Author: Kabelo Komana – Candidate Attorney
* Article supervised by Candice Pillay- Director
As South Africans remain indoors for an extended lockdown until the end of April 2020, reports of excessive use of force and unlawful assaults have been reported to enforce the lockdown.
A previous article “The State of the Law during Lockdown” set out the powers of enforcement officers during a state of disaster, confirming that enforcement officers are primarily peace officers and that the South African Police Services (SAPS) had powers to investigate and prosecute criminal offences. In investigating and prosecuting these offences, only the SAPS were authorised to use the minimum of force necessary to carry out their duties and where force was necessary, the use of force as a measure of compliance needed to be authorised.
With the onset of the lockdown, however, various reports have emerged on social media and in the news of incidents where enforcement officers allegedly assaulted civilians who were believed to not be complying with the lockdown.
Regulation 11G of the regulations issued in terms of section 27(2) of the National Disaster Management Act 67 of 2002 states that any person who contravenes these regulations will be liable to a fine or imprisonment not exceeding six (6) months. The regulations do not confer or authorise the use of force on members of the public to comply with the national lockdown.
Police brutality is defined as the unlawful abuse of the capacity to use force by a police or peace officer. It includes unlawful detention, unlawful arrest, malicious prosecution and physical assault by enforcement officers on citizens, while they are conducting their functions as enforcement officers.
The use of force becomes most pertinent when effecting an arrest of an individual suspected of committing a criminal offence. Section 39(1) of the Criminal Procedure Act 51 of 1977 states "Unless the arrestee submits to custody, an arrest is effected by actually touching his person or, if the circumstances so require, by forcibly confining him".
Furthermore, S49 of the Criminal Procedure Act empowers a police official to “use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances.”
Section 49 confirms further that deadly force may only be used in circumstances whereby “the suspect poses a threat of serious violence to the arrestor or any other person or where the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later”.
In addition, the Regulation of Gatherings Act, No. 205 of 1993, at Section 9(2) provides a framework for the use of force by the police in circumstances where a gathering poses a danger to persons or property which cannot be averted by other steps, or where the gathering is prohibited, as is the case with the lockdown. Again, the use of force in gatherings must first be authorised if the circumstances warrant it.
This test is confirmed in the South African Police Services Act, 68 of 1995 at Section 13(3)(b) that "Where a member who performs an official duty is authorised by law to use force, he or she may use only the minimum force which is reasonable in the circumstances".
The legislative frameworks empower the police and all enforcement officers to proceed cautiously with implementing the lockdown. Any instances where excessive force has been used will need to stand up to legislative scrutiny and if it fails, the State will be found liable to pay compensation to victims of such police brutality.
Lawtons Africa pro bono lawyers are available to assist with any police brutality cases during the lockdown period.
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