The art lies in the detail

Police power to arrest is vital in the implementation of this duty to combat crime, but is also a concept demanding careful balancing of the suspect’s rights to dignity, life, and freedom and security of person, with society’s entitlement to the same rights. The use of force while effecting arrests is legitimate in most systems of law. However, what normally gives rise to dispute is the degree of force to be permitted.

The authority of police to employ force, even deadly force, in effecting arrests has been subject to intense judicial, as well as media scrutiny over the past few years. In 2003, police powers to use deadly force was considered and subsequently limited by a Constitutional Court decision in Ex Parte Minister of Safety and Security: In re S v Walters. Section 49(2) of the Criminal Procedure Act 51 of 1977 was deemed unconstitutional and declared invalid.

Some legal experts viewed this decision as a legislative guarantee of a suspect’s right to flee, while others stated that the 2003 redefined section 49 required arrestors to make split-second decisions in daunting circumstances, prompting one to reason that section 49 only sanctioned use of force during arrests in situations of private defence. This concern was shared by the Minister of Safety and Security at the time the 2003 redefined section 49 was promulgated.

In 2009, after the release of daunting statistics on the amount of police officers killed in the line of duty, senior government officials made public declarations that seemed to promote the idea of using deadly force in combating crime. This was followed by prominent cases of abuse of the power to use lethal force. This seems peculiar, as there were no legislative or policy amendments regarding the use of force by police during this time.

It was this enabling environment, and a legally questionable precedent, that led to the Marikana massacre and the innocent killings of Mido Macia and Andries Tatane.

The unfortunate part is that similar incidents happen everyday. But it is only when the brutality that has become endemic is captured on video that we suddenly seem to express outrage and shock at the police brutality.

Where the police becomes a law unto themselves, where it serves itself as at war with the community, where it is politicised and sees its tasks as protecting the leaders of a specific faction of the governing party (as in the apartheid era), then the police becomes a threat to democracy. When that happens, the police stop being an institution in service of democracy and begin to be an institution in service of itself. In a constitutional democracy like ours, such a state of living cannot be acceptable.

For any legal assistance feel free to pay Mdladla Attorneys a visit at 302 KaMkholo Building 26 Brown Street or call them on 013-753-2943.