- Telex from General De Witt, Senior Deputy Commissioner of the South African Police, dated 19 March 1985, to all Divisional Commissioners, quoted in the Report of the Commission appointed to Inquire into the Incident which occurred on 21 March 1985 at Uitenhage RP74/85 (referred to hereafter as the Kannemeyer Commission of Inquiry).
- Mr Justice Vos in Veldhuizen NO v Minister of Police 1985(2) SA 374(C) at 376B-378C.
- See the evidence before the Kannemeyer Commission of Inquiry; South African Catholic Bishops' Conference Report on Police Conduct During Township Protests August — September 1984 (1984); Lawyers Committee for Human Rights The War Against Children: South Africa's Youngest Victims (1986) especially at 29–50; and also the following incidents reported in the ‘Human Rights Index’ of the SAJ HR and the sources cited therein: Sebokeng (1985) 1 SAJHR 84; Welkom (1985) I SAJHR 85; Langa (1985)1 SAJHR 187; Driefontein (1985)1 SAJHR 192; University of the North (1985)1 SAJHR 194; AthIone (1985)1 SAJHR 298; Mamelodi and Alexandra (1986) 2 SAJHR 115; Transkei (1986) 2 SAJHR 126; Namibia (1986) 2 SAJHR 133; Cape Town and the Crossroads squatter camp (1986) 2 SAJHR 255; Kabokweni township. White River (1986) 2 SAJHR 255; Port Elizabeth (1986) 2 SAJHR 268; Winterveld squatter camp, Bophuthatswana (1986) 2 SAJHR 265; Ciskei (1986) 2 SAJHR 266; Soweto (1986) 2 SAJHR 388.
- See the Report of the Kannemeyer Commission of Inquiry op cit note 1 at 91 -2 and the evidence of Errol Moorcraft MP.
- Loe cit.
- Op cit at 77, 87 and 89.
- Op cit at 91–113.
- The R4 fires a 5, 56mm calibre bullet manufactured by Asmen. Austria or locally manufactured by Pretoria Metal Pressings (report on the effects of an R4 for the Winterveld Commission of Inquiry (see note II) by Dr D Klatzow of Independent Forensic Consultants on 3 June 1986).
- Op cit at 2.
- Loc cit.
- The Commission of Enquiry into the Death of Persons at or near Vuka in Winterveld on or about 26 March 1986, proceedings held at Garankua on 5 May 1986 (Chairman: Mr Justice Smith) as yet unpublished, referred to hereafter as the Winterveld Commission of Inquiry 134–6.
- See note 3.
- Week Iv Mail 29 November 1985. An independent commission of inquiry under the chairmanship of Advocate A Chaskalson SC has yet to report on this incident.
- Die Trojaanse Peril: Onderhoude oor die Noodloesland in die Kaap, 1985 (1986) 70–90; (1985)1 SAJHR 298; The War Against Children op cit note 3 at 47–50.
- Dr Joe du Flou conducted a study of post mortems on victims of police action. Twelve percent of the victims were less than 15 years old. The youngest was seven (Weekly Mail 15 May 1986). A report compiled by doctors at the SACLA clinic in the Crossroads squatter camp based on records of patients treated at the clinic between February and November 1985 found that 43 per cent of the 370 patients treated for gunshot wounds were under 20 years of age (1986)2 SAJHR 255. See also The War Against Children op cit note 3 at 50–70.
- See Du Flou's report, ibid, which claims that 50 per cent of those shot by the police were shot in the back, and that another 11,6 per cent had wounds in their sides, suggesting that they had turned to run. as police opened fire; see also The War Againsi Children op cit note 3 50–70 and the report of the Kannemeyer Commission of Inquiry op cit note I at 77, 87 and 89.
- J Morrison and D Klein The Unrest in South Africa - Sources of Violence (1986). This survey analyzes the circumstances of each and every unrest-related death reported by the police or the press. It is evident from the report that police justify killing on the grounds that a person or persons indulged in stone-throwing. See also Report on Police Conduct During Township Protests August — September 1984 op cit note 3.
- (1986)4 Indicator SA 28–9. In February 1986 the Minister of Law and Order, Mr Louis Le Grange, stated that 680 persons had been killed by security forces and 2229 injured (Argus 7 February 1986). It is likely that these figures are an underestimate, as many persons injured or shot by the police receive clandestine medical attention.
- Proclamation R109 GG 10280 of 12 June 1986.
- See ‘Human Rights Index’ (1985)1 SAJHR 195–7.
- See regs 2, 3, 4, 5, 6, 7 of Proc R109 GG 10280 of 12 June 1986.
- Proclamation R224 GG 10541 of 11 December 1986. This proclamation amends the original regulation (Proc R109 op cit note 19) prohibiting the reporting of the actions of the security forces (broadly defined) throughout South Africa (including the self-governing territories) and the publication of ‘subversive statements’ (also broadly defined to incorporate any statements of legitimate opposition). The regulations now also prohibit the publication of information on the treatment of detainees. A journalist is obliged to leave a scene of police conduct if he should perchance happen to be on the spot during unrest (reg 2 of Proc R224 GG 10541 of 11 December 1986).
- Universal Declaration of Human Rights, art 3.
- International Covenant on Civil and Political Rights, art 6(1).
- It should be mentioned that art 4 of the African (Banjul) Charter on Human and Peoples' Rights oddly states in equivocal terms that ‘no one may be arbitrarily deprived of this right’ [my emphasis]. The European Convention on Human Rights and Fundamental Freedoms sets out in art 2 (1) and art 2 (2) the circumstances in which the deprivation of life shall not be regarded as a contravention of the article, and subjects even those circumstances to the requirement that the use of force shall not be more than what is absolutely necessary.
- General Assembly Official Records, 37th Session, Supplement No 40 A/37/40 Annexe 5 General Comment 6, para 3; own emphasis.
- Code of Conduct for Law Enforcement Officials adopted by the General Assembly of the United’ Nations on 17 December 1979 (Resolution 34/169).
- Article 3.
- Article 3 commentary.
- The ‘necessity principle’, the principle that deadly force should only be used where it is absolutely necessary would seem to be encompassed by the principles of minimum force and proportionality and confuses the distinction between them.
- Pedro Comargo on behalf of Maria Farne Suàrez de Guerrero v Colombia General Assembly Official Records, 37th Session, Supplement No40 A/37/40 Annexe 11 Communication No R11/45 para 13.2 and 13.3.
- Op cit paras 13.2-13.3.
- D Korff Permissible Use of Lethal Force in Law Enforcement (1984) 11. This paper was drawn up at the request of Amnesty International.
- Report on restraints on the use of force prepared by the Secretary General in accordance with Sub- Commission Resolution 1983/24 United Nations Economic and Social Council Document E/CN4/Sub 2/1984/14.
- Loc cit.
- South Africa, like the United States, is not a signatory to any of the conventions referred to in this article. It is a signatory to the Charter of the United Nations, but the Charter itself does not deal with human rights except in a very general sense. Even had South Africa been a signatory to these conventions, their status, unless they are incorporated into domestic law, is confined to an aid in reinforcing common-law principles, interpreting ambiguous statutes and, at best, testing the reasonableness of subordinate legislation. See John Dugard ‘International Human Rights Norms in Domestic Courts. Can South Africa Learn from Britain and the United States?’ in Fiat lustitia: Essays in Memory of Oliver Deneys Schreiner (1983)221. But customary international law is that core of universally approved human rights principles adopted by the overwhelming majority of nations. It prohibits, at least, genocide, slavery and racial discrimination and arbitrary death condoned by state policy (see L Henkin The Internationalization of Human Rights (1977)). The commentary to the American Law Institute's Restatement on Foreign Relations Law of the United States accepts that there will be no contravention if police kill in the line of duty where it is necessary in defence of life or to prevent serious crime (see American Law Institute: Foreign Relations Law of the United States (Tentative Draft No 3) Protection of Persons (Natural and Juridical) (1983) para 702 comment e).
- Customary international law is deemed to be and is treated as part of the common law: see Dugard ibid and Filartiga v Pena-lrala 630 F 2d 876(1980). As such, unless overruled by statute it is incorporated into our law without any act of incorporation. Furthermore, international human rights norms as found in the many conventions can be used, suggests Dugard, in interpreting ambiguous provisions in the law (see Dugard note 36 at 232–43).
- R v Britz 1949(3) SA 293(A) at 304.
- E M Burchell and P M A Hunt South African Criminal Law and Procedure 1: General Principles of Criminal Law 2 ed (1983) 322–35.
- See s49(2) of the Criminal Procedure Act 51 of 1977.
- Sections 48 and 49 of the Internal Security Act 74 of 1982.
- Act 7 of 1958.
- Section 6(1).
- Minister van Polisie v Ewels 1975(3) SA 590(A) at 597E-598A.
- Burchell and Hunt op cit note 39 at 332–3 and the cases cited therein. Cf R v Mhlongo 1960(4) SA 574(A). where Schreiner JA suggested that a third party may have to exercise greater restraint than a person who is himself physically attacked. However, this reasoning is not often applied to policemen.
- See submission by Steven C Greer. Cobden Trust Research Student in Emergency Laws and Human Rights, Queens University, Belfast, to the International Lawyers Inquiry into the use of firearms by the Security Forces in Northern Ireland (1984) 4. The same point is made by the Haldane Society of Lawyers in their submission to the same inquiry at 1–2.
- Ibid.
- Burchell and Hunt op cit note 39.
- Op cit 322, 332.
- Op cit 323; Ntanjana v Vorster and Minister of Justice 1950(4) SA 398(C) at 405; Naude and Du Plessis v Mercier 1917 AD 32 at 37.
- Op cit 325–6, 333–5. Killing in defence of property is dealt with more fully below.
- Op cit 326; S v Mkonto 1971(2) SA 319(A) at 324C. Should the accused be shot after an attack has been completed, such an act would be considered retaliatory and not in self-defence. On the other hand, Burchell and Hunt point out, citing Broome J in R v Hope 1917 NPD 145 at 146, if the attack is imminent ‘it would be absurd to wait until the blow has fallen’. Bui sec the facts in S v Mogohlwane 1982(2) SA 587(T), discussed below.
- Op cit 327–9. Burchell and Hunt suggest that there are two elements in the test which determines whether the force is necessary and reasonable. In short, the test is whether (a) a reasonable man would defend his interest (ie the threat could not be averted in any other way); and (b) the means used are reasonable.
- R v Stephens 1928 WLD 170 at 172; R v Schultz 1942 OPD 56 at 61, 65. Until Van Wyk ‘s case our law appeared to regard defence of property as an insufficient defence to a charge of homicide. F G Gardiner and C W H Lansdown South African Criminal Law and Procedure 6 ed (1957) 1550.
- 1953(2) SA 568(A) at 571.
- 1942 OPD 56.
- J van der Linden Institutes of Holland trans by Sir H Juta 3 ed (1897) 2.5.9; R v Zikalala op cit note 55; S v Motleleni 1976(1) SA 403(A) at 407.
- 1967(1) SA 488(A).
- Rumpff and Williamson JJA handed down a minority judgment holding that the limits of self-defence had been exceeded, principally on account of their finding that Van Wyk had failed to take adequate steps to warn potential intruders. The minority judgment did not, however, take issue with the majority judgment on the question of whether private defence can justify killing solely in order to protect property.
- See Veldhuizen NO v Minister of Police op cit note 2.
- Van Wyk's case note 58 at 496H; my translation.
- See E Cameron ‘Legal Chauvinism. Executive-mindedness and Justice — L C Steyn's Impact on South African Law’ (1982) 99 SALJ 72.
- Van Wyk's case note 58 at 497A.
- At 497C. Own translation.
- At 498F, 501 H.
- The Star 25 May 1984.
- WLD 24 May 1984, unreported (The Star 24 May 1984, Sunday Tribune 27 May 1984, Rand Daily Mail 24 May 1984).
- Ibid.
- Ibid.
- Op cit note 2.
- At 376 B.
- Op cit note 44 at 596E–G.
- See Burchell and Hunt op cit note 39 at 328. The radical departure from the proportionality test in Van Wyk's case seems not to have been rigidly followed. See note 77 below.
- See Van Wyk's case note 58 at 409. 508; S v Fick 1970(4) SA 510(N) at 517; Ntanjana v Vorster and Minister of Justice note 50 at 406; J C de Wet and H L Swanepoel Die Suid-Afrikaanse Strafreg 3 ed (1975) 77 and Burchell and Hunt op cit note 39 at 327.
- See Van Wyk's case note 58 at 498, 503–4. This is at odds with the general reasoning in Van Wyk's case that a person is entitled to use whatever force may be necessary to defend his goods, of whatever value, and Steyn CJ makes the concession reluctantly at 498A. See, also, S v Fick note 74 at 518.
- Supra note 52 at 590.
- See S v Fick 1970(4) SA 510(N) at 517, where the court referred to the proportionality principle in rejecting the use of deadly force in protection of property and in warning against the too ready resort to firearms.
- 1976(2) SA 450(N). It should be mentioned that the case went on appeal and the Appellate Division subsequently ruled that, on the evidence, the use of police dogs was reasonable in the circumstances (Minister van Poliste v Chetty 1977(2) SA 885(A)).
- See Holmes JA in S v Ntuli 1975(1) S A 429(A) at 437E. See also R v Zikalala note 55 at 573B and S v Mkontu note 52 at 324C.
- But in Mogohlwane note 52 Schabort J, using the analogy of spoliation, allowed the accused to return later to the scene of the crime and kill his attacker.
- Van Wyk's case note 58 at 498B. 50ID. 505A–B.
- At 505.
- Ibid. There is no reason why the restrictive guidelines approved by the courts in regard to the use of firearms to apprehend a fleeing suspect in terms of s49 of the Criminal Procedure Act 51 of 1977 should not be equally applicable to the reasonableness of the defender's conduct. See Matlou v Makhubedu 1978(1) SA 946(A) at 958B.
- Act 51 of 1977.
- Section 42 or 47.
- Mailou v Makhubedu note 82 at 957G, 961G.
- Schreiner JA in R v Labuschagne 1960(1) SA 632(A) at 639.
- See R v Britz note 38 at 303–4; J R L Milton ‘Ultima Ratio Legis: The Use of Deadly Force in Effecting Arrests’ Gedenkbundel HL Swanepoel (ed J A Coetzee) (1976) 140, 146–8; J R L Milton ‘Sentencing: Values Relating to Human Life and Limb, and the Use of Excessive Force in Effecting Arrest: Nel 1980(4) SA 28(E)’ (1980)4 SACC 307.
- Matlou v Makhubedu note 82 at 956–7.
- R v Britz note 38 at 304.
- Mailou v Makhubedu note 82 at 957; R v Britz note 38 at 303.
- J R L Milton ‘Ultima Ratio Legis’ op cit note 87.
- Section 37 of Act 51 of 1977, whose progenitor, according to Milton, was s 1 of Ordinance 2 of 1837 (Cape).
- J R L Milton ‘Ultima Ratio Legis’ op cit note 87 at 149.
- Op cit 146–7.
- Proceedings of the American Law Institute (1931) 9, 179, 186, cited in Milton op cit 146.
- Wiesner v Mololo 1983(3) SA 151(A) at 151.
- Macu v Du Toil 1983(4) SA 629(A) at 647.
- S v Barnard 1986(3) SA 1(A).
- R v Labuschagne 1960(1) SA 632(A).
- Matlou v Makhubedu note 82 at 958B.
- R v Britz note 38.
- Matlou v Makhubedu note 82 at 962.
- S v Swanepoel 1985 (1) SA 576(A).
- See S v Barnard note 98.
- S v Swanepoel note 103.
- S v Nel 1980(4) SA 28(E).
- Note 97.
- At 651H-652C.
- Per Rumpff CJ in Matlou v Makhubedu note 82 at 957A.
- R v Britz op cit note 38 at 304.
- R v Labuschagne note 86 at 640C.
- a Act 74 of 1982.
- b Act 17 of 1956.
- Section 48(2) of Act 74 of 1982.
- Section 49(1)(o).
- Section 7 of the Riotous Assemblies Act 17 of 1956.
- 1973(1) SA 248(C).
- At 261B.
- The Internal Security Act requires one warning, whereas s 7 of the Riotous Assemblies Act, prior to its amendment in 1974 by Act 30 of 1974, required three warnings.
- S v Turrell note 115 at 256G.
- The current notice is GN 582 GG 10157 of 27 March 1986, promulgated in terms of s46(3) of the Internal Security Act 74 of 1982.
- Section 46(3).
- See the full report of the Kannemeyer Commission of Inquiry op cit note 1 at 158–62. See, also, United Democratic Front v Acting Magistrate WLD 16 December 1984, unreported.
- See the Report of the Commission of Inquiry into Sharpeville, 21 March 1960 in terms of GN 169 CCE6404 of 1 April 1960 (chairman: J Wessels) hereafter referred to as the Sharpeville Commission of Inquiry.
- Kannemeyer Commission of Inquiry op cit note 1 158–62.
- Sharpeville Commission of Inquiry op cit note 122 194.
- Minister of Justice in House of Assembly Debates 22 March 1960 col 4837.
- South African Institute of Race Relations A Précis of the Reports of the Commissions Appointed to Enquire into the Events Occurring on March 21 1960 at Sharpeville and Langa (1961) 15, 17.
- Evidence of medical practitioners at the inquiry in Days of Crisis in South Africa compiled by M Horrell, South African Institute of Race Relations (1960) 11.
- Op cit note 126 at 17.
- Sharpeville Commission of Inquiry op cit note 122 209–11.
- Op cit 212.
- The Kannemeyer Commission of Inquiry op cit note 1 158–62.
- Op cit 56 and evidence of Lieutenant Fouché.
- Op cit 91–113.
- Op cit 164–5.
- Op cit 89.
- Op cit 108–12.
- Op cit 95.
- Op cit 155.
- Press release by South African Police dated 14 June 1985.
- See note 13.
- See note 11.
South African Journal on Human Rights
Volume 3, 1987 - Issue 1