Debate reignites over police ‘shoot to kill’ law as reforms are proposed

Section 49 of the Criminal Procedure Act, which governs the use of deadly force by police officers, is again being reviewed by the South African Law Reform Commission.

Among the proposed amendments, open for public comment, is tightening the regulations on how and when officers can use lethal force during an arrest.

Gareth Newton of the Institute for Security Studies said the laws surrounding self-defence and the defence of others are not affected.

“The controversy lies in the fact that this law allows police to shoot at someone who is not posing an immediate threat. The concern is that officers might mistakenly shoot a suspect who turns out to be innocent.

“The real debate is whether this law provides enough safeguards to ensure that police are targeting the right individuals.

“It’s part of a larger review of various legal aspects, including whether we need a law that permits anyone – not just police officers – to use deadly force against someone who is not an immediate threat.”

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The Criminal Procedure Amendment Bill

In 2010, the department of justice and constitutional development published the Criminal Procedure Amendment Bill, which sought to further amend Section 49.

This resulted in the amendment of the section through the Criminal Procedure Amendment Act of 2012.

The commission’s document suggests an amendment to the law stating that if an arrestor attempts to arrest a suspect and the suspect resists or flees, the arrestor can use force, including deadly force, if necessary and proportional.

Deadly force is only allowed if the suspect poses an immediate threat of serious harm, or if they are suspected of a serious crime and no other way to make the arrest is possible.

Self-defence training for police

In addition, it cites that the commission also believes that Section 49 of the Criminal Procedure Act does not stop police from defending themselves and calls for improved police training, particularly in self-defence and de-escalation techniques to prevent worsening situations.

Recent confrontations between police and criminals in KwaZulu-Natal have reignited concerns about the police using excessive force, with accusations of unwarranted violence against suspects.

Years ago, former police commissioner Bheki Cele came under fire for apparently encouraging police officers to “shoot to kill”.

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The need for accountability

Newton highlighted the need for greater accountability in the application of this law, noting that under the current system, police face little accountability for their actions.

“The real challenge is not that police are prevented from using force – it’s that accountability mechanisms are weak.

“The Independent Police Investigative Directorate (Ipid), which is responsible for investigating police misconduct, is underfunded and overwhelmed. Between 2011 and 2021, Ipid received over 50 000 complaints against police officers, but took action in only about 5% of those cases.

“This has created a culture where many officers believe they won’t be held accountable. The internal disciplinary systems are also inadequate, allowing misconduct to persist unchecked.”

Criminologist at the University of Limpopo Prof Witness Maluleke said: “It’s crucial to understand the distinction between minimum and maximum force.

“When criminals return fire, we must ask whether this creates an increasingly dangerous rivalry between police and criminals.”

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