n Stellenbosch Law Review = Stellenbosch Regstydskrif - Geregverdigde doodslag by inhegtenisneming : die bepalings van die nuwe artikel 49 van die strafproseswet




Section 49 of the Criminal Procedure Act 51 of 1977 deals with the use of force, including deadly force, in effecting arrest. In <I>Ex parte Minister of Safety and Security: in re S v Walters&lt;/I&gt; 2002 2 SACR 105 (CC) the Constitutional Court held that the section was too broadly worded to be constitutional. The legislature then amended the formulation of the section. The amended version of the section came into operation in 2003. In this article the wording of the new section is investigated. It is argued that there is no substantial difference as far as meaning is concerned between paragraphs (a), (b) and (c) of subsection (2) of the section. It is furthermore argued that the proviso in subsection (2) is not limited to cases of private defence or putative private defence. As a result of the insertion of the words ''or future'' in paragraphs (a) and (b) of subsection (2), the proviso also applies to situations where an arrestor kills or seriously injures an arrestee whose conduct at the time of the arrest does not pose an imminent threat to the safety or security of the arrestor or anybody else. The arrestor must, however, believe on reasonable grounds that the arrestee will pose some threat to the life or physical integrity of another some time in the future. Furthermore, the defence created in this section is only a ground of justification, that is a defence which excludes the unlawfulness of the act. The section does not deal with the element of culpability <I>(mens rea)</I>. In order to decide whether an arrestor whose reliance on this defence fails, is guilty of murder, culpable homicide or perhaps not guilty of any crime, a court simply applies the ordinary principles relating to intention and negligence.


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