S v E J and M E Walters; the Minister of Safety and Security and the National Commissioner of the South African Police Service intervening; the Minister of Justice and Constitutional Development submitting argument and the Centre for the Study of Violence and Reconciliation as amicus curiae. Case CCT 28/01

Section 49 the Criminal Procedure Act governs the use of force to carry out an arrest, subsection (2) permitting deadly force in certain circumstances. This latter provision was relied on by Mr EJ Walters and his son when they were charged with murder in the High Court in Umtata for having shot a suspect fleeing from their bakery one night. The prosecution responded that according to a reinterpretation of s 49(1) by the Supreme Court of Appeal (SCA) the shooting was not authorised. In the alternative the prosecution challenged the section's constitutionality. The trial judge disagreed with the SCA decision, held that he was not bound to follow it and upheld the constitutional challenge to the extent that it relates to a fleeing suspect. He then adjourned the case pending confirmation by this Court of the order of constitutional invalidity.

The accused and the prosecution took no part in the proceedings before the Constitutional Court. The Minister of Justice submitted argument that s 49(2) is unconstitutionally wide and contended for the validity of a replacement of s 49 adopted by Parliament but not yet put into operation.

The Commissioner, backed by the Minister of Safety and Security, strongly supported the section in its current form, contending that it conformed to internationally accepted norms. They relied on extensive research abroad and argued that the trial court had unduly limited the use of force; that the amended version of the section errs likewise and that s 49 can be saved by reinterpreting it as requiring proportionality and confining the use of lethal force to serious crimes.

The amicus also submitted substantial research material, including analyses of police crime statistics and studies of the use of force by and against police officers in the execution of their duties. Stressing that s 49 covers the use of force by anybody effecting an arrest, not only police officers, the amicus submitted that it should be struck down as a whole, the order being suspended for a month for the replacement section to be put into operation.

The judgment (by Justice Kriegler on behalf of a unanimous court) analyses the power to use force, including the use of a firearm, given by the section to persons lawfully carrying out an arrest. Because this power encroaches on the rights to life, human dignity and bodily integrity guaranteed in the Bill of Rights, the judgment examines the balance between these basic human rights and the interests of an effective criminal justice system. Regarding the use of a firearm, the judgment endorses the conclusion of the SCA that s 49(1) must be interpreted as generally excluding the use of a firearm unless the suspect (a) poses an immediate threat of serious bodily harm to the arrester or to someone else; or (b) is reasonably suspected of having committed a serious crime involving or threatening such harm. Read in this way, s 49(1) is constitutionally justifiable and the order by the trial court declaring it partially invalid is therefore not confirmed.

The Constitutional Court finds, however, that s 49(2) authorises the use of deadly force for arrests in circumstances that are so wide as to be constitutionally unjustifiable, for example an arrest for a trivial offence like shoplifting or for a serious but non-violent one like fraud. This subsection is therefore struck down in its entirety. Because s 49(1) covers the use of force generally and because the replacement section can be put into operation virtually immediately, the order of invalidation takes effect immediately, but does not affect past conduct.

The judgment tabulates the main points regarding the use of force by police officers (and others) in carrying out arrests thus:

"(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 always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(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 taken into account, including the threat of violence the suspect poses to the arrester 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 arrester 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 reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person."

The judgment also concludes that the trial judge did not have the power to differ from the SCA on a question of constitutional interpretation. He should also have dealt with the constitutional issue only if and when it became necessary for his verdict. As the order of constitutional invalidity does not affect past conduct, the case was referred back for resumption and conclusion on the basis that s 49(2) is constitutionally valid.

Lastly the judgment considers the fact that the new s 49, passed by Parliament in October 1998, has not yet been put into operation by the President. The Act containing the new section gave the President the power to fix the date of its implementation. This power could not lawfully be used to veto or otherwise block an enactment duly adopted by Parliament.