The Lonmin shooting and the use of deadly force in South African law: a dangerous amendment to the Criminal Procedure Act on the cards
On Thursday 16 August 2012, 36 miners were killed by South African Police Services officials at Marikana mine in Mpumalanga. The violence arose out of a protracted labour dispute involving rival labour unions and Lonmin management. The final death toll of the week of 13 August 2012 is close to 50.
Some have described the attack by the SAPS on the striking miners on the 16th as a "massacre" - indistinguishable from the events at Sharpville in March 1960. Others insist that the SAPS acted in self-defense, thereby rendering the use of force, including deadly force, justified. The available camera footage of the shooting, from whichever angle one views it, though undeniably distressing, is not particularly helpful in determining the truth of the events. Perhaps the most balanced view of the events we can hope for will be revealed by an investigation into Thursday's events by the Independent Police Investigative Directorate and the findings of a Commission of Inquiry.
Those who believe that the shooting of striking workers by the SAPS was based on little more than revenge are, understandably, outraged. And indeed, the media flurry in the aftermath of these events and the degree of societal interest signal that South African citizens care deeply about the way that the state machinery reacts to discontent within civil society. This is a very good thing: we know and remember all too well the devastating effects of state-sanctioned police brutality. Perhaps this was on Justice Kriegler's mind when he wrote the following excerpt in the Walters case (May 2002):
"We have a history of violence - personal, political and institutional. Our country is still disfigured by violence, not only in the dramatic form of murder, rape and robbery but more mundanely in our homes and on our roads. This is inconsistent with the ideals proclaimed by the Constitution. The state is called upon to set an example of measured, rational, reasonable and proportionate responses to antisocial conduct and should never be seen to condone, let alone to promote, excessive violence against transgressors. Its role in our violent society is rather to demonstrate that we are serious about the human rights the Constitution guarantees for everyone, even suspected criminals."
The Constitutional Court was considering section 49 of the Criminal Procedure Act, which regulates the use of force by the police. The Court declared parts of that provision to be unconstitutional on the basis that it permitted the use of deadly force "where it may not be necessary or reasonably proportionate". The Supreme Court of Appeal, in the matter of Govender v Minister of Safety and Security (1 June 2001) had previously decided that force could only be used when an officer has reasonable grounds to believe that the suspect poses an immediate threat of serious bodily harm to the officer or to another person, or that the suspect has committed a crime involving the infliction of serious bodily harm.