n South African Journal on Human Rights - Killing and the Constitution - arrest and the use of lethal force




This article sets out the major developments relating to s 49 of the Criminal Procedure Act (the law relating to the use of lethal force for arrest) since 1994. It then looks at the relationship between the questions of principle raised by the Constitutional Court in <I>S v Makwanyane</I>, and the use of lethal force. Finally it looks at the South African legal framework as defined by the 1998 Amendment to s 49, which was brought into operation in July 2003, in relation to the leading judgments of the Supreme Court of Appeal and the Constitutional Court on the matter. It focuses on three key questions relevant to understanding provisions on the use of lethal force for arrest. Firstly, the types of offences or situations in relation to which the use of lethal force for purpose of arrest may be justified. Secondly, is it acceptable for the power to use lethal force for arrest to be available to the public or should it be restricted to the police? Thirdly, considering the risk of error, what is an appropriate standard of belief for the use of lethal force to be justified, considering its potentially irreversible fatal consequences? While supporting the principles embodied in the legislation, the article argues that the 1998 amendment is inadequate as it lacks clarity and that, considering the South African context, this is inappropriate for lethal force legislation. In addition, neither the legislation nor the leading court judgments focus on the potential for error.


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