CPR3701 PREVIOUS QUESTION PAPERS
COMPILATIN .
October / November 2019
Section B
Question 2
1 Whilst sleeping in his house with his family, Jake is awoken by noise in the kitchen.
Fearing for his and his family’s lives, he retrieves his firearm from its safe, and
proceeds toward the directi...
,October / November 2019
Section B
Question 2
1 Whilst sleeping in his house with his family, Jake is awoken by noise in the kitchen.
Fearing for his and his family’s lives, he retrieves his firearm from its safe, and
proceeds toward the direction of the noise. Upon arrival in the kitchen, he accosts
Paul and Zakes, who are in possession of a television set, which he recognizes as
his own. Upon seeing Jake, they (Paul and Zakes) decide to run away, dropping the
television set to the floor. As they run out of the house Jake, shouts at them to stop,
but they continue to flee out of the house. Jake chases after them. Realizing that he
cannot possibly catch them, he fires several shots in the direction of Paul and Zakes,
in order to stop their flight. In the process, two of the shots fatally strike Zakes, killing
him. Paul manages to escape.
(a) Discuss, in the context of the above-mentioned facts, the factors which
were set out by the Constitutional Court in Ex Parte: Minister of Safety
and Security: In re: S v Walters 2002 (4) SA 613 (CC) at 643, regarding
the use of force in order to effect arrest. (10)
1. ARREST
a) Use of force in effecting an arrest
As a general rule, force may not be used in order to effect an arrest. If the person
that is to be arrested submits himself or herself to the arrest, force may not be used.
Therefore, the need to use force can only arise in those circumstances in which the
use of force is necessary to overcome resistance to the arrest or to prevent the
suspect from fleeing. The use of force in order to punish the person who is to be
arrested will always be unlawful.1
Section 12(1)(c)-(e) of the Constitution2 avers that every person shall have the right
to freedom and security of the person, which inter alia 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, inhumane or degrading way.
Hence use of force in effecting an arrest must accordingly be viewed against this
background.
Until recently, the use of force in effecting an arrest was governed by section 49(2) of
the CPA. This section was stating that the killing of a person who is to be arrested for
an offence found in Schedule 1 offences but who could not be arrested or prevented
from fleeing by other means than killing him, such killing would be regarded as
justifiable homicide.
1 Criminal Procedure Handbook 153.
2 Constitution of the Republic of South Africa 1996.
, However, in Ex Parte: Minister of Safety and Security: In Re S v Walters3 the
Constitutional Court declared the previous s 49(2) to be unconstitutional and
repealed and replaced it by the new section 49. This case lays down the factors to
be taken into account in using force to effect an arrest.
1. The purpose of arrest is to bring before court for trial persons suspected of
having committed offences.
2. Arrest is not the only means of achieving this purpose, nor always the
best.
3. Arrest may never be used to punish a suspect.
4. Where arrest is called for, force may be used only where it is necessary in
order to carry out the arrest.
5. Where force is necessary, only the least degree of force reasonably
necessary to carry out the arrest may be used.
6. In deciding what degree of force is both reasonable and necessary, all the
circumstances must be taken into account, including the threat of violence
the suspect poses to the arrester or others, and the nature and
circumstances of the offence the suspect is suspected of having
committed; the force being proportional in all these circumstances.
7. Shooting a suspect solely in order to carry out an arrest is permitted in
very limited circumstances only.
8. Ordinarily such shooting is not permitted unless the suspect poses a threat
of violence to the arrester or others or 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
carrying out the arrest, whether at that time or later.
9. These limitations in no way detract from the rights of an arrester
attempting to carry out an arrest to kill a suspect in self-defence or in
defence of any other person.
(b) Do the actions of Jake in firing shots at Paul and Zakes conform to the
Constitutional Court injunction? Briefly state the reasons why you agree
or disagree with Jake’s actions. (5)
Facts of the scenario
Jake’s actions in firing shots at Y and Z do not conform to the Constitutional Court
injunction because there is no proportionality because the use of force used and the
crime committed. Firing shots directly to the robbers was not the least degree of
3
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller LOVELY01. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $3.00. You're not tied to anything after your purchase.
