could declare an Act of Parliament to be invalid and also take the remedial step of reading words into a statute. Consequently, and with greatest respect it would appear that the SCA has, by reading words into s 49, adopted an incorrect approach and thereby overstepped its constitutional mandate under the interim Constitution. Although the SCA can now do so under the present Constitution its order in this regard becomes effective only after confirmation by the Constitutional Court. In other words, orders of constitutional invalidity made by the SCA rank in the same level with similar orders made by the High Courts.

[20] On the other hand the process of reading down a statutory provision generally occur in the case of overbroad provisions and it entails giving a restrictive meaning to the interpreted provision without "reading in" additional words into it which were not included by the Legislature. Section 35 (2) of the interim Constitution expressly provided for this approach. Such interpretation did not require to be preceded by a finding of constitutional invalidity. In the words of Mokgoro J in Case and Another v Minister of Safety and Security and Others 1996 (3) SA 617(CC) at para [76]:

"Reading down is a narrower remedy than severance: it is appropriate only where the language of the provision will fairly bear the restricted reading. Otherwise, it amounts to naked judicial law-making."

[Footnote omitted]

[21] The Constitutional Court in a unanimous decision in National Coalition for Gay & Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) emphasised the distinction between interpreting a statute in a manner consistent with the Constitution and reading words into it in order to remedy the unconstitutionality. At paras [23]-[24] Ackermann J said:

"There is, it is true, a principle of constitutional interpretation that where it is reasonably possible to construe a statute in such a way that it does not give rise to constitutional inconsistency, such a construction should be preferred to another construction which although also reasonable, would give rise to such inconsistency. Such a construction is not a reasonable one, however, when it can be reached only by distorting the meaning of the expression being considered.

[24] There is a clear distinction between interpreting legislation in a way which 'promote[s] the spirit, purport and objects of the Bill of Rights' as required by s 39 (2) of the Constitution and the process of reading words into or severing them from a statutory provision which is a remedial measure under s 172 (1) (b), following upon a declaration of constitutional invalidity under s 172 (1) (a). I deal later with the constitutional permissibility of reading words into a statutory provision. What is now being emphasised is the fundamentally different nature of the two processes. The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid." [My emphasis and footnotes omitted]

The caveat for maintaining the distinction between the two processes was also made by Langa DP at para [24] in the Hyundai Motor Distributors case supra.

[22] As the finding of constitutional invalidity was foundational to the interpretation preferred in Govender and on the basis of the aforementioned inconsistency between it and judgments of the Constitutional Court, I am obliged to follow relevant decisions of the latter Court in preference to Govender. In an attempt to avoid the inconsistency between s 49 (1) and the Constitution, the SCA in Govender has, in my respectful view, negotiated (without success) the treacherous path between the Scylla of constitutional inconsistency and the Charybdis of statutory ambiguity. Firstly, it is not clear from the Govender interpretation in what instances would weapons such as firearms be included when construing s 49 (1) and what is meant by "similar weapons". Does it mean a person who uses a stone in stopping a fleeing suspect who is paralysed by the injury sustained from the stone can claim protection under the section whilst a policeman who shoots a suspect on the leg with no serious injuries ensuing may only claim protection if such suspect posed a threat of serious bodily harm? It is also not clear why the preferred interpretation focused upon the weapon used rather than the force applied. In my respectful opinion, such an interpretation would be inconsistent with the right to equality before the law and equal protection of the law. Furthermore, ordinary policemen and members of the public alike, could find it difficult to understand what the law required of them in stopping fleeing suspects in terms of s 49 (1). The principles applicable to the process of reading words into a statute were instructively set out in the National Coalition for Gay and Lesbian Equality case supra. At paras [73] - [75] Ackermann J stated:

"[73] Having concluded that it is permissible in terms of our Constitution for this Court to read words into a statute to remedy unconstitutionality, it is necessary to summarise the principles which should guide the Court in deciding when such an order is appropriate. In developing such principles, it is important that the particular needs of our Constitution and its remedial requirements be constantly borne in mind.

[74] The severance of words from a statutory provision and reading words into the provision are closely related remedial powers of the Court. In deciding whether words should be severed from a provision or whether words should be read into one, a Court pays careful attention first, to the need to ensure that the provision which results from severance or reading words into a statute is consistent with the Constitution and its fundamental values and, secondly, that the result achieved would interfere with the laws adopted by the Legislature as little as possible. In our society where the statute books still contain many provisions enacted by a Parliament not concerned with the protection of human rights, the first consideration will in those cases often weigh more heavily than the second.

[75] In deciding to read words into a statute, a Court should also bear in mind that it will not be appropriate to read words in, unless in so doing a Court can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution....

[76] It should also be borne in mind that whether the remedy a Court grants is one striking down, wholly or in part, or reading into or extending the text, its choice is not final. Legislatures are able, within constitutional limits, to amend the remedy, whether by re-enacting equal benefits, reducing them, amending them, 'fine-tuning' them or abolishing them. Thus they can exercise final control over the nature and extent of the benefits." [Emphasis added and footnotes omitted]

[23] I shall now turn to the question of constitutional invalidity. However, I propose to first deal with s 49 (2) as it appears to present less difficulties. I shall begin by considering whether the subsection satisfies the requirements of justification as envisaged in s 36 (1) of the final Constitution which applies to the present case. This subsection authorises limitation of any right contained in the Bill of Rights if such limitation is made in terms of the law of general application and the limitation itself is confined to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The subsection also lists a number of factors to be taken into account when determining whether the limitation is reasonable and justifiable in the kind of society referred to therein.

The constitutionality of s 49 (2)

[24] It seems to be indisputable that the subsection violates, inter alia, the right to life, the right to dignity and also the right to personal integrity. The list is by no means exhaustive. Therefore the first stage of the enquiry is satisfied. There remains the second leg of the enquiry. But before embarking on the balancing process it would be apposite to make an observation regarding both the rights to life and dignity. It is quite clear from the jurisprudence emerging from the Constitutional Court that these rights are placed on a higher pedestal in our constitutional order than the remainder of other rights in the Bill of Rights. In Makwanyane (supra), Chaskalson P said in this regard at para [144]:

"[144] The rights to life and dignity are the most important of all human rights and the source of all other personal rights in chap 3. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the state in everything it does, including the way it punishes criminals."

Those sentiments were echoed by O'Regan J in Dawood, Shalabi and Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC). The learned Judge went further to demonstrate the importance of the right to dignity by emphasising that dignity also constitutes a foundational value which influences the interpretation of almost all other rights. At para [35] O' Regan J expressed herself as follows:

"[35] The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution assents dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel inhuman and degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery servitude or forced labour."

(Footnotes omitted and the emphasis is that of O' Regan J]

[25] As stated at para [104] in Makwanyane the process of balancing involves the weighing up of different and competing interests. Section 36 (1) of the Constitution following what was stated by Chaskalson P in Makwanyane enjoins the Court to take into account factors listed hereunder:

(a) the nature of the right affected by the limitation;

(b) the importance of the purpose of the limitation;

(d) the relation between the limitation and its purpose, and

(e) less restrictive means to achieve the purpose.

The nature, extent and the importance of the limitation.

[26] The nature of the rights limited by s 49 (2) has been discussed in para [24] above. I shall now consider the nature, extent and the importance of the limitation itself. The nature of the limitation is the use of force upon the fleeing suspect for the purpose of arresting him or her so that he or she could be charged, tried and if convicted, punished for the offence committed. Manifestly, the importance of such limitation is to maintain public confidence in the criminal justice system and to avoid the chaotic situation which could arise if offended individuals were to take the law into their own hands. The effectiveness of the courts and the criminal justice system primarily depend on the apprehension and production of suspects before the courts of law. Such effectiveness is foundational to peace and stability of a democratic society envisaged in s 36 (1) of the Constitution. The bringing of suspected criminals before the courts constitutes a significant component of the rule of law upon which our Constitution is founded. In Govender, Olivier JA eloquently described the purpose of s 49 in the following terms at para [12]:

"[12] The objects and purport of subsections 49 (1) and (2) of the Act are obvious. It is fundamentally to protect the safety and security of all persons. The state has the duty to preserve the criminal justice system's effectiveness as a deterrent to crime.

'A state has a systemic interest in ensuring that suspects are brought to justice through a trial and possible punishments. If suspects were able to flee successfully from arrest on a more or less regular basis, the threat of punishment would be weakened and the efficiency of the criminal justice system as a deterrent to crime undermined.'

{Floyd R Finch Jr, Deadly Force to Arrest: Triggering Constitutional Review, 11 (1976) Harvard Civil Rights - Civil Liberties Law Review, 361 at 372.)

A failure by the state to preserve the effectiveness of the criminal justice system will end in lawlessness and loss of the legitimacy of the state itself."

The relation between the limitation and its purpose

[27] The question that arises in this regard is whether the purpose of arresting a fleeing suspect justifies the means of using deadly force resulting into the death of such suspect. To speak of a limitation in the case where the suspect is killed constitutes, in my view, a misnomer. Once the suspect is killed there is a complete denial of the right to life and consequently of all other rights which flow from it. Dead people cannot enjoy the protection of human dignity and the right to personal integrity simply because they are no longer human beings or persons. Possibly they may be entitled to the integrity and dignity of the dead but unfortunately our Constitution does not confer rights upon dead persons. Therefore the source of their rights would not be constitutional in nature.

Less restrictive means to achieve the purpose.

[28] It seems to me that generally speaking there are less restrictive means of reaching a fleeing suspect, albeit not at the time the suspect is hotly pursued. When it is borne in mind that the purpose of pursuing the suspect is to arrest and bring him before the court of law, there appears to be no absolute necessity that he or she be arrested during the occasion he or she is fleeing. Suspects may flee but certainly they cannot hide forever from the police, especially where they are known to them. Perhaps one should say it ought not to be so if we have a properly trained, efficient and dedicated police service. In cases where the fleeing suspect is not known, the police may use their investigative skills to determine the identity of the suspect. For example, finger-prints may be collected from the scene which may lead the police to the right suspect. Indeed many crimes are reported to the police wherein the identity of suspects is not known but the police through their investigative methods are able to determine who the suspects are. Although the accused in the present matter did not know the deceased but there is no evidence to the effect that the police could not have been able to trace who he was. Nor was there any evidence to the effect that having known his identity the police could not have surprised and arrested him from his place of residence. Therefore I conclude that there are less drastic means for arresting fleeing suspects other than killing them. The situation may be slightly different where the suspect resists arrest and threatens the arresting person with serious bodily harm. Nonetheless in this matter the Court is concerned with that part of s 49 (2) which regulates and authorises the killing of fleeing suspects.

[29] As it appears in para [27] above the killing of fleeing suspects constitutes a total denial of their constitutional rights something which is not sanctioned by the Constitution. The Constitution permits limitation and not denial of rights. Section 36 (1) expressly states that the limitation shall be to the extent of it being reasonable and justifiable. Furthermore, the limitation must be adopted in order to achieve a particular desired purpose. The killing of suspects does not achieve that purpose. Our courts do not try and punish corpses but living persons. Consequently, the killing of suspects does not preserve the criminal justice system. The risk of innocent people being killed under the purview of s 49 (2) is unacceptably high and there is no rational connection between such killing and the purpose for which force is used upon fleeing suspects. Moreover, the killing of a suspect cannot be redeemed should it later transpire that he or she was innocent of any wrongdoing. My conclusion is that s 49 (2) is, insofar as it authorises the killing of fleeing suspects, not justifiable.

The constitutionality of s 49 (1)(b)

[30] Undoubtedly this section, too, imposes a limitation upon the constitutional rights referred to at para [24] above in relation to the determination of the constitutionality of s 49 (2). What requires consideration at his stage is the balancing process with a view to determine whether or not the requisites in s 36 (1) are met by the limitation. Due to similarities and overlapping between the terms of ss (1) (b) and (2), I do not intend discussing again and in great details the factors taken into account in weighing up the limitation against the suspect's constitutional rights as listed in the limitation clause. For example, both subsections permit the use of reasonably necessary force in order to prevent the escape by the suspect so that he or she could be arrested. It is significant to note, though, that in terms of this subsection one can appositely speak of a limitation of the rights in the Bill of Rights. It does not authorise a complete take away of such rights. Therefore it is possible, under it, to consider and determine whether the extent of the limitation is both reasonable and justifiable in an open and democratic society.

[31] The importance of the purpose of the limitation is beyond question and the relation between such limitation and that purpose is also quite clear. I do not intend repeating the remarks made in regard to s 49(2) at paras [26]-[27] above, save to state that they equally apply here as well. However, the main problem (as I see it) presented by the subsection is how could it be determined with sufficient precision that the limitation is reasonable and justifiable in a society referred to in s 36 (1). The subsection permits the 'use of such force as may in the circumstances be reasonably necessary" to capture the fleeing suspect. The only stated qualification of the force used is that it should be "reasonably necessary" for the purpose of stopping the suspect's escape. The subsection applies to all conceivable offences ranging between the most trivial and the extremely serious ones. For example, the subsection would equally apply to a 10- year-old street kid who stole an apple at a corner cafe. The consequences of the force used are, in its present form, irrelevant to the enquiry. They can either be a superficial wound on the suspect's leg or a fracture in the spine leading to the suspect being a paraplegic.

[32] Therefore it is quite clear that the subsection is couched in extremely and dangerously wide terms. No Court would, in our constitutional order I must say, uphold the deliberate mutilation of a 10-year-old child who has stolen an apple only because he was successfully escaping arrest. Infact even before the current constitutional dispensation the Appellate Division was not inclined to upholding such cases. In Matlou v Makhubedu 1978 (1) SA 946 (A), construing similar provisions Rumpff CJ introduced what is popularly referred to as the proportionality test requiring some relation between the degree of the force used by the arrestor and the seriousness of the offence committed by the suspect. This approach was also adopted by Booysen J in Govender v Minister of Safety and Security 2000 (1) SA 959 (D). The learned Judge, after referring to the limitation clause in the interim Constitution, expressed himself as follows at 969 C-G:

"Section 49 (1) is a law of general application. Subsection (1) at present deals with the use of force in general and subjects its legality to the reasonableness test of the common law. In terms of the present authoritative interpretation, this reasonableness includes both a form of proportionality as well as a subsidiary principle. The amount and method of force used must therefore be in proportional balance to the aim that is to be achieved and must be minimum force that would be reasonably effective and feasible in the circumstances. It furthermore includes the weighing up of the nature and seriousness of the specific crime in question as committed against the amount and method of force used. In my view, s 49 (1) is both necessary and justifiable in an open and democratic society based upon freedom and equality. There is not a country in the world which does not authorise its police officials to use reasonable and necessary force to apprehend suspected criminals. Every open and democratic society has a strong interest in ensuring that reasonably suspected criminals are not permitted to escape the consequences of their criminal actions by simply resisting arrest or fleeing. In my view, the operation of s 49 (1) on the limiting factors that are applicable is such that the Courts will approach each case upon its own facts and circumstances, in the general context of our society and our Constitution, in deciding in each particular case whether the degree and type of force applied was the minimum force possible, reasonable, necessary and proportionate such as to justify any reliance upon s 49(1). As I have said, theft of motor vehicles is not only a serious problem in South African society due to its increasing prevalence, but it is closely related to the offence of the hijacking of motor vehicles. As I have stated s 49 (1) is applicable only to matters in which the person to be arrested was not killed. Consequently, it does not negate the essential content of the right to life under s 9 of the Constitution."

[33] Before making few observations about the approach adopted by Booysen J, I must point out that his judgment reveals an additional qualification to the force used that it must be minimum force. The learned Judge was asked to refer the issue of the constitutionality of s 49 (1) to the Constitutional Court because under the interim Constitution the High Court lacked the competency to enquire into such matters (968 D). Having considered the matter, the learned Judge concluded that there were no prospects of the Constitutional Court upholding the invalidity of the section. In arriving at this conclusion the learned Judge first employed, together and at the same time, the approaches permissible under s 35 (2) and 33 (1) of the interim Constitution. As it appears at paras [14]-[15] above s 35 (2) allowed the reading down of a provision which reasonably carried at least two meanings; one leading to a constitutional inconsistency and the other not. The latter had to carry a restrictive meaning. On the other hand it was imperative to find an inconsistency between the provision construed and the rights in the Bill of Rights prior to applying the requisites in s 33 (1). The finding of constitutional invalidity was a sine qua non for the invocation of s 33 (1). So, in my respectful view, Booysen J failed to maintain the distinction between those two different processes. The dictum quoted in para [32] above manifestly demonstrates that the requisites in s 33 (1) were applied before the conclusion that the Constitutional Court would not uphold the invalidity was arrived at. Regrettably the same error was committed by the SCA as well. In my respectful view, it is doubtful that the common law test of reasonableness referred to by Booysen J could still apply but where the provisions of the Constitution have been employed, its requirements should certainly be complied with. If the Constitution requires that a finding of constitutional inconsistency be made prior to invoking the justification test, such finding should be made. With respect, it would be extremely presumptuous to conclude that the Constitutional Court could not uphold the invalidity where provisions of the limitation clause were clearly invoked. To do so would constitute the usurpation of the authority conferred on that Court. It is quite common for Judges of the Constitutional Court to hold differing views on the justifiability of impugned statutory provisions (Harksen v Lane No and Others 1998 (1) SA 300 (CC)). In my opinion the determination of the prospects of constitutional invalidity would involve the same approach as the one followed in dealing with applications for leave to appeal. What is required of the applicant is merely to show that the Constitutional Court might and not would uphold the invalidity.

[34] Returning to the justification of s 49 (1), it would appear that the section suffers from overbreadth rendering it unreasonable and unjustifiable in an open and democratic society based on human dignity, equality and freedom. The decision of the US Supreme Court in Tennessee v Garner (471 (1985) US 1), relied upon by the SCA, lends support to this view eventhough it dealt with a case of justifiable homicide. I must hasten though, to state that whilst I appreciate the justification for the use of deadly force where the suspect poses a threat of serious bodily harm I am unable to comprehend how the nature of the crime committed by such suspect could justify the use of lethal force in order to prevent his escape simply because the commission of the crime would have then been completed. If not, the requirement of the existing threat of serious bodily harm would apply. To me the latter sounds like "an eye-for-an eye" justification.

[35] Insofar as the question of the use of less restrictive means for achieving the arrest is concerned, remarks made in respect of s 49 (2) would also apply here and there is no need for a further discussion of the point. Nonetheless, I may mention that when accused no.1 saw the deceased running towards the fence he did not alert the other persons who were on the other sides of the premises so that they could come to his assistance in arresting the deceased. In its current form s 49 (1) did not require him to do so and so his failure in this regard did not constitute the breach of the section. Nor was he required to use force as a last resort. The section merely speaks of the use of reasonably necessary force. To convict him in these circumstances would amount to an injustice unless the section upon which he relies is found to be invalid. I am, consequently, satisfied that s 49 (1)(b), as it presently stands, does not pass the requisite test in s 36 (1) and it is therefore unjustifiable. Due to the high rate of crime sweeping through every corner of our country I have not lost sight of the possible negative reaction from certain quarters of society regarding the striking down of s 49. Indeed, it is my duty to enforce the laws of this country but I must emphasise that, over and above everything else, my primary obligation is to jealously protect and uphold the Constitution itself and the human rights entrenched in it.

The relief

[36] Although it is permissible in terms of s 172 (1)(b), I am not inclined to granting the relief granted by SCA regarding the interpretation of the section and especially the use of firearms under the section. I come to this view for a variety of reasons. Firstly, the language of s 172 (1) (b) is permissive. So, I have a discretion whether to grant such relief or not. What is required is that the order must be just and equitable. Secondly, any order I might make in terms of that section remains of no force and effect until confirmed by the Constitutional Court. Thirdly, the Minister responsible for enforcing s 49 was not represented during the proceedings before me and as a result had no opportunity of making representations either for or against invalidity. Fourthly, it appears to me to be quite difficult to define precisely how the section should be restricted in order to comply with the Constitution. In any event during the hearing of the matter it was brought to my attention that an amendment to the section has been proposed in the form of Act 122 of 1998 and s 49 will now read as follows:

"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.

(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.".

Undoubtedly, that amendment when effected would constitute a huge improvement but whether it will comply with the Constitution is a matter to be decided when it arises. What is important at this stage is to show some deference to Parliament especially since a clear indication to amend the section has been made. That respect is in keeping with and flows from the principle of separation of powers. In any event the final choice of what amendment should be effected resides with Parliament and if it complies with the Constitution it cannot be questioned.

Further conduct of the present proceedings.

[37] On behalf of the accused Mr Du Toit urged me not to adjourn the proceedings pending the order of confirmation. He argued that the outcome of such order will not affect the defence raised by the accused in that whether the section is declared invalid the remaining fact would be that they lacked unlawful criminal intent at the time of the shooting. I do not think that it is desirable to uphold the proposal in the present matter. The defence raised by the accused was that their actions were lawful as they were authorised by s 49. Thus far this Court has not given serious consideration to the facts with a view to determine whether the requirements of the section were strictly complied with before claiming protection under it. Such exercise would have been futile in the light of the view taken by this Court on the invalidity. On the other hand, to decide the matter on the assumption that the Constitutional Court would confirm the invalidity would be cynically presumptuous on the part of this Court. In the circumstances the proper thing to do would be to await the outcome of the confirmation order. In the meantime the present proceedings would remain adjourned pending the decision of the Constitutional Court. The accused will suffer no real prejudice as they are out on bail pending the finalisation of the trial.

[38] Accordingly the following order is made:

1. The provisions of s 49 (1)(b) of the Criminal Procedure Act 51 of 1977 (including the words 'or to prevent the person concerned from fleeing') are declared to be inconsistent with the Constitution and invalid.

2. The provisions of s 49(2) of the same Act 51 of 1977 insofar as they refer to the fleeing suspect (including the words 'or prevent him from fleeing') are declared to be inconsistent with the Constitution and invalid.

3. The orders in paras 1 and 2 above are referred to the Constitutional Court for consideration in terms of s 172 (2) (a) of the Constitution.

4. The present proceedings are adjourned pending the outcome of the consideration of the invalidity orders by the Constitutional Court.

ACTING JUDGE PRESIDENT

COUNSEL FOR THE ACCUSED : Etienne du Toit SC

Instructed by : Bouwes Mc Dougall Inc.

ATTORNEY FOR THE STATE : G. Walters

Further heard on 2 and 3 July 2001.

Delivered on 12 July 2001