The law says that when the police make a lawful arrest, they can use force if you try to fight or run away. The law says that the amount of force must be just enough to stop you fighting or running away. The Criminal Procedure Act, section 49, deals with the right for police (or someone entitled to make an arrest) to use deadly force in certain situations. Section 49(1) of the Act deals with the use of force to carry out an arrest. Section 49(2) says that ‘deadly force’ may be used

in certain circumstances to carry out an arrest. The clause was challenged in the Constitutional Court because it was held to go against a person’s right to life [Section 11 of the Bill of Rights] as well as their right to human dignity [Section 10 of the Bill of Rights] and bodily integrity [Section 12 of the Bill of Rights]. These rights had to be balanced with the interests of a just criminal system.

(See: Problem 8: Police shoot and injure while making an arrest)

In the case of S v Walters (May 2002) Walters and his son had been charged with murder after they shot a suspect running away from their bakery one night. The state (the prosecution) said Walters had no right to kill a suspect in the process of carrying out the arrest. The Court found that section 49 must be interpreted to exclude the use of a firearm unless:

• The suspect is threatening to harm the person arresting him or her or someone else, or
• The suspect is suspected of having committed a serious crime involving or threatening harm to a person.

Section 49 of the Criminal Procedure Act has subsequently be amended. The Court found that the provisions in section 49(2) allowing the use of ‘deadly force’ for arrests were too wide and were therefore unconstitutional. For example, using ‘deadly force’ in the case of a person caught shoplifting would not be justifiable.

The court summarised the main points regarding the use of force to make arrests under this section:

• Force can only be used where it is necessary in order to carry out the arrest
• Where force is necessary, then the least amount of force to carry out the arrest must be used
• When deciding what degree of force is reasonable and necessary, all the circumstances must be taken into account including:
  • the threat of violence from the suspect to the arrestor or someone else, and
  • the nature and circumstances of the offence committed by the suspect (the force must be proportional to the offence)
• Shooting a suspect for the sole purpose of making an arrest is only possible in limited circumstances, for example when:
  • there is a threat of violence from the suspect to the arrestor (person arresting them) or someone else
  • the suspect is suspected of having caused someone serious harm
  • there is no other reasonable way of carrying out the arrest, at that time or later
  • the arrestor is acting in self-defence or in defence of any other person

The case of Andries Tatane, an unarmed protester shot dead by police in Ficksburg, as well as the shooting of 34 strikers in Marikana, are examples of cases where the use of force may have been excessive.