Initially, the public largely condemned the actions of the police officers involved, who were subsequently arrested and criminally charged with murder.
Those in support of the officers, however, managed to swing the debate to focus on the high level of police killings and police members’ right to defend themselves.
The discussion has become clouded by inaccurate assertions regarding what actually happened in Krugersdorp. This has been compounded by emotionally charged statements released by colleagues of the charged officers, some members of unions and members of the public.
According to media reports, on Monday 19 October, 32-year-old Khulekani Mpanza was allegedly involved in an attempted armed robbery when he, along with a suspected accomplice, were confronted by the police. One of the two suspects fired a number of shots at the police, before the accomplice managed to escape.
Mpanza, who still carried a pistol, also attempted to escape by running down a street into a residential area. CCTV footage shows four police officials in two patrol vans in hot pursuit, firing at Mpanza and eventually hitting him, causing him to fall and lose his firearm.
One of the police officials then kicks Mpanza while his colleague, a young constable, fires another bullet at close range. At this stage, and in spite of having been shot at least twice, Mpanza still appears to be alive.
A few moments later, the constable returns to Mpanza and takes deliberate aim before shooting him once more; this time in the head, in what appears to be the fatal shot.
There are obvious questions about the lawfulness of the police’s actions after Mpanza was shot the first time, fell and, according to the video footage, was incapacitated. Clearly he no longer posed a threat to the police or anybody else. The use of force in the process of carrying out an arrest is provided for by Section 49 of the Criminal Procedure Act (No 51 of 1977 as amended).
Sub-section 2 is at the heart of this debate. It stipulates that if a suspect resists the attempt at arrest and flees, ‘the arrestor may … use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.’
It further clearly stipulates that the arrestor ‘may use deadly force only if (a) the suspect poses a threat of serious violence to the arrestor or any other person; or (b) the suspect 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 effecting the arrest, whether at that time or later’ (emphasis added).
From this provision, two things are immediately clear. First, while Mpanza was still on the run and with a proven willingness to use his firearm, he clearly posed a threat of ‘serious violence’ to the police and others, justifying the use of deadly force by the police at that time. However, when he fell to the ground and lost his firearm, Mpanza stopped being a threat and no longer appeared capable of fleeing.
Consequently, the legal justification for the use of force also fell away. The subsequent actions of the police after Mpanza was incapacitated – the kicking and shooting – were unlawful and therefore constitutes the criminal offences of assault and murder.
In a live discussion on a South African radio station a few days after the incident, an unnamed police official called in and, among other things, criticised those who argued that the police’s actions were unlawful. He asked what the police were supposed to do when criminals are shooting at them.
The answer is clear and provided for in South African law. When someone shoots at a police officer, that officer and his or her colleagues are fully entitled to shoot back, so as to defend themselves. In fact, there is nothing in Section 49 that requires the police to wait until they are being shot at first. This section makes it clear that when there is a ‘threat of serious violence’ and if ‘there are no other reasonable means’, the police would be within their rights to shoot first. Of course, the basic requirement will always be that their actions are ‘reasonably necessary and proportional in the circumstances’.
Indeed, calls by colleagues, unions and others that more must be done to protect our police, must be supported. However, extra-judicial killings by the police cannot be condoned – whether tacitly or openly – because police members are being attacked and killed by criminals. Acting outside of the law makes the police no different from the criminals from whom they are supposed to protect society.
If South African police officers take this route, we may lead the country to a situation similar to that in El Salvador, where groups such as the Sombra Negra (Black Shadow) have emerged.
Comprised of police and military staff, this vigilante group claims to kill people because the police are unable to enforce the law. But there are increasing indications that Sombra Negra is also involved in political killings and in many ways behaves no different to a criminal gang that has captured state power.
The problem of police killings in South Africa is not the result of inadequate protection by our laws. Rather, substantial increases in violent crimes, such as armed robberies have resulted in higher murder rates; not only of the police, but of all people in South Africa. For example, ‘armed’ robbery increased by 28% in the last three years. The long-term trend in police killings has been largely positive as the numbers of police officers killed, decreased by 71% from 265 deaths in 1994 to a total of 77 in 2013. However, as we have seen the overall murder rate increase, so too have the killings of police officials.
The solution, therefore, is not in to support extra-judicial policing, which will only result in unnecessary deaths and reduce the safety of both the police and the public. The only solution for improving everyone’s safety is to support efforts aimed at reducing violent crime within the law and in professionalising our police. Fortunately, recent steps taken by the Minister of Police Nathi Nhleko and the Parliamentary Portfolio Committee on Police to fix police leadership and promote professionalism are examples of such efforts.
This article was first published by the Institute for Security Studies and is republished here with their permission.