A CRITICAL ANALYSIS OF THE CONSTITUTIONALITY OF SECTION 49 OF THE

CRIMINAL PROCEDURE ACT 51 OF 1977

By

Ongeziwe Ngetu
(61136905)

Submitted in partial fulfilment of the requirements for the degree

BACHELOR OF LAWS

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

RRLLB81 ASSIGNMENT 02/ UNIQUE NUMBER: 752433

L C COETZEE

05 JULY 2021
 ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and I am aware of Unisa’s

policies in this regard.
2. I declare that this assignment is my own original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work/s of other people have been referenced according to the prescribed style.
3. I have not allowed, and I will not allow anyone to copy my work with the intention
of passing it off as their own work.
4. I did not make use of another student’s work and try to submit it as my own work.

Name: ONGEZIWE NGETU

Signature:

Student Number: 61136905

Module Code/Name: RRLLB81 (LLB RESEARCH REPORT)

Date: 05 JULY 2021

Topic Selected: THE USE OF FORCE WHEN EFFECTING ARREST IN THE

CONTEXT OF SECTION 49 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977,
AND THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996

Assignment 01 Result: N/A

Assignment 02 Result: N/A

2
ABSTRACT

All laws and conduct must conform to the Constitution, if not, the law and conduct must
then be declared invalid to the extent that it inconsistent with the Constitution. This
paper questions the use of force when effecting arrests in the context of the section
49 of the Criminal Procedure Act 51 of 1977 and the Constitution of the Republic of
South Africa, 1996. This paper sets out the circumstances in which the use of deadly
force is justifiable against fleeing suspects in terms of section 49. In so doing the
principles of interpretation is applied to determine whether section 49 is reasonable
and is aligned with the purport of the Constitution. This paper acknowledges that any
limitation of a right protected under the Bill of Rights must be reasonable and justifiable
in an open and democratic society based on human dignity, equality, and freedom.

KEYWORDS

deadly force; unconstitutional; use of force; arrests; section 49

3
LIST OF ABBREVIATIONS AND ACRONYMS

Abbreviation / Meaning
acronyms

CC Constitutional Court

CPA Criminal Procedure Act 51 of 1997

SCA Supreme Court of Appeal

4
TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION AND BACKGROUND OF RESEARCH STUDY ....... 6

1.1 INTRODUCTION ....................................................................................... 6
1.2 PROBLEM STATEMENT ........................................................................... 7
1.3 HYPOTHESIS ............................................................................................ 7
1.4 RESEARCH METHOLOGY ....................................................................... 8

CHAPTER 2: THE USE OF FORCE WHEN EFFECTING ARRESTS IN SOUTH

AFRICA ...................................................................................................................... 9

2.1 INTRODUCTION .............................................................................................. 9

2.2 THE CRIMINAL PROCEDURE ACT 51 OF 1977 ........................................... 10

CHAPTER 3: IMPLICATIONS OF SECTION 49 OF THE CRIMINAL PROCEDURE

ACT 51 OF 1977 ...................................................................................................... 11

3.1 THE CRIMINAL PROCEDURE ACT AND THE CONSTITUTION ................... 11

3.1.1 The protection of the right to life ........................................................... 12
3.1.2 The protection of the right to freedom and security of the person, including
the right not to be exposed to any private or public violence ......................... 14

CHAPTER 4: THE CONSTITUTIONALITY OF SECTION 49(2) IN GENERAL

SCHEME OF THE BILL OF RIGHTS ....................................................................... 14

CONCLUSION ......................................................................................................... 16

BIBLIOGRAPHY ...................................................................................................... 18

5
CHAPTER 1: INTRODUCTION AND BACKGROUND OF RESEARCH STUDY

1.1 INTRODUCTION

The constitutional soundness of the South African criminal justice does not only
depend on the prosecution of criminals through fair trials but also depends on the
manner in which criminals are brough before the judiciary. Power to arrest is vital in
the implementation of the duty to combat crime however, this power demands a careful
balance of the suspect’s rights to dignity1, life2 and freedom of security of person.3
Arrest constitutes one of the most drastic infringements of the rights of an individual.
The general challenge presented to the justice system by the transition to
constitutional democracy is therefore to adopt an approach towards suspects that
would guarantee that they are apprehended and prosecuted in a manner that is
consistent with the values and ethos of the Bill of Rights.4

It is therefore not surprising that the Criminal Procedure Act 51 of 19775 lays down
strict rules concerning when a person may be arrested.6 With the recent proposed
amendments to section 49 of the Criminal Procedure Act 51 of 1977 dealing with the
use of deadly force in effecting arrests, this controversial provision has become one
of the most amended provisions in the history of criminal procedure of South Africa.
The old section 49 of the Criminal Procedure Act allowed arrestors to use force (even
deadly force) against suspects. This provision was declared unconstitutional by the
Constitutional Court as it made unjustifiable violations to the right to life, the right
human dignity, and the physical integrity of suspects.7

The intention of this research is to analyse the use of force when affecting arrests in
the context of section 49 of the Criminal Procedure Act 51 of 1977 and the Constitution
of the Republic of South Africa, 1996 as well as the constitutionality of section 49.8 In
order to uncover the use of force when affecting arrests and the constitutionality of
section 49 of the Criminal Procedure Act 51 of 1977, the researcher will critically

1
1 Section 10 of the Constitution of the Republic of South Africa, 1996
2 Section 11 of the Constitution of the Republic of South Africa, 1996
3 Section 12 of the Constitution of the Republic of South Africa, 1996
4 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest. 8
5 Criminal Procedure Act 51 of 1977’
6 Joubert JJ, Criminal Procedure Handbook 155
7 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest 8
8 Of the Criminal Procedure Act 51 of 1977

6
analyse the Criminal Procedure Act 51 of 1977, the Constitution of the Republic of
South Africa, 1996 and consider relevant case law.
2

1.2 PROBLEM STATEMENT

Under section 49 an arrestor could use deadly force to use deadly force to overcome
resistance by a suspect or to prevent the suspect from escaping arrest. The question
that arises is whether section 49 of the Criminal Procedure Act 51 of 1977 is
constitutional to the extent that it permits the use of deadly force against a suspect
that is fleeing.

The purpose of this research is to analyse the use of force in arrests in South Africa,
to explore the application of the regulations provided in section 499 when it comes to
the use of force as well as the constitutionality as the regulations provided in the
aforementioned legislation. In terms of the protection of the right to life, freedom and
security including the right not to be exposed to any private or public violence.

The research will include aspects that incorporate the following:

- Does section 49 provide the justification for deadly force?

- What is the constitutionality of section 49(2) in terms of the Bill of Rights?

1.3 HYPOTHESIS

As this research is embarking on a historical research, there is a research aim rather

than a hypothesis. Section 49 provides that police officers (or private individuals
authorized) with the legal justification to use force when carrying out arrests. The
section also includes rules that govern the degree of force to be used and the
circumstances in which such force may be used. The authority of this use of force,
even deadly force, in affecting arrests has been subject to intense scrutiny over the
past years. Through critical investigation of applicable legislation, the constitutionality
of section 49 was challenged in the Constitutional Court and the Supreme Court of

9 Of the Criminal Procedure Act 51 of 1977

7
Appeal in separate cases. 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 2002 (2) SACR 105 (CC)10 where section 49(2)
of the Criminal Procedure Act11 was deemed unconstitutional and declared invalid.12
The research aim is to consider the use of force in arrests in the context of the Criminal
Procedure Act and the constitutionality of section 49 of the Criminal Procedure Act in
terms of the Bill of Rights.

1.4 RESEARCH METHOLOGY

The researcher will make use of a legal historical approach as a method to achieve
the objective of this research. The methodology adopted in this research consists, in
the main, of identification, evaluation and discussion of the Constitution and the
Criminal Procedure Act 51 of 1977 when it comes to the use of force when effecting
arrests. The research uses a desktop method of research. The focus is on both primary
and secondary research sources, literature includes legislation as well as case law.

10 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC)
11 Criminal Procedure Act 51 of 1977
12 Botha & Visser, ‘Forceful Arrests’ (2012) 349/569

8
CHAPTER 2: THE USE OF FORCE WHEN EFFECTING ARRESTS IN SOUTH
AFRICA

2.1 INTRODUCTION

Arrest is one of the methods by which the accused’s presence can be secured in court
for the purpose of a trial.13 When a police official is lawfully authorized to use force,
such force may be used only where there is no reasonable alternative way of achieving
the purpose without using force.14 The authority of police officials and private
individuals to employ force, even deadly force, in effecting arrests has been subject to
intense judicial scrutiny over the past few years.

In discussing the purpose of arrest, the Constitutional Court (hereafter the CC) in the
case of Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105
(CC) (hereafter Walters case) maintained that arrest is not an objective in itself but
rather one of the various ways to ensure that a suspected criminal appears before
court and that arrest may never be used to punish a suspect. The court in this case
did not rule out the use of force and deadly force in order to effect an arrest. It is an
unobjectionable fact that use of force even, deadly force, in effecting arrests is
unavoidable in certain situations. It is explicitly stated that a member may use only
minimum force that is reasonably necessary under the circumstances. Force will be
regarded as reasonable in the circumstances only if the police official has reasonable
grounds for believing that the circumstances to achieve the objective and the effects
that may reasonably be expected from using that degree of force are proportional to
the objective to be achieved.

The requirement that the use of force must be ‘reasonably necessary’ is generally
interpreted as meaning that whatever force used must have been the only viable
alternative to guarantee a successful arrest.15 The arrestor must, before discharging
a firearm at the suspect, issue a verbal warning followed by the discharge of a warning
shot. If this has no effect, the arrestor should direct a shot at the lower body of the
suspect. Force may not be used in order to effect an arrest if the person that is to be

13 Joubert C, Applied Law for Police Officials 290

14 Joubert C, Applied Law for Police Officials 291
15 Botha & Visser, ‘Forceful Arrests’ (2012) 358/569

9
arrested submits himself or herself to arrest, force may not be used.16 The need to use
force may only arise in circumstances where such force would be necessary to
overcome resistance to arrest or prevent a suspect from fleeing. The use of force by
a person, usually a police officer, in effecting arrest or preventing a fleeing suspect
from escaping is regarded as legitimate in most systems of law. In South Africa, the
legal position relating to the use of deadly force has for some time been regulated by
the provisions of the Criminal Procedure Act 51 of 1977 (hereafter the CPA).17

2.2 THE CRIMINAL PROCEDURE ACT 51 OF 1977

The use of force in affecting arrest in South Africa is statutorily governed by section of
the CPA. Section 49 is not any applicable to police officers but also allows private
persons authorized by the CPA to use force in affecting arrests.18 This provision and
its predecessors have formed part of South African law for more than 170 years and
has always been heavily criticised with courts attempting to limit the scope of the
powers conferred by it on a number of occasions.19 Section of 39(1) of the South
African Police Services Act 68 of 199520 prescribes the manner of effecting an arrest.
This section provides that the body of the suspect being arrested is to be ‘forcibly
confined’ If circumstances require such.

Whilst the above section provides the manner of effecting an arrest, section 4921
makes a detailed provision regarding the use of force in affecting an arrest. Section
49 outlines two situations where the use of force may be required i.e. (a) to overcome
resistance by suspects against arrest and (b) to prevent a suspect from fleeing.22 The
old section 49 was composed of two subsections, subsection 49(1) which dealt with
force in general, where the suspect is injured but not killed and subsection 49(2) which
dealt with justifiable homicide which referred to cases where the force used caused

16 Joubert JJ, Criminal Procedure Handbook 153

17 Bruce, ‘Killing and the Constitution – arrest and the use of lethal force’ (2003) 11
18 Van de Walt, ‘The use of force in effecting arrest in South Africa and the 2010 Bill’ (2011) 138/324
19 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.

21
20 South African Police Services Act 68 of 1995
21 Of the Criminal Procedure Act 51 of 1977
22 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest

22

10
the death of a suspect. These subsections were criticised for the wide powers they
offered arrestors. The new section 49 came into force on 18 July 2003 effectively
replacing the legal framework created by the judiciary. The enactment has become the
only source of authority for the use of lethal force in arrests.23 The amendments to
section 49 of the 1977 act24 have further refined and shaped the use of lethal force in
effecting an arrest in South African jurisprudence.25

CHAPTER 3: IMPLICATIONS OF SECTION 49 OF THE CRIMINAL PROCEDURE

ACT 51 OF 1977

3.1 THE CRIMINAL PROCEDURE ACT AND THE CONSTITUTION

The inception of the Constitution brought about a dramatic change in the law.26 Before
constitutionalism in South Africa, laws which contravened the fundamental rights of
people could not be assessed in light of the Constitution. Post 1994, the inception of
the Constitution signalled an era which all laws and conduct that unjustifiably
encroached upon the rights of persons would not be tolerated.27 Due to the nature and
extent thereof, the CPA has always been subject to criticism, even before the birth of
the Constitution.28 The old section 49(1) of the CPA provided the framework for the
use of force only whilst section 49(2) set out the framework for circumstances under
which the use of deadly force would be justified.

Arrest presents one of the most drastic infringements on the rights of the individual.
The judicial restrictions on section 49 have developed over the years and have been
included in judgements, most of which pre-date the Constitution. The CPA and
Constitution contain strict conditions and provisions related to arrest. Not complying
with these provisions could result in an arrest being unlawful. The wording of the ‘old’
CPA prior to constitutional democracy in South Africa made no mention of the

23 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.
38
24 Criminal Procedure Act 51 of 1977
25 Kemp, ‘An analysis of the wording, interpretation and development of the provisions dealing with the

use of lethal force in effecting an arrest in South African criminal procedure’ (2011) 271
26 Van de Walt, ‘The use of force in effecting arrest in South Africa and the 2010 Bill’ (2011) 138/324
27 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.

31
28 Botha & Visser, ‘Forceful Arrests’ (2012) 349/569

11
reasonable grounds on which the arrestor must suspect the arrestee of having
committed the offences.29 The judicial restrictions on section 49 have developed over
the years and have been included in judgements, most of which pre-date the
Constitution. The relevant rights entrenched in the Constitution include the right not to
be deprived of one’s freedom of movement arbitrarily or without cause, the right to
human dignity, right to privacy and sometimes the right to life.

3.1.1 The protection of the right to life

The power to arrest is vital in the implementation of the duty to combat crime but is
also a concept demanding a careful balance of the suspect’s rights to dignity, life and
freedom and security of person, with society’s entitlement to the same rights.30
Subsection 49(1) of the CPA31 governs the use of such force in principle while
subsection 49(2) of the Act deals specifically with what is justifiable homicide. As
section 49 is a provision that authorises the use of force against persons, particularly
justifying homicide, the provision inevitably raises constitutional misgivings about the
relationship with three elemental rights concerned in the Bill of Rights.32 These rights
are the rights to life, human dignity and to bodily integrity. These particular rights are
expressed under sections 10, 11 and 12 of the Constitution.33

In the case of S v Makwanyane 1995 (3) SA 391 (CC) 34 (hereafter the Makwanyane
case), the court held that the rights to life and dignity are the most important of all
human rights and are the source of all other personal rights.35 The court in this case
pointed out that section 49(2)36 was a last resort in situation where an arrestor’s life
was in danger. In the case of Govender v Minister of Safety and Security 2001 (2)
SACR 197 (SCA)37 (hereafter the Govender case), a 17-year-old boy was shot in the

29 Kemp, ‘An analysis of the wording, interpretation and development of the provisions dealing with the
use of lethal force in effecting an arrest in South African criminal procedure’ (2011) 272
30 Botha & Visser, ‘Forceful Arrests’ (2012) 353/569
31 Criminal Procedure Act 51 of 1977
32 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) para [36]
33 Constitution of the Republic of South Africa, 1996
34 S v Makwanyane 1995 (2) SACR 1 (CC); 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)
35 S v Makwanyane 1995 (3) SA 391 (CC) a para [144]
36 Of the Criminal Procedure Act 51 of 1977
37 Govender v Minister of Safety and Security 2001 (2) SACR 197 (SCA)

12
spine and paralyzed when he tried to flee from the police after he had stolen a car.
The respondent in this case submitted that the force applied was justifiable in terms of
section 49(1) as shooting at the suspect was the only reasonable means of preventing
his escape. The respondent’s submission was contended in this case that the use of
force was not justified as section 49(1) violated the suspect’s right to life, the right to
human dignity and the right to physical integrity.38 The Supreme Court of Appeal
(hereafter the SCA) had to investigate the proper interpretation of the old section 49(1)
in the case of Govender. On behalf of the appellant, it was argued that section 49(1)
violated rights contained in the Interim Constitution of the Republic of South Africa 200
of 1993: the right to physical integrity, the right to protection of dignity, the right to be
presumed innocent until convicted by a court of law and the right to equality before the
law and to equal protection from the law.39

Following the Govender case, section 49(2) was questioned before the CC in the case
of Walters. The criminal prosecution in this case arose as a result of a shooting incident
following a break-in at the bakery of father and son, causing the death of the burglar.40
The court referred to the Makwanyane decision where O’ Reagan J had stated that
the right to life is “antecedent to all other right” and that the Constitution “sought to
establish a society where the individual value of each member of the community is
recognised and reassured”.41 The right to life is closely linked to the right to dignity, if
it Is negated then all other rights cease to exist. Any law which limits the right to life
must be ensure that the circumstances make the limitation reasonable and justifiable
under section 36 of the Constitution42 which means that section 49 has the to direct
arrestors in identifying the circumstances in which deadly force would be
constitutionally permissible.43

38 Kemp, ‘An analysis of the wording, interpretation and development of the provisions dealing with the
use of lethal force in effecting an arrest in South African criminal procedure’ (2011) 274
39 Botha & Visser, ‘Forceful Arrests’ (2012) 351/569
40 Botha & Visser, ‘Forceful Arrests’ (2012) 353/569
41 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.

36
42 Constitution of the Republic of South Africa, 1996
43 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.

77

13
3.1.2 The protection of the right to freedom and security of the person, including the
right not to be exposed to any private or public violence

Section 12(1)44 provides that the right to security of person includes the right to be free
from violence from either public or private sources. The right to security of persons is
aimed at protecting individuals against the invasion of their physical integrity. This
physical integrity has been said to be a feature of the right to dignity and as a result,
the right to security of persons enjoys an elevated status within the Bill of Rights.45
When an arrester uses deadly force when effecting an arrest against a fleeing suspect,
the suspect can either sustain bodily injuries or die and the right to security of person
is violated.

Section 12(1)(c) provides for the right to be free from violence from both public and
private sources. This right places a dual obligation on the state as firstly, the state
through its agents must refrain from using force against persons and secondly, it
should proscribe violence by individuals. The Govender46 judgment found that the
purpose of section 49 is clearly to protect the safety and security of all persons through
the deterrence of an effective criminal justice system, thus preventing lawlessness and
a loss of state legitimacy.47 This provision’s object is to ensure that suspects do not
flee from arrest however, this must be brought into balance with the constitutional
rights enjoyed by the fleeing suspect.

4
CHAPTER 4: THE CONSTITUTIONALITY OF SECTION 49(2) IN THE GENERAL
SCHEME OF THE BILL OF RIGHTS

The Bill of Rights spells out the fundamental rights which everyone is entitled to, and
the state is obliged to respect, protect, promote, and fulfil. Section 49 may limit these
rights only if the limitation can be justified under section 36 of the Constitution48
otherwise it has to be declared invalid under section 172(1).49 Subsection (1) and (2)
of section 39 give guidance as to the interpretation of both the rights and the

44 Section 12(1) of the Constitution of the Republic of South Africa, 1996

45 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.
78
46 Govender v Minister of Safety and Security 2001 (2) SACR 197 (SCA)
47 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) para [36]
48 Section 36 of the Constitution of the Republic of South Africa, 1996
49 Of the Constitution of the Republic of South Africa, 1996

14
enactment, essentially requiring them to be interpreted so as to promote the value
system of an open and democratic society based on human dignity, equality, and
freedom.50 Section 49 and its predecessors have been on the statute book for some
165 years and they elicited a good deal of judicial and academic criticism long before
the advent of constitutionalism.51

The criticism arose because the section allows the use of force not only to overcome
resistance but also to prevent flight and sanctions the killing of suspects in limited
circumstances.it is lawful to use force and to inflict bodily harm on a person suspected
of having committed a crime and is resisting arrest or fleeing from it. An arrest by
definition deprives a person liberty and some impairment of dignity and bodily integrity.
The impairment of these rights becomes greater when arrest is accompanied by the
use of force and the use of potentially lethal force jeopardises the most important of
all individual rights, the right to life.52 The main purport of the provision affords a
prospective arrester statutory authority for conduct that could significantly impair an
arrestee’s right to claim protection of each of the three core rights expressed by section
10, 11 and 12 of the Constitution.

The central finding in the Govender case generally limits the use of potentially deadly
force to arrests where the fugitive poses a violent threat to persons on the scene or is
reasonably suspected of having committed a crime having the infliction or threatened
infliction of serious bodily harm.53 this finding is helpful when dealing with the meaning
of section 49(2) and its effect on the fundamental rights alleged to be infringed by this
section. It was found in this case that in section 49(2) there is consequently a manifest
disproportion between the rights infringed and the interest sought to be advanced.54
In the Walters case, the CC held that section 49(2) was unconstitutional in its entirety
as it unjustifiably violated the rights to dignity, life, and security of person. However,
the court was of the opinion that simply removing section 49(2) as a shield against

50 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) para [30]
51 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) para [23]
52 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) para [30]
53 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) para [39]
54 Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105 (CC) para [46]

15
criminal prosecution would be against the principle of legality that does not only form
part of our law but is also supported by section 35(3)(I) of the Constitution.55

In understanding the relevance of the Constitution when questioning the use of force,
even deadly force, in effecting arrest, the CC judgement in the case of Makwanyane
is a useful point of reference as the court declared the death penalty to be
unconstitutional. When deadly force is used there is not much certainty that the person
will be killed as is in the case of the death penalty as gunshots fail to hit their target
and even if they do the person may not die but rather be severely injured.56 However,
the use of deadly force , despite the fact that the death of the person is not certain,
has the same potential as the death penalty to finally and irrevocably end life. This
then results in the denial of all other human rights. The retention of section 49(2) would
be irreconcilable with the abolition of the death penalty. If the state has no right to take
the life in punishment of a convicted criminal, how may it retain the right to kill a person
who is only suspected of having committed an offence?

CONCLUSION

Section 49 has survived constitutional scrutiny and national legislation provides for the
sanctioned use of force when effecting arrests provided that it is in line with the
provision of the Constitution where the sanctity of human life is respected and
emphasized.57 It has been argued in courts that section 49(2) is not a reasonable
limitation and should be declared unconstitutional. This answer is premised on the
given that the death penalty has been declared unconstitutional. The mere suspicion
of a crime, without any proof, is not sufficient to justify the infringement of a person’s
basic right therefore, if a court cannot impose the death penalty it would be arbitrary
for the killing of a suspect be allowed. The purpose of the killing of a suspect should
be considered. At present, deadly force is permitted to effect an arrest or to prevent a
suspect from fleeing. Section 49 not only limits the rights to life, human dignity, to

55 Botha & Visser, ‘Forceful Arrests’ (2012) 355/569

56 Bruce, ‘Killing and the Constitution – arrest and the use of lethal force’ (2003) 8
57 Sami-Kistnan, A critical analysis of section 49 of the Criminal Procedure Act 51 of 1977 52

16
security of the person and to be free from violence from both public and private sources
but negates its irreversibly.58

The power to use deadly force to prevent future death or grievous bodily harm results
in an abuse of power which is reasonably capable of giving rise to unjustifiable
limitations of rights. What this means is that section 49 creates an implied ground for
arresters to use deadly force when effecting arrests as there is no indication that the
suspected offence already committed must be of a nature that involves death or
grievous bodily harm.59 It cannot be overlooked that section 49 empowers any person
to use deadly force. Prima facie, section 49(2) violates the right to life, the right to
freedom and security against cruel, inhuman, or degrading treatment or punishment,
and the right to fair trial which includes the right to be presumed innocent. In all
instances the Constitution must be used to determine the validity of a particular legal
principle or to measure whether the law applicable violates constitutional values.60 In
order to answer the question of whether it is constitutional to use deadly force when
effecting an arrest against a fleeing suspect, one may look at how the use of force,
even deadly force, is defined in the Walters case.

The used of deadly force clearly violates the rights contained in the Bill of Rights. When
it is clear that an enactment is a violation of rights contained in the Bill of Rights, what
the CC ought to do is look at whether such a violation may be justified in an open and
democratic society taking into account the factors listed in the limitations clause.
Section 49(2) may be retained as it is because it will be “read down” and will therefore
be re-interpreted in light of the Constitution.61 In conclusion, this provision will thus
only survive provided that it is interpreted in a manner that is reasonable and justifiable
in an open and democratic society based on human dignity, equality, and freedom.

58 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.
111
59 Albertus, The Constitutionality of using deadly force against a fleeing suspect for purpose of arrest.

112
60 Sami-Kistnan, A critical analysis of section 49 of the Criminal Procedure Act 51 of 1977 51
61 Sami-Kistnan, A critical analysis of section 49 of the Criminal Procedure Act 51 of 1977 32

17
BIBLIOGRAPHY

BOOKS

Joubert C, Applied Law for Police Officials

Joubert C, Applied Law for Police Officials (5 edn, Juta 2018)

Joubert JJ, Criminal Procedure Handbook 153

Joubert JJ (ed) and others, Criminal Procedure Handbook (13 edn, Juta 2020)

CASE LAW

Ex parte Minister of Safety and Security: In re S v Walters 2002 (2) SACR 105
5
(CC)

Govender v Minister of Safety and Security 2001 (2) SACR 197 (SCA); 2001 (4)
SA 273 (SCA)

S v Makwanyane 1995 (2) SACR 1 (CC); 1995 (3) SA 391 (CC); 1995 (6) BCLR
665 (CC)

DISSERTATIONS AND THESES

Albertus, The Constitutionality of using deadly force against a fleeing suspect for
purpose of arrest

Albertus C, The Constitutionality of using deadly force against a fleeing suspect

for purpose of arrest (LLM thesis, University of the Western Cape 2007)

Sami-Kistnan, A critical analysis of section 49 of the Criminal Procedure Act 51 of

1977

Sami-Kistnan K, A critical analysis of section 49 of the Criminal Procedure Act

51 of 1977 (LLM dissertation, University of Pretoria 2011)

18
JOURNAL ARTICLES

Botha & Visser, ‘Forceful Arrests’ (2012)

Rinda Botha & J Visser, ‘Forceful Arrests: An overview of Section 49 of the

Criminal Procedure Act 51 of 1977 and its recent amendments’ (2012) 15

Bruce, ‘Killing and the Constitution – arrest and the use of lethal force’ (2003)

David Bruce, ‘Killing and the Constitution – Arrest and The Use of Lethal Force’
(2003) 19 South African Journal on Human Rights

Kemp, ‘An analysis of the wording, interpretation and development of the provisions
dealing with the use of lethal force in effecting an arrest in South African criminal
procedure’ (2011)

Le Roux-Kemp, Andra & Horne ‘An analysis of the wording, interpretation and
development of the provisions dealing with the use of lethal force in effecting an
arrest in South African criminal procedure’ (2011) 24 South African Journal of
Criminal Justice

Van de Walt, ‘The use of force in effecting arrest in South Africa and the 2010 Bill’
(2011)

Tharien Van de Walt, ‘The use of force in effecting arrest in South Africa and the
2010 Bill’ (2011) 14

LEGISLATION

Constitution of the Republic of South Africa, 1996

Criminal Procedure Act 51 of 1977

South African Police Services Act 68 of 1995

19

Criteria Unsatisfactory - Beginning
Paper Focus: 0-10 points
Introduction/Pu
rpose/ Fails to identify a relevant
Position research topic or is not
Statement clearly defined and/or the
paper lacks focus throughout.
Analysis 0-20 points
Demonstrates a lack of
understanding and
inadequate analysis of the
research topic and argument.
Analysis is superficial based
on opinions and preferences
rather than critical analysis.
Evidence 0-5 points
(Sources)
Lacks sufficient research
sources to support the
central position and/or, if
included, are generally not
relevant, accurate, or
reliable. Contains numerous
factual mistakes, omissions,
or oversimplifications.
Sources, if included, are not
properly referenced and cited
in the paper.
Research Paper Rubric for RRLLB81
Developing
10-14 points
Identifies a research topic but
may be too broad in scope
and/or the introduction which
contains the problem statement
is somewhat unclear and needs
to be developed further. Focal
point is not consistently
maintained throughout the
paper.
21-23 points
Demonstrates general
understanding with limited
critical analysis of the research
topic and argument. The paper
summarises perspectives,
counter-arguments, or opposing
positions.
6-8 points
Provides some evidence to
support the central position with
only a few research sources.
Some sources may not be
relevant, accurate, and reliable
and/or appropriately referenced
and cited in the paper.
Satisfactory
15-16 points
Identifies a relevant research
topic and an introduction that
provides adequate 6 direction
for the paper with some
degree of interest for the
reader. The Introduction which
contains the problem
statement states the position,
premise, or hypothesis, and is
the focal point of the paper for
the most part.
24-25 points
Demonstrates an
understanding and some
critical analysis of the
research topic and argument.
Adequately
compares/contrasts
perspectives,
counter-arguments, or
opposing positions but
broader connections and/or
implications are not as
thoroughly explored.
9-12 points
Provides essential, accurate
evidence to support the
central position The
researcher uses current and
relevant sources additional to
those prescribed in a mostly
insightful and relevant manner.
Sources are referenced and
cited appropriately throughout
the paper for the most part.
Good Tota
l
17-20 points /20
Identifies a relevant research topic and a
theory that provides direction for the paper
that is engaging and thought provoking,
The arguments/problem statement and the
introduction clearly and concisely states
the position, premise, or hypothesis and is
consistently the focal point throughout the
paper.
26-30 points /30
Demonstrates a sophisticated
understanding and careful, critical analysis
of the research topic and argument.
Compares/contrasts perspectives,
considers counter arguments or opposing
positions, and draws original and thoughtful
conclusions with future implications.
13-15 points /15
Provides compelling and accurate
evidence to support in-depth the central
position. Research sources are highly
relevant, accurate, and reliable and add to
the strength of the paper; and are
effectively referenced and cited throughout
the paper.
1

Criteria Unsatisfactory - Beginning
Organisation 0-6 points
and Citation
Paper does not meet the criteria
for the assignment (too short or
incomplete, too long, and/or
completely off-topic). Does not
tie together information. Paper
does not flow and appears to be
created from disparate issues.
Paper lacks logical organisation
and impedes readers’
comprehension of ideas. Central
position is rarely evident from
paragraph to paragraph and/or
the paper is missing multiple
required components.
Writing Quality 0-4 points
& Adherence to
Format Paper shows a below
Guidelines average/poor writing style
lacking in elements of
appropriate standard English
and following proper CLAW
guidelines. Frequent errors in
spelling, grammar, punctuation,
spelling, usage, and formatting.
Integration of 0-1
Knowledge
The paper does not demonstrate
(This criterion that the author has fully
ties in with the understood and applied research
Analysis and writing skills and legal
measure above) concepts learned in their degree
programme.
Research Paper Rubric (continued)
Developing
7-10 points
Paper is somewhat
organised, although
occasionally ideas from
paragraph to paragraph may
not flow well and/or connect
to the central position or be
clear as a whole. Many ideas
require clarification and/or
are off-topic or have marginal
relevance to the assignment.
Sometimes ties together
information from all sources.
May be missing a required
component and/or
components may be less
than complete. Cites some
data obtained from other
sources. Citation style is
either inconsistent or
incorrect.
5-7 points
Paper shows an average
and/or casual writing style
using standard English and
following CLAW guidelines.
Some errors in spelling,
grammar, punctuation,
usage, and formatting.
2-3
The paper demonstrates that
the author, to a certain
extent, understands and has
applied research and writing
skills and legal concepts
learned in their degree
programme.
Satisfactory
11-15 points
Most ideas are stated clearly
and are related to the topic,.
Paper is adequately
organised. Ideas are arranged
reasonably with a progression
of thought from paragraph to
paragraph connecting to the
central position. For the most
7part, ties together information
from all sources. Includes
required components
(introduction, body,
conclusion, Reference List,
etc.) for the most part. Cites
most data obtained from other
sources. CLAW citation style
is used in both text and
bibliography.
8 points
Paper shows above average
writing style and clarity in
writing using standard English
and following CLAW
guidelines. Minor errors in
grammar, punctuation,
spelling, usage, and
formatting.
4 5
The paper demonstrates that
the author, for the most part,
understands and has applied
research and writing skills and
legal concepts learned in their
LLB Degree. Some of the
conclusions, however, are not
supported in the body of the
paper.
Good Total
16-20 points /20
Writing is clear and relevant, Paper is
effectively organised. Ideas are arranged
logically, flow smoothly, with a strong
progression of thought from paragraph to
paragraph connecting to the central
position. Ties together information from all
sources. Includes all required components
(introduction, body, conclusion, Reference
List, etc.).
Cites all data obtained from other sources.
CLAW citation style is used in both text and
bibliography.
9-10 points /10
Paper is well-written and clear using CLAW
guidelines and standard English
characterised by elements of a strong
writing style. Basically free from grammar,
punctuation, spelling, usage and
formatting errors.
/5
The paper demonstrates that the author
fully understands
8 and has applied concepts
learned in their LLB Degree. Research and
writing skills and legal concepts are
integrated into the writer’s own insights.
The writer provides concluding remarks
that show analysis and synthesis of ideas.
TOTAL POINTS (sum of 6 Criteria) /100
2
 RESULTS
20 = 28

30 = 26

15 = 13

10 = 8

5 = 5

------------------------------

Total = 80 / 100 (80%)

 COMMENTS
1 Fix citation errors Add full stops to footnotes
2 Make spacing uniform throughout
3 Clearly conclude your introduction and introduce your body of work
4 Each chapter on a new page
5 Case names in italics
6 Ensure that the focal point is carried through and that the paper ties together as a whole
7 Fix citation errors
8 Overall great work!