How much might is right? Application of Section 49 of the Criminal Procedure Act

This research paper examines the legal and political delays in implementing a 1998 amendment to Section 49 of the Criminal Procedure Act in South Africa, which sought to restrict the use of lethal force during arrests. The author argues that the delay in signing the amendment into law creates uncertainty for the South African Police Service (SAPS) and perpetuates a culture of violence, despite a May 2002 Constitutional Court ruling that struck down parts of the original section to align with the Bill of Rights.

• The original Section 49 of the Criminal Procedure Act 51 of 1977 allowed for the killing of a suspect to be deemed 'justifiable homicide' if the person was being arrested for a schedule 1 offence and the officer could not prevent the suspect from fleeing by other means.
• A 1998 amendment to Section 49, passed by parliament but not signed by the state president as of July 2002, restricts the use of force intended to cause death or grievous bodily harm to three specific scenarios: immediate necessity for self-protection of the arrestor or their assistant, a substantial risk that the suspect will cause future harm or death if the arrest is delayed, or if the offence in progress involves life-threatening violence or a strong likelihood of grievous bodily harm.
• Government officials, including the ministers of Justice and Constitutional Affairs and Safety and Security, as well as commissioner Jackie Selebi, resisted the implementation of the 1998 amendment, arguing it placed police at risk of assault from criminals.
• The author disputes the claim that the amendment endangers police by noting that most police deaths in South Africa occur off duty. Between 1994 and 1999, an average of 235 police officials were killed annually, with 64% killed off duty and 36% killed in the line of duty.
• Between 1997 and 2000, more than 1,500 people were killed by the police in South Africa.
• In May 2002, the Constitutional Court ruled in the case of State v Walters and others, striking down subsection two of the old Section 49 and reinterpreting 'reasonable use of force' to align with the findings of the Govender v the Minister of Safety and Security case.
• The Supreme Court of Appeal in Govender v the Minister of Safety and Security determined that the use of firearms during an arrest should generally be excluded unless the suspect poses an immediate threat of serious bodily harm to the arrestor or the public, or has committed a crime involving the serious infliction of grievous bodily harm.

APA

Maepa, T. (2002). How much might is right? Application of Section 49 of the Criminal Procedure Act. Institute for Security Studies. https://issafrica.org/01-jul-2002-sacq-no-1/how-much-might-is-right-application-of-section-49-of-the-criminal-procedure-act

Chicago

Maepa, Traggy. How much might is right? Application of Section 49 of the Criminal Procedure Act. Institute for Security Studies, 2002. https://issafrica.org/01-jul-2002-sacq-no-1/how-much-might-is-right-application-of-section-49-of-the-criminal-procedure-act.

Wikipedia

{{cite report |last1=Maepa |first1=Traggy |title=How much might is right? Application of Section 49 of the Criminal Procedure Act |publisher=Institute for Security Studies |date=July 2002 |url=https://issafrica.org/01-jul-2002-sacq-no-1/how-much-might-is-right-application-of-section-49-of-the-criminal-procedure-act |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{maepa2002how, author = {Maepa, Traggy}, title = {{How much might is right? Application of Section 49 of the Criminal Procedure Act}}, institution = {Institute for Security Studies}, year = {2002}, month = jul, url = {https://issafrica.org/01-jul-2002-sacq-no-1/how-much-might-is-right-application-of-section-49-of-the-criminal-procedure-act}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }