CPR3701 PREVIOUS QUESTION PAPERS
COMPILATIN 2019 -2017.
,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
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