Shoot to kill: Cops need all the help they can get

Approximately five years ago I argued an appeal in the North Gauteng High Court where the conviction and sentence of a police sergeant, who had been convicted of murder and sentenced to 12 years, were overturned and replaced with culpable homicide and a suspended sentence.

In brief — responding to calls from people, whose houses surrounded a small plot, that robbers were breaking into the home on the small holding, the sergeant and another (not a police officer) drove to the scene.

Upon arrival it was completely dark. The pair spotted a figure in the garden. The sergeant called out “police” whereafter the suspect began to run. During the chase he fired two or three warning shots aimed high but due to the uneven nature of the ground one hit the suspect who died.

It was as clear to me when I took over the case — after the conviction — as it was to the judges who presided over the appeal, that the dolus required for murder could never be sustained on the facts on record.

Section 49 (set out in full below) was of no assistance in this case despite the fact that robberies and murders were frequent in that area. South Africa’s crime rate — even now — is staggeringly high and the fact that people had called in to report a robbery in the middle of the night.

Based upon that background alone you would have to believe that there was merit in Section 49 rescuing him from a murder conviction. Add to that the fact that in pitch black darkness, a suspect when confronted with the words “police halt” took off at a sprint and you would think it was a slam dunk.

What many don’t realise is that there is a ton of case law which breaks down what constitutes terms like “reasonable grounds” and when “force is immediately necessary”.

This has ended up with many policemen and women being too terrified to draw their weapons until it is too late.

The death toll among South African Police is again staggering and worthy of being declared a national disaster. Many of our criminals carry weapons and a substantial number use them if confronted and sometimes without any basis at all.

South Africans are united in the call to reduce crime.

President Jacob Zuma and the minister of police, Nathi Mthethwa, have been seeking measures to bolster the police in this “war”.

An amendment has now been drawn in respect of Section 49 of the Criminal Procedure Act, 1977 (Act 51 of 1977) in order to give the police further relief in specifically defined areas. This has been approved by the Cabinet and is now with the state lawyers to check its constitutionality before going before Parliament for hearings.

That it is long overdue is, to my mind, without question.

No doubt there will be instances where it will the subject of abuse debates but in terms of our society the police need to be able to deal effectively with crime.

Human-rights activists are concerned that some police might become cowboys if they keep getting told that it’s “shoot to kill” time. This, however, is not really the problem. There are always going to be gung-ho members of the police or military. The law will never be wide enough to cover their actions and they will face the appropriate sanctions.

What you have got to ensure is that overall the people responsible for law and order have the ability to defend the public in a meaningful way or the amount of people who will be killed or injured by the violent criminals in this country will surpass the exceptions — that in reality the activists are guarding against — by many many thousands.

Sometimes when you are too busy trying to do good you overlook the bigger picture.

In trying to ensure that the police are not too eager to shoot to kill you overlook the fact that criminals in South Africa couldn’t give a continental damn. By guarding against the odd police rebel and making our law enforcement less effective they land up occasioning widespread murder as opposed to the exceptions they are trying to avoid.

Remember too that any legislation is tested by the judiciary, which more often than not reduces the effect if it is too harsh.

While we are yet to be privy to the wording of the amendment one thing is clear, the police need whatever assistance the legislature can give them and far more certainty when required to use deadly force.

49. Use of force in effecting arrest.
(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.