To Shoot or Not to Shoot – Mason Incorporated

INTRODUCTION:

Generally speaking and for the purpose of this workshop the use of lawful force in the form of shooting at another person is limited to two situations, namely:-

In a situation where one could rely on the defence of private defence;
Relying on the provisions of Section 49 of the Criminal Procedure Act 51 of 1977.

WHAT IS PRIVATE DEFENCE:

The use of force which would ordinarily be criminal is justified if it is necessary to repel an unlawful invasion of person, property or other legal interest. Since the right to use force in these circumstances not only goes beyond the defence of life and limb, but also extends to the protection of a third party, the term “self defence” is too narrow and “private defence” is preferred. See S A Criminal Law and procedure, volume 1, general principals of Criminal Law, Burchell and Hunt 1983 at page 322. Private defence is directed against the wrongdoer.

REQUIREMENTS OF PRIVATE DEFENCE:

In a consideration of the requirements of private defence it is convenient to treat the attack and the defence separately.

A. THE ATTACK:

To give rise to a situation warranting action in defence there must be:-

an unlawful attack upon
a legal interest which had
commenced or was imminent.

Private defence is only available if the attack is unlawful. Thus a person may not defend himself against lawful arrest.

ATTACK UPON A LEGAL INTEREST:

Clear cases of the above are defence of life and personal injury from assault.

ATTACK COMMENCED OR IMMINENT:

The attack must have commenced or be imminent. It will not avail you to use force against another if the other person’s attack is only to begin at some time in the future. Only protective measures may be taken against an anticipated future attack. On the other hand, if the attack is immediately threatened it will be absurd to suggest that one must wait until the blow has fallen before acting in defence. Any measures taken by a person after the complainant’s attack has ceased will be retaliatory rather than defensive and therefore unjustified.

B. THE DEFENCE:

In addition to the above requirements of the attack, for private defence to excuse criminal liability the defence must be:

directed against the attacker; and
necessary to avert the attack; and
the means used for this purpose must be reasonable in the circumstances.

DEFENCE DIRECTED AGAINST THE ATTACKER:

The right of private defence can only be exercised against the attacker, not against a third party. Thus, for example, if X in defending himself against Y’s attack, throws a stone at Y, which misses him and hits Z, a passer by, X cannot plead private defence to a charge of assaulting Z.

DEFENCE NECESSARY TO AVERT THE ATTACK:

A person is only justified in acting in defence if it is necessary for him to do so in the sense that the unlawful attack could not be averted in any other way. In short, the test being objective, the issue is whether, in all the circumstances, a reasonable man would be expected to stand his ground and act in defence.

REASONABLE MEANS TO AVERT THE ATTACK:

Not only must defence be necessary but the means used by the person relying on private defence for the purpose of averting the attack must also be reasonable in the circumstances. The limits of private defence are impossible to describe with any degree of precision because everything depends upon the facts of each particular case. All the factors will have to be taken into account in deciding whether, in the circumstances of the particular case, the means used by the person relying on private defence were reasonable and hence justified, or whether he exceeded the bounds of reasonable private defence. The test being objective, the Court puts the reasonable man in the position of the person relying on private defence, subject to all the external circumstances to which the person relying on private defence was exposed at the material time. Moreover, “the Court adopts a robust approach”, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self defence. In that case see State vs. Ntuli 1975(1) S A 429A at 437E.

THE TEST OF PRIVATE DEFENCE:

Whether conduct is unlawful or not depends upon whether or not it contravenes a rule of either common or statute law, and hence it is a question of external fact. It is not surprising therefore to find general agreement that, subject to the qualification referred to in the next paragraph, the test of whether the person relying on private defence acted justifiably in defence is normally objective. This means that each requirement of the attack and of the defence must be judged from the external point of view, the person relying on private defence’s beliefs and his assessment of the position being usually relevant only to the question of whether they would have been shared by a reasonable man. Our Courts have always insisted, however, that they must be careful to avoid the role of arm-chair critics, wise after the event, weighing the matter in the secluded security of the Court room, by putting themselves in the position of the person relying on private defence at the time of the attack.

The objective test is, however, subject to an important qualification. The person relying on private defence cannot benefit from knowledge which he possesses and which a reasonable man might not have.

DEFENCE OF THIRD PARTY:

A person has the same right to use force in the defence of another from a threatened danger as he would have to defend himself, if he were the person threatened. No special relationship between the parties need be shown.

USE OF FORCE IN TERMS OF SECTION 49:

Section 49(2) of the Criminal Procedure Act states the following :

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.

In State vs. Martin a policeman witnessed a thief grab his wife’s purse from her handbag. The thief ran away and the policeman chased him. He shouted to him a number of times that he was a policeman and that the thief should stop. A member of the public brought the thief to the ground but he managed to get up and carry on running. After a chase of approximately 300 metres the policeman fired a single shot at the thief, which hit him on the back of the head as a result of which he died. The policeman relied on Section 49(2) and alleged that he could not fire a warning shot as there were by-standers and cars in the vicinity. The Court rejected this defence and held that the policeman was obliged, in the circumstances, to fire a warning shot.

The policeman thought that he was entitled to shoot at the thief without firing a warning shot. The Court held that a reasonable policeman with his training and experience would have thought to fire a warning shot and would also have appreciated the necessity thereof. His failure to do so meant that he was negligent and that he could be convicted of culpable homicide.

In a Special Service Order 31/1/5/3 dated 7 January 1997 the South African Police Legal Services issued an instruction relating to the use of force in effecting an arrest. It stated, inter alia, that no member may use force which is likely to cause the death of the person to be arrested unless such person has committed or is reasonably suspected of having committed one of the following offences :

Treason;
Sedition;
Public violence;
Murder;
Rape;
Robbery, including robbery of a motor vehicle;
Theft of live stock, excluding poultry;
Theft of a motor vehicle;
Kidnapping;
Child stealing;
Assault, when a dangerous wound is inflicted;
Arson;
Housebreaking, whether under common-law or a statutory provision, with intent to commit an offence referred to in this schedule.
Any offence under any law relating to intimidation or terrorism or control over armaments, arms ammunition, explosives, drugs or radio active material and in respect of which a punishment of imprisonment for a period of 5 years or longer may be imposed.
Any offence involving serious violence which is life threatening or the use of a firearm or explosives or the threat thereof.
Any conspiracy, incitement, or attempt to commit any offence referred to above, or complicity in the commission of any such offence.

For the purposes of these instructions, discharging a firearm at a person shall be regarded as the use of force which is likely to cause death, irrespective of the part of the body aimed at.

If a member believes on reasonable grounds that the use of force will be necessary to effect an arrest, such member must, where it is reasonable in the circumstances to do so, issue a clear warning to the person who is to be arrested that force will be used against him or her unless he or she submits himself or herself to custody.

Furthermore, where a member reasonably believes that it will be necessary, in order to effect the arrest, to fire a shot at the person to be arrested, a warning shot must precede any shot fired at the person, unless the firing of a warning shot may endanger the lives of other people or could reasonably be expected to have the result that the person will escape the arrest.

Once a member has concluded that the use of force is reasonably necessary in the circumstances to effect the arrest, such member must consider whether the use of the type and degree of force, which will be necessary to effect the arrest, is proportional to the seriousness of the offence committed by the person.

REQUIREMENTS OF SECTION 49(1)

Before you can rely on the above Section you will have to prove the following:

You were authorized by the Criminal Procedure Act to arrest the person who had been injured or to assist in his arrest.
You made an attempt to arrest the injured person – You must actually have made an attempt to deprive him of his freedom in order to secure his presence in Court and not to punish him.
The injured person resisted arrest and could not be taken into custody without the application for force, or the injured person fled whilst it was clear to him that an attempt was being made to arrest him and such flight could not be prevented without the use of force.
The force which was used to overcome the resistance or to prevent the flight was reasonably necessary in the circumstances.

Section 49(1) applies to the use of lawful force in the execution or completion of arrest in those cases in which the force did not bring about the death of the victim.

The force which was used to overcome the resistance or to prevent the flight must be reasonably necessary in the circumstances.

The practicability of the ideal sequence of steps which should be taken in a pursuit situation in order to prevent escape, namely a verbal warning, a warning shot, a shot at the legs and then, as a last resort, a shot with the intention to kill, depends on the circumstances and will be workable and effective only in an ideal case.

Warning shots, for example, would be considered only if the lives of other innocent people would not thereby be placed in jeopardy.

If an officer is in the process of making an arrest and had sufficient time and opportunity to warn an escapee that he (the escapee) would be fired upon should he not halt, and there was no risk to bystanders, before firing and either wounding or killing the escapee, then it could be reasonably assumed that the officer responsible for the incident used unreasonable, excessive and unlawful force. See Minister of Law and Order vs Ntsane 1993(1) SACR 256 (A) at 262 c – d.

THE GOVENDER DECISION DELIVERED ON 1 JUNE 2001

This case involved the shooting by a policeman called Cox of a fleeing suspect Govender, and was initially heard in the High Court. The Court held when referring to the use of force in effecting arrest:
“If any person authorised under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person –

resists the attempt and cannot be arrested without the use of force; or
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”. The Judge hearing the matter in the High Court found that the action taken by the policeman Cox was reasonably necessary to prevent Govender from escaping and thus found that Cox had acted lawfully.

The Judge held that it seemed to him that at common law and in terms of Section 49(1) the Courts approach each case on its own facts and circumstances in the general context of our society and, of course, also the constitution in deciding in each particular case whether the degree and type of force applied was the minimum force possible, reasonably, necessary and proportionate, such as to justify a reliance upon Section 49(1).

The case, however, went on Appeal, and in the Appellate Division it was argued on behalf of Govender that the aforesaid reasoning lost sight of the constitutionally protected rights to which even a fleeing suspect in the position of Govender is entitled. These are right to life (Section 9), a right to physical integrity (Section 11(I)), 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)). The Supreme Court of Appeal had to answer the following question: When is a statutory provision allowing the wounding of a fleeing suspect under certain circumstances reasonable and justifiable in an open and democratic society based on freedom and equality? This inquiry involves a close scrutiny of the circumstances under which Section 49(1) of the Act allows the wounding of a fleeing suspect. Section 49(1) of the Act permits “the use of such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing”.

The threshold requirement laid down in Section 49(1) as interpreted until now is extremely low. It does not expressly qualify the nature and extent of the force which may be used. In an Appellate Division case, Matlou vs. Makhubedu, the Court required proportionality between the degree of force used and the seriousness of the crime of which the suspect is suspected.

The Appellant argued that the aforesaid threshold requirement is too low and does not comply with the constitutional standards of reasonableness and justifiability. Those standards, so it was argued, at the very least require a further factor to be taken into account, that is whether the suspect poses an immediate threat or danger of serious physical harm to the Police Officer pursuing him, or a threat of serious physical harm to others.

The Court was of the view that in giving effect to Section 49(1) of the Act, and in applying the constitutional standard of reasonableness, the existing (and narrow) test of proportionality between the seriousness of the relevant offence 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 as a whole.

In this matter there was no allegation of hi-jacking, assaults, or other acts of physical violence having been perpetrated by Govender or the other passengers in the car. Nor was there any threat or danger to the Police or members of the public.

Can it be said that in our law the protection of property (via the Criminal law system) is invariably more important than life or physical integrity? Surely not.

The words “use such force as may in the circumstances be reasonably necessary …. to prevent the person concerned from 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 weapon unless the person authorised to arrest, or assist in arresting, a fleeing suspect has reasonable grounds for believing:

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
that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm.

Accordingly the Appellate Division reversed the decision of the Trial Court and held that Cox acted unlawfully in shooting at and wounding Govender.

Prepared By
Petrus Coetzee