Despite the national police commissioner and minister of police seeming to agree with Meshoe’s statements, experts told us he was “plainly wrong”.
Self-defence is governed both by South African common law and the Criminal Procedure Act, which regulates when police officers can use “deadly force”.
International oversight bodies recommend stricter measures be put in place in South Africa to limit police use of force and suggest current legislation is not in line with international law.
South African police "are not even allowed to shoot when they are shot at”.
This claim was made by Kenneth Meshoe, Christian pastor, member of parliament and leader of the African Christian Democratic Party (ACDP), in a portfolio committee meeting in July 2021.
Meshoe said he was concerned about the safety of the police as some were seen withdrawing in the face of “charging mobs” during unrest in South Africa in July. The protests were sparked by the arrest of former president Jacob Zuma.
In response, national police commissioner Gen Khehla Sitole said that police are “handicapped” by “current laws and human rights prescriptions”.
National police minister Bheki Cele also responded, saying that the “police are highly regulated, highly restricted … at the expense of their own lives”.
But are Meshoe’s claims accurate? Are the police not allowed to return fire when they are shot at?
Meshoe is ‘plainly wrong’
Africa Check contacted the ACDP about Meshoe’s claim. We will update this report should we receive a response.
David Bruce, an independent researcher specialising in crime and criminal justice, told Africa Check: “The short answer is that Rev Meshoe is plainly wrong.”
All people in South Africa have a right to use force in self-defence, Bruce said. He added that “there is no basis for claiming that the police are denied this right”. While there are restrictions on the use of force in self-defence, these would not prevent police from firing back when fired upon.
Bruce also said: “If the police officer can defend him or herself successfully without using lethal force, the law would expect them to do so.”
However, this still allows them to use lethal force to defend themselves if they face the threat of being shot.
Dr Thomas Probert agreed. He is head of research for the Freedom from Violence Initiative at the University of Pretoria's Institute for International and Comparative Law in Africa.
“It is categorically not the case that South African legislation prevents officers from using firearms to protect themselves, or others, from a threat to their lives, such as being shot at,” Probert said.
‘Deadly force’ permitted in some circumstances
A person acting in self-defence “may not use more force than is necessary for purposes of defending themselves against an attack”, Bruce said.
He explained that self-defence in South Africa is governed by common law, a system in which judges must consider previous court judgements and the outcome of similar cases when judging a case.
This could be overridden by what is called statute law, a written law which has been passed into the official legislation of a country. But Bruce said there is no statutory provision which overrides a police officer’s common-law right to self-defence.
In fact, he said “the principle is given statutory expression” in the country’s Criminal Procedure Act. This act governs the issuing of warrants and summons, the details of court proceedings, and other matters related to criminal proceedings, including the process that should be followed when making arrests.
Section 49 of the act limits when a police officer may use force to arrest a person who is suspected of committing a crime. The police’s national head of communications, Gen Mathapelo Peters, confirmed to Africa Check that this section “guides the police”.
The act allows the officer to arrest a suspect using “reasonably necessary force”, but only allows the use of “deadly force”, which includes shooting at the suspect with a firearm and anything else likely to cause serious harm or death, in two situations:
If the suspect commits or threatens “serious violence” towards anyone during the arrest.
If the crime suspected to have been committed involves the use or threat of serious harm and there is no other way to make an arrest.
This doesn’t allow police to fire at anyone committing a crime, although police oversight groups have argued that regulations should be altered to further discourage use of force.
In a recent report on police use of force, the African Policing Civilian Oversight Forum, a non-profit organisation dedicated to police oversight in several African countries, made a number of recommendations for stricter measures to prevent police use of force. These included the introduction of “measures and training to guarantee that lethal force is not used in cases of looting, or to protect property generally, unless looters pose a threat to life”.
South Africa’s highest court, the constitutional court, has found in the past that the use of firearms is not justified in defence of property. Bruce told Africa Check: “The fact that police only used rubber bullets against looters during the unrest indicates that they are complying with this provision. But this does not mean that they cannot use firearms or other lethal force to protect their own lives or those of others.”
Experts think regulations may be too permissive
Neither national police commissioner Sitole nor police minister Cele corrected Meshoe when responding to his claims. Sitole seemed to reinforce Meshoe’s claim by saying police are “handicapped” by “current laws and human rights prescriptions”.
Bruce told Africa Check that “these statements are ultimately misleading and misguided because they equate the problems that the police faced in responding to the unrest with the unfounded notion that the police are prevented from defending themselves.”
Probert told us that he and other experts were critical of South Africa’s criminal procedure act, arguing that “from the perspective of international standards, the act is in fact too permissive with respect to the circumstances in which it permits officers to use force”, specifically in that it does not require that a threat be “imminent” in order for police to respond with lethal force.
The international database policinglaw.info, described as “an academic review of national regimes governing use of force by law enforcement officials”, has been compiled by Probert and others. It notes in a summary of South African legislation that “South Africa needs to revise its legislation to restrict police use of firearms in line with international law”.
Conclusion: Police can shoot back when fired on
African Christian Democratic Party member of parliament Kenneth Meshoe claimed that South African police “are not even allowed to shoot when they are shot at”.
This is incorrect. Police are legally allowed to use lethal force when they or others face a threat of death or serious injury and they are allowed to defend themselves just like any other person. The country’s criminal procedure act formally recognises this.
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