Chapter 2 of the 1996 Constitution is the Bill of Rights, which is stated to be "a cornerstone of democracy in South Africa". The Bill of Rights "enshrines the rights of all people" in South Africa "and affirms the democratic values of human dignity, equality and freedom".S. 7(1), 1996 Constitution.The state "must respect, protect, promote and fulfil" the rights set out in the Constitution.S. 7(2), 1996 Constitution.Among the rights that must be respected and protected are the rights to life,S. 7(2), 1996 Constitution.to be free from all forms of violence from public or private sources;S. 12(1)(c), 1996 Constitution.not to be tortured in any way;S. 12(1)(d), 1996 Constitution.and not to be treated or punished in a cruel, inhuman or degrading way.S. 12(1)(e), 1996 Constitution.
Under Section 17, "Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions."
The South African National Defence Force has as its primary object
to defend and protect the Republic, its territorial integrity and its people in accordance with the Constitution and the principles of international law regulating the use of force.S. 200(2), 1996 Constitution.
The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.S. 205(3), 1996 Constitution.Further according to the Constitution, national legislation
must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively.S. 205(2), 1996 Constitution.
|1966 Covenant on Civil and Political Rights (ICCPR)
|ICCPR Optional Protocol 1
|1984 Convention against Torture (CAT)
|Competence of CAT Committee to receive individual complaints
|CAT Optional Protocol 1
|1998 Rome Statute of the International Criminal Court
On 7 March 2017, the Government of South Africa notified the UN Secretary-General of the revocation of its notification of withdrawal from the Rome Statute deposited with the Secretary-General on 19 October 2016.
|1981 African Charter on Human and Peoples' Rights
|1998 Protocol to the African Charter on the African Court
|Article 34(6) declaration regarding individual petitions
|Malabo Protocol on the African Court of Justice and Human Rights
Police Use of Force
According to the 1995 Police Services Act, where force has to be used, this must be only "the minimum force which is reasonable in the circumstances".S. 13(3)(b), Police Services Act, No. 68 of 1995 (as amended).The most important national legal provision governing use of force during arrest (including, but not limited to, the police) is Section 49(2) of the 1977 Criminal Procedure Act (as amended). This states as follows:
If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, 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, the arrestor may use deadly force only if:
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
(b) 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.
This provision does not comply with international law governing use of firearms for law enforcement, which may only occur where either there is an imminent threat of death or serious injury or a proximate and grave threat to life.
Section 9(2) of the 1993 Gatherings Act gives the police broad powers to order the dispersal of an assembly and to use force to achieve that objective:
(b) If within the time so specified the persons gathered have not so dispersed or have made no preparations to disperse, such a member of the Police may order the members of the Police under his command to disperse the persons concerned and may for that purpose order the use of force, excluding the use of weapons likely to cause serious bodily injury or death.
(c) The degree of force which may be so used shall not be greater than is necessary for dispersing the persons gathered and shall be proportionate to the circumstances of the case and the object to be attained.
(d) If any person who participates in a gathering or demonstration or any person who hinders, obstructs or interferes with persons who participate in a gathering or demonstration-
(i) kills or seriously injures, or attempts to kill or seriously injure, or shows a manifest intention of killing or seriously injuring, any person; or
(ii) destroys or does serious damage to, or attempts to destroy or to do serious damage to, or shows a manifest intention of destroying or doing serious damage to, any immovable property or movable property considered to be valuable, such a member of the Police of or above the rank of warrant officer may order the members of the Police under his command to take the necessary steps to prevent the action contemplated in subparagraphs (i) and (ii) and may for that purpose, if he finds other methods to be ineffective or inappropriate, order the use of force, including the use of firearms and other weapons.
(e) The degree of force which may be so used shall not be greater than is necessary for the prevention of the actions contemplated in subparagraphs (d) (i) and (ii), and the force shall be moderated and be proportionate to the circumstances of the case and the object to be attained.
In 2020 the Cabinet approved an Amendment Bill that would make certain reforms to both the Police Service Act and the Regulation of Gatherings Act. That Bill was circulated for preliminary public comment and is expected to be presented back to Parliament during 2021.
Also in 2021, the Marikana Panel Report noted that it had
received a presentation on the ‘Model Bill for Use of Force by Police and other Law Enforcement Agencies in South Africa’, prepared by the Institute for International and Comparative Law in Africa, and headed by Professor Christof Heyns in collaboration with the African Policing Civilian Oversight Forum. The Model Bill, building on international standards and best practice, contains various provisions of immediate relevance. The Model Bill addresses the use of force in general policing as well as the policing of gatherings. The Bill not only includes primary rules on the use of force (with lethal or less-lethal-weapons), but also on medical assistance, oversight, accountability, and remedies for unlawful use of force. If adopted, such a comprehensive piece of legislation would potentially solve a lot of the controversies concerning the interpretation and application of the legislation that deals with the competencies of the police to use force.
The Panel recommended that:
Parliament should consider the ‘Model Bill for Use of Force by Police and other Law Enforcement Agencies in South Africa’ as a suitable starting point for introducing an integrated law on the use of force by police and others in South Africa.
Use of Force in Custodial Settings
According to the 1998 Correctional Services Act (as amended), the right of every prisoner "to personal integrity and privacy is subject to the limitations reasonably necessary to ensure the security of the community, the safety of correctional officials and the safe custody of all prisoners".S. 26(1), 1998 Correctional Services Act.A correctional official may apply mechanical means of restraint and use reasonable force to achieve these objectives.S. 26(2)(d) and (e), 1998 Correctional Services Act. See also, with respect to mechanical restraints, s. 31.Every correctional official is authorised to use all lawful means to detain in safe custody all prisoners and may use force to achieve this objective where no other means are available.S. 32(1)(a), 1998 Correctional Services Act.
A minimum degree of force must be used and the force must be proportionate to the objective.S. 32(1)(b), 1998 Correctional Services Act.Non-lethal incapacitating devices may only be used by a correctional official specifically trained in their use.S. 33(1) and (2), 1998 Correctional Services Act.Similarly, a firearm may only be used by a correctional official specifically trained in its use.S. 34(2), 1998 Correctional Services Act. It is further stipulated in Section 34 of the 1998 Act (as amended) that:S. 34(3) and (4), 1998 Correctional Services Act.
(3) Firearms may only be used as a last resort and then only—
(a) in self-defence;
(b) in defence of any other person;
(c) to prevent an inmate from escaping; or
(d) when the security of the correctional centre or the safety of inmates or other persons is threatened.
(4) Before a firearm is fired, the following procedure must be adhered to, if circumstances permit:
(a) A verbal warning must be given;
(b) if the warning is of no effect, a warning shot must be fired;
(c) if the warnings are of no effect, the line of fire should be directed in such a manner that the probable result will not be a fatal injury.
The possibility to fire on any escaping detainee or when the safety of any person is merely threatened does not comply with international law.
The centrepiece of the accountability regime for the police in South Africa is the Independent Police Investigative Directorate (IPID). IPID's mandate comes from the Independent Police Investigative Directorate Act (No. 1 of 2011), the statutory instrument that established the Directorate. IPID is required to investigate, among others, any deaths in police custody; deaths as a result of police actions; any complaint relating to the discharge of an official firearm by any police officer; alleged rape by a police officer, whether the police officer is on or off duty; and alleged rape of any person while that person is in police custody.
In 2016, in its Concluding Observations on South Africa's initial report on its implementation of the 1966 International Covenant on Civil and Political Rights, the United Nations Human Rights Committee called on South Africa to:Human Rights Committee, Concluding observations on the initial report of South Africa, UN doc. CCPR/C/ZAF/CO/1, 27 April 2016, §27(b).
Ensure that prompt, thorough, effective, independent and impartial investigations are launched into all incidents involving the use of firearms and all allegations of excessive use of force by law enforcement officers, as well as the potential liability of the Lonmin Mining Company for the Marikana incident, prosecute and punish perpetrators of illegal killings and provide effective remedies to victims....
The Committee also called on South Africa to "ensure that all deaths occurring in detention and all cases of violence committed in State or contract-managed prisons are investigated
properly by an independent mechanism".Human Rights Committee, Concluding observations on the initial report of South Africa, UN doc. CCPR/C/ZAF/CO/1, 27 April 2016, §29.
As at July 2018, amendment of the IPID Act was still being deliberated in the South African Parliament. The Constitutional Court, which had declared certain sections of the IPID Act unconstitutional, gave Parliament a deadline for September 2018 to rectify the legislation.
The Judicial Inspectorate for Correctional Services is the body tasked with overseeing South Africa’s custodial facilities and inspecting and reporting on how inmates are treated.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2019 Concluding Observations on South Africa, the Committee against Torture called on the authorities to:
Revise laws and policies regarding public order policing and the use of force, including lethal force, by law enforcement officials in order to ensure that all policing laws, policies and guidelines are consistent with the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and inform the Committee, in the State party’s next periodic report, of the implementation of those laws, policies and guidelines.
In 2016, in its Concluding Observations on South Africa's initial report on its implementation of the 1966 International Covenant on Civil and Political Rights, the United Nations Human Rights Committee expressed its concernHuman Rights Committee, Concluding observations on the initial report of South Africa, UN doc. CCPR/C/ZAF/CO/1, 27 April 2016, §26.
about numerous reports of excessive and disproportionate use of force by law enforcement officials in the context of public protests that has resulted in loss of lives. The Committee is also concerned about the slow pace of the investigation into the Marikana incident, including with respect to the criminal responsibility of members of the South African Police Service and the potential liability of the Lonmin Mining Company....
The Committee called on South Africa to:Human Rights Committee, Concluding observations on the initial report of South Africa, UN doc. CCPR/C/ZAF/CO/1, 27 April 2016, §27(a).
Expedite the work of the Task Team and the Panel of International Experts established by the Ministry of Police in implementing the recommendations of the Marikana Commission of Inquiry, revise laws and policies regarding public order policing and the use of force, including lethal force by law enforcement officials, to ensure that all policing laws, policies and guidelines are consistent with article 6 of the Covenant and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials....
The Committee further expressed concern about the number of reported cases of violence, including sexual violence, excessive use of force, torture and other forms of ill-treatment against detainees, as well as deaths resulting from actions of police and prison officials.Human Rights Committee, Concluding observations on the initial report of South Africa, UN doc. CCPR/C/ZAF/CO/1, 27 April 2016, §28.
Khosa v. Minister of Defence (2020)
This case, before the High Court in Pretoria, concerned the assault on Mr Collins Khosa on 10 April 2020 and other applicants by members of the South African National Defence Force (SANDF) during enforcement of the COVID-19 lockdown regulations. Mr Khosa died of his injuries, which included blunt force trauma to the head.
Judge Fabricius stated in his judgment that:
The public is … entitled to be treated with dignity and respect whether rich or poor. Section 7 of the Bill of Rights [in the Constitution] makes this abundantly clear and there is no doubt about that. They are also entitled to human dignity and this right needs to be respected and protected as again made abundantly clear by section 10 of the Bill of Rights. Similarly the public is entitled to the right to life by way of section 11, and everyone has the right to freedom and security of the person according to the provisions of section 12 which includes the right to be free from all forms of violence from either public or private sources, not to be tortured in any way, and not to be treated or punished in a cruel, inhuman or degrading way. Section 12(2) provides that everyone has the right to bodily and psychological integrity which includes the right to security in and control over their body.
It was ordered by Judge Fabricius that all persons present within the territory of South Africa are entitled to (among others) the following rights, which are non-derogable even during states of emergency:
- the right to human dignity
- the right to life
- the right not to be tortured in any way
- the right not to be treated or punished in a cruel, inhuman or degrading way.
The judgment requires the publication by the law enforcement agencies of a code of conduct governing the use of force in enforcing the lockdown.
Govender v. Minister of Safety and Security (2001)
One of the leading cases on police use of force is Govender v. Minister of Safety and Security, although the Supreme Court judgment of 2001 related to an earlier version of the national legislation. The case concerned the shooting in June 1995 of an unarmed 17 year-old boy in Durban who was suspected of stealing a motor car. The boy was rendered a paraplegic. The Supreme Court stated in its judgment that:
in applying the constitutional standard of reasonableness the existing (and narrow) test of proportionality between the seriousness of the relevant offence and the force used should be expanded to include a consideration of proportionality between the nature and degree of the force used and the threat posed by the fugitive to the safety and security of the police officers, other individuals and society as a whole. In so doing, full weight should be given to the fact that the fugitive is obviously young, or unarmed, or of slight build, etc, and where applicable, he could have been brought to justice in some other way.
The Marikana Shootings
One of the most notorious incidents of recent years was the shooting to death of 34 striking miners by officers belonging to the South African Police Service (SAPS) and the injury of more than 70 others at Marikana during a single day in August 2012. Some of the casualties resulted from the use of assault rifles in fully automatic mode. A Commission of Inquiry was established to investigate the use of force by SAPS officers.Marikana Commission of Inquiry: Report on Matters of Public, National and International Concern Arising Out of the Tragic Incidents at the Lonmin Mine in Marikana, in the North West Province, 31 March 2015.The Commission's report in 2015 recognisedMarikana Commission of Inquiry Report, pp. 548-49.
the dangers inherent in the situation when Public Order Policing members are faced with a crowd armed with sharp weapons and where non-lethal force is ineffective. However the use of R5 or any automatic rifle is clearly untenable, not only because of the Constitutional imperatives, but also because the effects seen at Marikana are just too disturbing and devastating for South Africa even to contemplate any recurrence.