The use of Police force in crowd management

Abstract

South Africa has a violent and oppressive past. They are various historical incidents1 of extreme cruelty perpetrated by the previous apartheid regime. Much of the modern South African democratic state was forged by protests. During the 1970s and 80s, the legislator by passing unjust laws was used to assist the government to maintain the oppression of the people of South Africa. From the Soweto uprising in the 1970s to the current service delivery protests of the 21st century, gatherings have always had the potential for deadly violence. The motivation for this research started with the emotions evoked by the iconic picture of the body of Hector Pietersen2 being carried after being shot by the police. Strikingly the images of the killing by the police of Andries Tatane conjured further questions concerning the use of deadly force within crowd management situations. The research undertook an analysis of the use of force by the police during crowd management situations. A brief analysis of South African law relating to the use of force by the police prior to 1996 is provided. There are legislative prescripts for the use of force during the maintenance of public order. It must be noted that the legislation falls short on providing clear, concise authority for the use of deadly force. Normally, the use of force by the police and civilians for the purpose of arrest is regulated by the Criminal Procedure Act3 , whereas the Regulation of Gatherings Act4 providing the authority for the use of force by the police in crowd management situations to preserve public order. At first glance, section 49 of the CPA seems to validate arguments that it violates some constitutionally protected rights, among which are the right to dignity, life, to freedom and security of the person, against cruel, inhuman or degrading treatment or punishment and to a fair trial, which includes the right to be presumed innocent. Section 49 however, withstood Constitutional muster as set out in Re: S v Walters & another. As the right to life is a non derogable right.5 The limitation of this right may lead to constitutional scrutiny. The emphasis will thus be on ensuring that the balance with regards to proportionality in the use of deadly force is maintained. During the research it became apparent that the police, especially during crowd management situations, served political interests.6 This had the unintended consequence that the laws were applied to suit the political narrative and not the rule of law. The use of force in the policing arena is controversial. It is very clear that any misuse of force in crowd management situations will evoke the historical wounds associated with apartheid. However, within crowd management, the use of force and the authority to use deadly force is absolutely necessary. The Marikana massacre was used to highlight the mistakes that police have made during inappropriate use of force and its catastrophic consequences.7 It was observed that the legislative framework concerning the use of force, whether under section 49 of the CPA or section 9 of the RGA, is incoherent and too complex. The research argues for simplicity and accuracy within policy and applicable legislative alignment. The linkages from the applicable legislation to the institutional policies should never be outdated or incorrectly formulated. The violent rhetoric from politicians such as ex-president Jacob Zuma, 8 Minister Fikile Mbalula 9 and Bheki Cele10 fuels the argument that the police are susceptible to misdirected notions and may cause the police act unlawfully. The Constitution requires the police to “enforce the law”11 and as such there is an obligation on the police to do this within the constitutional parameters. The correct use of deadly force will only be achieved if the SAPS adequately resource, train and regularly refresh their members regarding the use of force when policing protests.Thesis (LLM -- Faculty of Law, School of Criminal and Procedural Law, 202

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This paper was published in Nelson Mandela University.

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