Cabinet has approved what is now commonly known as the “Shoot to Kill” Bill, an amendment to Section 49 of the Criminal Procedure Act of 1977. The amendment has not been made public as it still awaits the go
ahead from state law advisers.
Cabinet has approved what is now commonly known as the “Shoot to Kill” Bill, an amendment to Section 49 of the Criminal Procedure Act of 1977. The amendment has not been made public as it still awaits the go
ahead from state law advisers.
In its original form, Section 49 does not allow police to shoot at fleeing suspects. According to the soon to be introduced amendment, police can shoot fleeing suspects, which brings into question how and when officers may shoot a suspected criminal from behind.
In an interview with Grocott’s Mail, Grahamstown attorneys Brin Brody and Lionel Trichardt spoke about the implications of the amendment.
Brody says the police are allowed to shoot to kill in defence of their own lives, but cannot shoot someone who is running away.
Trichardt said that Section 49 applies when serious crimes like murder, attempted murder rape robbery and assault with intent to do grevious bodily harm are committed.
He also said that General Bheki Cele said police are allowed to shoot if they believe a serious crime is being committed.
The section allows police to use what is termed “even force” (manhandling a suspect) to effect an arrest or to prevent a crime being committed.
The amendment will invoke an officer’s right to shoot at fleeing suspects or those who are suspected of committing serious crimes.
However, the Bill limits the public in terms of helping out in a serious crime scenario. “If you see someone being murdered, you cannot shoot and criminals know that,” said Brody.
Brody said he is worried about the implications of the new Bill. “It is friendlier for the criminals and the guilty can flee easily,” said Brody. He thinks the changes will be detrimental to the public as they further protect the rights of criminals.
In a short interview over the telephone with Grocott’s Mail, national spokesperson of the SAPS,
Colonel Lindela Mashego said: “General Bheki Cele never said ‘shoot to kill’. The media has coined
the term ‘shoot to kill’.It does not exist in police vocabulary and police documents.”
He said that members of the police service are only allowed to to use deadly force within the ambit of the law.
“For example, if a police officer’s life is under threat and they have a firearm, they must use it,” said Mashego.
He further added that General Bheki Cele said police are given guns, so they must use them. Mashego said the Bill is no excuse for trigger happy officers and that there will be ramifications for officers who misuse their firearms.
“Trigger happiness will be checked to see if it is within the law,” said Mashego. He added that the legality of the usage of the firearm is checked internally by the inspectorate and externally by the Independent Complaints Directorate (ICD).
SECTION 49 of the Criminal Procedure Act (CPA) of 1977 in simple terms reads: (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
of having committed such an offence, and the person authorised under this Act to arrest or to assist is arresting him cannot arrest him or prevent him from fleeing by other means than killing him, the killing
shall be deemed to be justifiable homicide.
Section 49(2) authorises an arrester, under the protection of the defence called justifiable homicide, to kill a person who resists arrest or flees arrest.
The requirements for a successful defence of justifiable homicide were that it should be proved that: (a) the accused intended to affect arrest and had the authority to do so in terms of the CPA; (b) the accused (arrestor) must have known that the deceased committed a schedule 1 offence, such as murder; (c) the
accused must have attempted to arrest the deceased and the deceased must have resisted arrest or have taken flight; (d) the deceased must have been aware that an attempt was been made to arrest him; (e) the
accused must have intended to kill the deceased and; (f) that there was no other practicable and reasonably effective means of arresting the deceased or preventing his flight than killing him.
