Use of force by South African security services : a comparative critique

Abstract

One of the most serious challenges facing South Africa currently is the high rate of violent crime as well as violent protests. The police are tasked and empowered by the Constitution as well as statutes to prevent, combat, investigate, cope with and control such criminal behaviour. However, as this research shows, some South African security forces violate the law by using excessive force on citizens they are bound to protect, and consequently, bringing themselves, the law, and the state into disrepute. Chapter 5 of the Criminal Procedure Act 51 of 1977 empowers an arrestor to use force in order to effect arrest in terms of section 49. There are police officials who abuse these powers, but it is argued that the functions of the police and other departments in the administration of justice would be crippled if no physical force could lawfully be used by the arresting officer in securing an arrest. This research proffers an analysis on the concept of the use of force in South Africa, as well as in international and foreign law, in order to guide arrestors as to when and how to apply the necessary and proportionate force in effecting an arrest. The constitutional validity of section 49 of the Criminal Procedure Act is scrutinised by means of a two-stage approach, and its limitation on the protection of life and on the administration of justice tested. Various case law dealing with the use of force are critically analysed. The use of force by private policing (private security) is furthermore examined as this flourishing industry currently outnumbers the public police force. Lastly, police brutality in South Africa and the United States is investigated, and examples of brutal policing incidents are discussed. After researching the adequacy and implications of the legal framework dealing with the use of deadly force by security officers and private individuals in effecting an arrest as well as police brutality in South Africa and comparing how excessive force by law enforcement officials is treated in jurisdictions such as the United States, the research offers several substantive recommendations in an attempt to resolve the research problem.