An exploration of the use of excessive force by members of the South African Police Service

Abstract

The manner in which the police apply force is regulated by section 49 of the Criminal Procedure Act (CPA), 51 of 1977 (South Africa, 1997). According to Van der Walt (2010: 2), the introduction of the constitutional rules and regulations brought an improvement to the regulatory framework against police brutality. The section, which deals with the application of force by the police, was thoroughly analysed by the highest courts of the land in 2001 and in 2002 (Van der Walt, 2010: 2). The two court judgements which indicated that the section be declared unconstitutional, are the following: the Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA) (henceforth, Govender), in which the Supreme Court of Appeal (SCA) ruled section 49(1) was in conflict with the constitution but gave a recommendation that the section to be clearly explained in such a way that it is satisfactory. In the Walters case, Section 49 of the CPA was again regarded as unconstitutional in 2002 (Van der Walt, 2010:2). This thesis conducted an in-depth analysis of relevant literature to provide a background for the discussion on the use of excessive force by members of the South African Police Service (SAPS). The study also endeavoured to establish a frame of reference for considering different legal models for dealing with the use of force and identify policies and best practices from the international policing agencies to identify different approaches. It was envisaged that the knowledge generated in this study will enhance the existing knowledge on the use of force by members of SAPS, and will serve to educate the police, criminal justice institutions and the community about the nature and extent of the problems that policing agencies experience when executing their duties.