ARTICLE 49

 

APPLICATION OF SECTION 49(1) OF THE CRIMINAL PROCEDURE ACT, ACT 51 OF 1977

 

 1.         The Supreme Court of Appeal has in Devraj Govender v The Minister of Safety and Security, Case No.342/99

             dated 1 June 2001, laid down important principles regarding the use of force, when fleeing suspects are  

              apprehended.        

 

2.         Section 49 of the Criminal Procedure Act, Act 51 of 1977, at present reads as follows

             "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 affect the arrest, use such force as may in the circumstances be

             reasonable necessary to overcome the resistance or to prevent the person concerned form 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 an offence, and the person authorized under

             this Act to arrest or to 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."

 

 3.         In the abovementioned case, the police shot and wounded the driver of a stolen vehicle, after he had ignored

             police instructions to stop, as well as warning shots fired, and attempted to flee when the police attempted to

             arrest him.

 

 4.         Having heard argument on the constitutional rights of suspects and on the state's duty to combat crime and

             preserve the integrity of the criminal justice system, the Court concluded that the nature and degree of force

             used to prevent a suspect from fleeing, must be proportional to the threat posed by the fugitive to the safety and

            security of the police officers, other individuals and society as a whole. The Court held that the words ~ use such

             force as may in the circumstances be reasonably necessary .... to prevent the person from fleeing ....," which is

             used in Section 49(1), must be interpreted to exclude the use of a firearm or similar weapon, unless the person

             who attempts to arrest the fleeing suspect, or who assists with such arrest, has reasonable grounds to believe

             that :

 

                         4.1        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

4.2         The suspect has committed a crime involving the infliction or threatened infliction of serious bodily

               harm.

 

 5.         It is important to note that the use of firearms to apprehend fleeing suspects, will in future only be justifies in

             terms of section 49(1), if one of the grounds mentioned in paragraphs 4.1 or 4.2 mentioned above, is present. For

             example, burglars running away from the scene of a housebreaking, may not be shot at, unless the person

             authorized to effect an arrest have reasonable grounds to believe that the burglars pose an immediate threat of

             serious bodily harm, as discussed in par 4.1, or that the burglars have committed a crime which involved the

             infliction or threatened infliction of serious bodily harm. The mere fact that the driver of a car, suspected of being

             stolen, ignores police warnings and speeds away, is not sufficient reason to shoot at the occupants of the car,

             unless one of the grounds mentioned in par 4.1 or 4.2, is present.

 

6.          It is therefore imperative, when a crime is being reported the person who reports the crime give full details of the

             crime to the police with specific reference whether the suspects are:

                                           6.1      Armed on dangerous, or

6.2      Whether any person was injured during the commission of the crime or whether a person

             was threatened with bodily injury during the offence, eg. If any body was threatened with

             a knife or firearm.

 

             This information is important for members of the SAPS to determine the manner in which they are going to

             approach the scene of a crime or to be on the lookout for suspects. In conclusion it is important to note that this

             interpretation of section 49 does not effect the principals of self-defense or defense of necessity. This

             interpretation only comes into effect when a person acts in terms of section 49(1).