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n Tydskrif vir die Suid-Afrikaanse Reg - 'n Grondwetlike oorsig oor die gebruik van geweld tydens arrestasie deur die Suid-Afrikaanse Polisiediens
The use of force during the apprehension of a person by a member of the South African Police Service
The law regarding the use of force during arrest has developed significantly in the post-constitutional South Africa. The use of force in South Africa is governed by section 49 of the Criminal Procedure Act 51 of 1977. The two subsections of this section were challenged on constitutional grounds in the two highest courts in the country during 2001 and 2002 respectively. S 49(1) was found not to be unconstitutional by the supreme court of appeal in Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA). The court however found that the section had to be interpreted restrictively in order to comply with the constitution. S 49(2) was found unconstitutional in S v Walters 2002 2 SACR 105 (CC) and as such declared invalid. At the time, the amendment to s 49, s 7 of the Judicial Matters Second Amendment Act 122 of 1998, has already been passed by parliament but due to the opposition of the minister of safety and security it only came into operation during 2003, after the constitutional court's decision in the Walters case. This article seeks to analyse the use of force during arrest in South Africa with reference to, inter alia: s 49 of the Criminal Procedure Act before its amendment and the decisions in the Govender and Walters cases; the decisions in the Govender and Walters cases; the amendment of s 49 and the relevant provisions of the South African Police Services Act 68 of 1995, South African Police Service Orders and Instructions.
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