19. The Use of Firearms

19.1 Concurrent with the principle of minimum force, the following question arises: When, under what conditions and in which manner may a firearm be fired.

19.2 Every situation has unique circumstances and the circumstances play a major part when determining whether the use of a firearm constituted minimum force or not. Therefore it cannot be stated beforehand whether a firearm may be used in a specific situation or not. At the most, basic principles can be laid down for deciding whether to shoot, or not.

19.3 The golden rule is still minimum force. In every situation there must be determined whether there is no alternative than to open fire.

19.4 It is important that there must be a balance between the offence committed and the amount of force used.

19.5 Factors that must be taken into account:

19.5.1 When a person resists arrest, he/she should be overpowered physically instead of being shot.

19.5.2 A person who resists arrest should be let go without being fired upon if there is a big chance he/she will be traced later.

19.5.3 The safety or desirability of firing warning shots. (However, the firing warning shots in urban areas are not recommended).

19.5.4 In most circumstances it is safer and more desirable to wound a person rather than giving a fatal shot.

19.5.5 The seriousness of the legal principle that must be served in relation to the life and physical integrity of the person who must be arrested.

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19.6 The courts have decided it is legal to shoot a person in the following circumstances, subject to the principle of minimum force:

19.6.1 To protect lives:

19.6.1.1 The attack or threat must be aimed at a person (no matter who it is), in which case the use of a firearm is justified if there is no other reasonable way in which he/she can ward off the threat or the attack.

19.6.1.2 You may use a firearm only if the attack is an immediate threat or started already, i.e. the attack must be more than just a possibility.

19.6.1.3 You may not use more force than is necessary to halt the attack. If more force is used, the principle of minimum force is violated and the person defending becomes the attacker.

19.6.1.4 The force used to ward off the attack may be directed at the attacker (assailant) only.

19.6.1.5 On 21 May 2002 the Constitutional Court delivered judgment in the case of S v Walter (CCT 28/01). The judgment concerned the constitutionality of section 49 (2) of the Criminal Procedure Act, 1977 (Act No 51 of 1977). In its judgment the Constitutional Court declared section 49(2) of the Criminal Procedure Act, 1977 unconstitutional. The court also ruled that this decision does not apply to actions carried out before 21 May 2002.

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Section 49 determined that when an offender or suspect of a schedule 1 offence could be killed with impunity to prevent his/her escape. However, the law as it stands determines the following:

a) Shooting a suspect to make an arrest is permissible in limited cases. Besides the cases indicated in paragraph 19.6.1.4. and 19.6.1.5. above, the person who is authorized to make the arrest (in terms of sections 40 and 42 of the Criminal Procedure Act) may shoot a suspect under the following circumstances:

if the suspect poses a threat to the person making the arrest or other persons; or

if the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there is no other reasonable means of carrying out the arrest, whether at that time or later.

b) When an arrest is called for, force may be used only if it is necessary to carry out the arrest. If the use of force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used. In deciding what degree of force is both reasonable and necessary, all circumstances must be taken into account, including the threat of violence the suspect poses to the person making the arrest or other persons, and the nature and circumstances of the offence the suspect is suspected of having committed; the degree of force must be proportional in all these circumstances. Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances. Under no circumstances may a person who tries to effect an arrest shoot to kill the suspect in order to halt the escape (that is, the person who tries to effect an arrest may shoot the suspect in the legs, for instance). These limitations in no way detract from the rights a person who attempts to carry out an arrest to kill a suspect in self-defence or in defence of any other person.