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Spisto, Michael; Wright, Fran --- "(Justifiable) Homicide Whilst Effecting an Arrest: When is this Lawful? A Comparison Between the South African and New Zealand Systems of Law" [1999] WkoLawRw 6; (1999) 7 Waikato Law Review 147



This article compares and contrasts the South African and New Zealand systems of law with regard to the question of the lawfulness or otherwise of homicide committed whilst effecting arrests. This article also identifies the main statutes and discusses the most important court decisions handed down in recent years in each legal system, each of which has attempted to regulate and control the actions of arresting officers so that unnecessary homicides do not result during arrests.

The various problems and short-comings that the courts have encountered when interpreting the requisite statutes have also been identified and discussed for each legal system. This article, in its conclusion, recommends certain proposals that could be considered by both legal systems in reducing the number of homicides that occur in the course of making an arrest.



Section 49(2) of the South African Criminal Procedure Act 1977 authorises arrestors and those persons who are statutorily empowered to assist with an arrest, to kill someone who resists an arrest or takes flight, where that person is to be arrested for an offence referred to in schedule 1 of the Act.[1] However, before this homicide can be lawful, strict requirements have to be complied with by the arrestor. If the arrestor is to be charged with homicide, the state must prove beyond a reasonable doubt that the arrestor intentionally killed the deceased. Then the burden falls upon the accused to prove on a balance of probabilities that he or she met with the requirements of section 49(2).

In R v Britz, Schreiner J A indicated that, because firearms may be too readily used to prevent an escape of a person who is suspected of committing a non-serious offence, and because laws emphasise the value of human lives, the legislature must have intended that an arrestor who has killed another and seeks to use the special protection under section 49(2), should have the ultimate onus of proving that his or her actions were in fact justified. Schreiner J A noted that offences included as schedule 1 offences vary in seriousness and reprehensibility, and in this regard people who have acted unreasonably may still be protected. He submitted that these dangers would be materially increased if the onus lay upon the Crown.[2] Hence, the burden of proof is an important safeguard to the individual for it places upon the arrestor an obligation to show that the force he or she used was not excessive under the given circumstances.

In regard to section 49(2), the arrestor must show that he or she intended to arrest the deceased, and was as such authorised to do so. Furthermore, the arrestor must have known or reasonably have suspected the deceased of having committed a schedule 1 offence, and this must be the sole object of the intended arrest.[3] In Wiesner v Molomo, it was indicated that there must be an objectively reasonable suspicion that the deceased had committed a schedule 1 offence.[4] Hence, if the arrestor’s suspicion of the commission of an offence mentioned in schedule 1 is found to be reasonable, by considering the circumstances that led the arrestor to suspect a schedule 1 offence, and if the arrestor is entitled to arrest, he or she is not deprived of the protection afforded under section 49(2). In S v Nell and another, it was noted that, when the arrestor subjectively, but unreasonably, believed that the accused had committed a schedule 1 offence, the arrestor could not be afforded the protection under section 49(2).[5] Hence section 49(2) requires a reasonable suspicion, and an unreasonable suspicion, no matter how honestly arrived at by the arrestor, will provide no protection under section 49(2). Where the circumstances relating to a schedule 1 offence are present, it is unnecessary to weigh the intentional causing of death against the seriousness of the suspected offence.

In R v Britz, Schreiner J A remarked:

If the circumstances specified in the section are present, the conditions for protection are completely fulfilled and, however unreasonable the arrestor may have been, the killing is deemed to be justifiable.[6]

It would appear from this statement that unreasonable conduct is acceptable by the arrestor and section 49(2) protects persons who should not be protected. Hence, because schedule 1 offences include not only heinous offences such as murder and treason, and also trivial offences such as simple theft, it would permit, in certain circumstances “the owner of a fruit stall ... to shoot and kill an unknown fleeing youth who has stolen an apple”.[7]

It is also fundamental for the arrestor to prove that, although an attempt was made to arrest the deceased, the deceased either resisted the arrest or fled.[8] In S v Swanepoel, the arrestor was unable to prove that he could have believed that the deceased was escaping. Hence, Rabie CJ came to the conclusion that the arrestor’s reliance on section 49(2) could not succeed.[9]

It is also crucial for the arrestor to show that the accused was aware of the attempt to arrest him or her while escaping, and that this attempted arrest resulted in the accused’s death. Hence, it was noted that the requirement of s49(1), regarding the use of force by an arrestor where the accused has committed a schedule 1 offence and tries to escape, being clear to the accused that an attempt is being made to arrest him, is also applicable to section 49(2) regarding homicide.[10]

Hence, the phrase in section 49(1)(b) “flees when it is clear that an attempt to arrest him has been made” requires that it must be clear to the accused at the time of being arrested that the arrestor is attempting to arrest the accused. If these requirements are not read into section 49(2), it would lead to an untenable result that lesser requirements would be laid down for justifiable homicide than for a mere wounding in terms of section 49(1). Hence, in S v Barnard,[11] Van Heerden JA could not find in favour of the arrestor in terms of section 49(2) because it was evident that the deceased did not know that the arrestor was attempting to arrest him.

It would also appear to be significant, according to the phrasing of section 49(2), that the arrestor who tries to effect an arrest, and who kills the accused, must have intended to kill the accused since there was no other way of preventing the accused from fleeing.[12] This view has been supported in an obiter dictum in S v Swanepoel.[13] Hence, it would seem that section 49(2) will not apply if the state cannot prove beyond a reasonable doubt that the arrestor had the intention to kill the deceased. It follows that the arrestor may be convicted of culpable homicide if the state can prove beyond a reasonable doubt all the elements of culpable homicide.

Probably the most significant and difficult criterion to prove is the fact that there were no other practicable and reasonable means of arresting the deceased or preventing the deceased from fleeing other than by killing him or her. Cilliers JA indicated that an alternative means cannot be considered unless it is practicable and reasonable, noting also that one cannot expect the arrestor to have had time to consider which means is most effective to avoid killing the accused, since, by that time, the accused would have fled.[14] Rumpff CJ, however, noted that s49 (2) authorises the lawfulness of killing only when no other lesser force could have been used.[15]

From this it follows that section 49(2) requires an element of reasonableness in deciding whether it was possible to arrest without killing.[16] In S v Gumbi,[17] it was noted that what could have been done means what could in reason have been done, having regard to the facts which the arrestor knew or ought to have known. Hence, all the circumstances and merits of the case will be considered in terms of this subsection. This is to establish whether the deceased could not have been arrested or prevented from fleeing with less force in a different manner.[18] Consequently, this requirement will be strictly construed using an objective approach to reasonableness. Hence, the particular view of the arrestor, relating to what was or was not possible, will be ignored.[19] However, the court should place itself in the position of the arrestor and consider the circumstances that led the arrestor to take those measures that he or she thought to be correct.

In R v Labuschagne,[20] it was indicated that, although the conditions required by the subsection are present, and there may be justification despite unreasonableness, this does not mean that reason is to be disregarded in deciding whether it was possible to arrest without killing. Schreiner J A in this regard mentioned three possible ways that the arrestor may have prevented the deceased from escaping without killing the deceased. First, an attempt should be made to catch the accused. Secondly, if a firearm is to be used, the accused should be shot in the leg. Thirdly, one should obtain the assistance of others. Therefore, if these methods were not possible, and the arrestor succeeded in showing this, the killing was justified in this case.[21]

In Matlou v Makhubedu,[22] regarding the issue of reasonableness, it was noted that the use of a weapon should be regarded as an extreme measure, and, in general, a weapon may not be used without first sounding a warning shot. It is also clear that the use of a weapon will depend upon whether the use thereof was reasonable in the circumstances.

Furthermore, it is noted that the words “cannot arrest him or prevent him from fleeing by other means” cannot be so widely construed so as to include also the notion of exercising a discretion whether or not to arrest.[23] Hence, section 49(2) applies only to the manner of effecting an arrest. In Mazeka v Minister of Justice,[24] it was stated that killing, by using excessive force not covered by the protection allowed under section 49(2), will result in culpable homicide, unless the excess was so unreasonable that it could only justify a verdict of murder.

It is important to note that section 49(2) justifies not only an arrestor who has intentionally killed another whom he or she is seeking to arrest, but also a person charged with assault. This is because it would never have been the intention of the legislature to place an arrestor who has killed in a better position than the arrestor who has merely wounded. In this regard Rumpff CJ noted that the arrestor could use any wilful degree of force, even that resulting in death, if the intention was to wound the suspect, but accidentally caused the suspect’s death. Hence, he submitted that the word “killing” in section 49(2) should be construed as including “intentional wounding”.[25]

A recent judgment handed down by Van Heerden JA listed the requirements to be complied with in order that homicide be deemed justifiable in terms of section 49(2):

(a) the arrestor must have reasonably suspected the deceased of committing a schedule 1 offence;

(b) the deceased was on the verge of being arrested;

(c) the deceased must have been aware that the arrestor’s intention was to arrest the deceased;

(d) the deceased must have had the intention to foil the attempted arrest by fleeing;

(e) there was no other way, given the circumstances, of preventing the deceased from fleeing, other than by killing him.[26]

This judgment is very significant for it attempts to indicate formally the requirements that must be complied with if the killing by the arrestor is to be legally justified. This is very important to the individual for it safeguards his or her right of liberty against excessive or unwarranted behaviour on the part of the arrestor, and it does this by clearly stating the specific requirements that must be complied with.

Van Heerden JA indicated that, if the arrestor has satisfied all the requirements listed above, the arrestor is to be free of any guilt. However, he noted that it does not necessarily follow that, if one or more of the requirements were not satisfied, the arrestor would have committed an offence.[27] This is untenable and indicates a flaw in his judgment. If specific requirements are formally laid down and then later not strictly adhered to, with the result that the requirements become more lenient, these formal requirements do not seem as crucial as one would have prima facie believed. The end result is that the individual will not be as closely safeguarded against the excessive and arbitrary power of the state. Hence, it is noted that there still seems to be uncertainty regarding the actual requirements that need to be complied with in terms of section 49(2).

It is, however, clear that the arrestor will not be accountable if the arrestor reasonably believed that the requirements above had been satisfied. Van Heerden JA notes that “reasonably believed” is equivalent in meaning to what “a reasonable man in his position would have believed”. In the particular case, the arrestor could not show that he satisfied the requirements (c) and (d) above, or that he could “reasonably have believed that this was the case”. Hence, the arrestor could not rely on the protection of section 49(2).

Hence, it is evident that there is still a relative amount of uncertainty regarding the requirements to be complied with under section 49(2). This is perhaps because the legislature itself is uncertain what it should do. On the one hand, the legislature cannot tolerate excessive and unwarranted behaviour of the arrestor and sees itself as having an inherent obligation to protect the individual against this, for he or she may in fact be innocent. On the other hand, the legislature does not want to inhibit the power of the arrestor such that the arrestee can resist an arrest and escape.

Therefore, it would appear that the legislature needs to strike an appropriate balance between these two considerations so that South African law can be seen to be impartial and unbiased with the result that the guilty party will ultimately bear the blame. What complicates the issue is the understanding of the term “unreasonable”. It is evident that the law is unable to give it a precise meaning and attaches a rather vague definition to it - that is, what was reasonable in the given circumstances, and whether the person who was killed, could have been brought under control or prevented from fleeing by means of a less severe force. These questions are by no means easy to answer in every situation and sometimes do not provide a clear answer. However, these questions are perhaps the best way of providing an answer because they consider an element of impartiality which is crucial if the individual is to have any protection against the state.



This section of the article will outline the New Zealand legislation applicable when a suspect is killed while being arrested. The New Zealand Crimes Act 1961 contains a number of defences that might be used in such a situation and such cases may also be brought within the ambit of self-defence. There is very little case law explaining the scope of the various defences or discussing the potential overlaps between them, and much of what will be said is, of necessity, speculative.

The Crimes Act sets out the defences that may be used when a police officer or a private citizen uses force in arresting a suspect or preventing his or her escape. The defences specific to this situation are in sections 39 and 40:

39. Force used in executing process or in arrest -

Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:

Provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

40. Preventing escape or rescue -

(1) Where any person is lawfully authorised to arrest or to assist in arresting any other person, or is justified in or protected from criminal responsibility for arresting or assisting to arrest any other person, that authority, justification, or protection, as the case may be, shall extend and apply to the use of such force as may be necessary-
(a) To prevent the escape of that other person if he takes to flight in order to avoid arrest; or
(b) To prevent the escape or rescue of that other person after his arrest-unless in any such case the escape or rescue can be prevented by reasonable means in a less violent manner:

Provided that, except in the case of a constable or a person called upon by a constable to assist him, this subsection shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

Sections 39 and 40 apply to anyone who makes an arrest or tries to prevent a suspect from fleeing. The first condition that must be met is that the arrest itself is justified or is one for which there is protection from criminal responsibility. There is no common law power of arrest in New Zealand: all powers of arrest are statutory.[28] Arrest without warrant by a police officer is permitted if the officer finds a person disturbing the public peace or committing an offence punishable by imprisonment, or if he or she has good reason to suspect that either of these has occurred.[29] If the officer calls upon another person to assist, that person is justified in assisting unless he or she believes that the officer has no reasonable grounds for the belief or suspicion that a relevant offence has occurred.[30] A private citizen is justified in making an arrest (that is, no action in criminal or civil law may be brought) if the citizen found the arrestee committing an offence under the Crimes Act carrying a penalty of three or more years’ imprisonment. There is protection from criminal (but not civil) responsibility if he or she found the arrestee at night in circumstances giving reasonable and probable grounds for believing that a Crimes Act offence was being committed, or at any time if he or she has reasonable and probable grounds for believing that a Crimes Act offence has been committed or if the arrestee is escaping from and is still being freshly pursued by a person who has lawful authority to arrest him or her.[31]

Where the arrest itself is justified or there is protection from criminal responsibility for the arrestor,[32] necessary force may be used in carrying out the arrest, subject to the proviso that there is no defence if the force used is intended to kill or is likely to kill. The arrestor cannot receive more protection for the use of force than was given for the arrest itself: if the arrest was justified, no liability will arise at all, but if it was one for which there was simply protection from criminal responsibility, that protection can be extended to the force used in conducting the arrest.[33]

There is a separate group of defences concerned with the use of force in defence of property. Sections 52, 53 and 56 govern defence of movable property, land and buildings. These allow the use of reasonable force but do not justify striking or doing bodily harm to the offender. Section 55 allows the peaceable possessor of a dwelling house to use necessary force to prevent forcible entry. This also covers the use of force to prevent burglars from continuing a burglary after they have entered a home. It is necessary under section 55 for the user of force to be the peaceable possessor of the home in question. This is the only arrest or crime prevention-focussed defence that is capable of being extended to the use of deadly force by someone other than a police officer.

The burden of proof is on the prosecution, beyond a reasonable doubt. The only burden that lies upon the defendant is an evidential one: the evidence must include a “credible narrative” that might lead a jury to entertain the reasonable possibility that a defence is made out.[34] The application of this principle to a defence under section 40 was explained in Hill v Police:

For the defence to fail ... the prosecution must prove beyond reasonable doubt that either the accused did not have reasonable and probable grounds for his arrest or that he used more force than was necessary or that he could have arrested them in a less violent manner.[35]

The same applies to the other defences discussed here.

The availability of a defence under sections 39 and 40 is not defined in terms of the offence suspected or interrupted by the arrestor. In theory, the defence is available whatever the offence, provided that the arrest cannot be made or the escape prevented “by reasonable means in a less violent manner”. Section 55 is limited to the offence of breaking and entering a dwelling house and this defence allows whatever force is “necessary” to prevent forcible entry. The test is an objective one.[36]

One factor that must be taken into account is whether the person making the arrest had carried out his or her duties under section 316 of the Act. Section 316(1) states that:

It is the duty of everyone arresting any other person to inform the person he is arresting, at the time of the arrest, of the act or omission for which the person is being arrested, unless it is impracticable to do so, or unless the reason for the arrest is obvious in the circumstances. The act or omission need not be stated in technical or precise language, and may be stated in any words sufficient to give that person notice of the true reason for his arrest.

According to section 316(4), the failure to observe this duty does not, of itself, result in criminal responsibility for any force used in making the arrest, but it “shall be relevant to the inquiry whether the arrest might not have been effected ... by reasonable means in a less violent manner”. The rationale is probably that a person who understands that he or she is being arrested, and why, is less likely to resist arrest. The requirement to use only force that is strictly necessary therefore involves a duty to act in a manner that minimises the likelihood that force will become necessary.

Apart from this, there is little guidance. The sections are rarely used, so that courts have not had the opportunity to indicate what they mean. There is no case law discussing their use when deadly force has been used. Section 55 was used in R v Frew, where a homeowner lay in wait for burglars and then shot an intruder in the knee. Unfortunately, the issue of whether the force used was reasonable received little attention, since it was a “jury point”. Tipping J simply commented that he agreed with the jury that excessive force had been used.[37]

The most useful source of information about how sections 39 and 40 might be interpreted is the police Manual of Best Practice and the reports of the Police Complaints Authority. The Manual of Best Practice indicates that a firearm is to be used only in the following circumstances:

1. In defence of the officer or another if the officer fears death or grievous bodily harm and protection cannot reasonably be provided by less violent means, or
2. To arrest an offender if he or she poses a risk of death or grievous bodily harm in the course of resisting arrest, the arrest cannot be reasonably effected less violently or delayed without causing danger, or
3. To prevent escape of an offender who has taken flight to avoid arrest or escaped after arrest, who poses a risk of death or grievous bodily harm to any person, and only if the flight or escape cannot reasonably be prevented less violently.[38]

The Manual also states that the offender is not to be shot unless he or she has first been called on to surrender, unless this is impracticable or unsafe, and that that shooting must be the only way in which he or she can be disarmed or arrested and that delay in apprehension would be dangerous or impracticable. These requirements are clearly intended to reflect the formal requirements of sections 39 and 40, and, where they have been complied with, the discretion not to prosecute would appear to be exercised.

The police Manual highlights an important feature of the law relating to the use of force against suspects: the overlap between the defences designed specifically for this purpose and the more general defence of self-defence, as defined in section 48.[39] There are two ways in which a person making an arrest or trying to prevent an offence from being committed might be said to be acting in self-defence. The first is if the arrest is of someone who was threatening or attacking the defender or someone else whom the defender sought to protect. Thus, section 48 would assist in many cases where the original offence was one of violence. A second use of section 48 would be where a lesser degree of force has been resisted, requiring the use of force in self-defence.

There is also a potential overlap between section 48 and section 41, which justifies the use of force to prevent violent crime or suicide[40] if the force is used while the offence is still incomplete. The Canadian Supreme court considered the relationship between self-defence and the use of force to prevent crime in Hebert v R. It held that the Canadian equivalent of section 41 was “clearly designed to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring. It would make no sense to classify a personal assault as the commission of an offence which triggers the use of [the equivalent of section 41]. If this were the case, [the provisions relating to self-defence] would be redundant”.[41]

There is some force in this argument and the potential for redundancy is even greater than the Canadian court suggests, given that the New Zealand self-defence provision also covers defence of another. Where there is a violent offence against the person threatened, the only situation in which section 41 might be more favourable than section 48 would be if the necessity of the situation dictated a greater degree of force than was proportionate to the threat posed. Section 41 refers simply to reasonable necessity, and this does not necessarily import the proportionality aspect of reasonable force required under section 48. However, since section 41 is restricted to “immediate and serious injury”, the difference between what is “reasonable force” and what is “reasonably necessary” is probably not a large one. Given that section 48 does not require that the defender’s belief that a threat exists is a reasonable one, and that section 41 does have a reasonable belief component, it is unlikely that section 41 would be used except to prevent suicide or offences against property rather than the person. The redundancy is a practical one, since there is no apparent benefit in using section 41 as an alternative to section 48.

In practice, when section 48 provides a more favourable defence, it is likely to be used in preference to the more specific alternatives. An example of where section 48 might be preferred is where a mistake (especially an unreasonable mistake) has been made about the danger posed by the suspect. Another situation is where there was no statutory authorisation for the arrest or use of force to prevent crime or for the amount of force actually used. This particular overlap, therefore, has the consequence of diluting the restrictions to the permission to use force that are written into sections 39 and 40. Indeed, even where the arrestor is a police officer, section 48 might well be preferred, since its meaning is much clearer.

That this occurs - and for good reason - is indicated by the reports of the Police Complaints Authority. The authority investigates, inter alia, all fatal shootings by police officers. Although the Authority does not determine whether criminal charges will be laid, it does express an opinion.

One relevant report is into the shooting of Trudy Jane Speirs in July 1996. She took a dairy owner hostage during a robbery. She was armed with a knife and threatened to kill him; some threats were made in the presence of police officers. The incident ended when an officer shot her twice. She was then handcuffed and removed by ambulance. The subsequent report emphasised that the action was taken to protect the hostage:

Police personnel managing the incident had to accept responsibility for the life of the hostage. If the armed offender takes a hostage, and it has not been satisfactorily established why, but it seems at least as a form of security, or bargaining chip, or as part of the robbery, the law enforcers have a strong obligation to rescue the hostage. All negotiations and tactics must be fashioned towards that desirable end.[42]

The Complaints Authority was not charged with determining whether the officer concerned should face prosecution, but it noted in its report that a police investigation had reached the conclusion that there was no criminal liability. The Authority itself sought a further opinion. The Auckland Crown Solicitor concluded:

I have no hesitation whatsoever in concluding that the defence in section 48 ... is made out and that there is no evidence whatsoever of any culpable conduct on the part of [the officer].[43]

Apparently the police investigation also referred to section 48. There are two reasons for adopting this approach. The first is that it is unclear precisely which of the more specific defences would be relevant. Speirs could not be said to be “resisting” arrest or trying to escape from arrest since, at the time when she was shot, no attempt appears to have been made to arrest her. The second reason for preferring section 48 was that non-violent means of bringing the incident to an end had not at that stage been exhausted. Contact had been made with two people known to Speirs and they were being brought to the scene. This is not to say that there was no urgency to the situation: the problem was that it was of a kind not necessarily contemplated by the defences provided under sections 39 and 40, whereas the situation contemplated by section 48 was clearly in existence.

Another Complaints Authority report relied on both section 39 and section 48. Terence Kehoma Thompson was shot dead near Hastings in June 1996. Thompson was being hunted because he was thought to have killed a police officer some days before. He was confronted in an orchard, and the officer who then shot him described his purpose as being “capture”, or “[t]o arrest him with least possible fuss”. He said that he believed Thompson had two firearms. He saw Thompson reach under his clothing and heard him say “Shoot me, Shoot me”. The police officer fired one fatal shot at Thompson. A report by counsel concluded that the shooting was justified, both under section 39, because there was resistance to arrest and the arrest could not have been made by less violent means, and under section 48, because the officer believed himself to be endangered. This clearly demonstrates the scope for overlap.


A comparison has been made between two different legal systems when arrestors effect arrests. The two legal systems, the South African and the New Zealand systems, have been seen to be noticeably different in both their substantive content and in their application of law. In this article, with regard to the law relating to homicides whilst effecting arrests, the major characteristics and features of each system have been outlined and analysed and, most importantly, the short-comings inherent in each system have been noted. It is interesting to note that the authorisation that arrestors may have when effecting arrests is a highly complex issue, and both legal systems have attempted to overcome the difficulties associated therewith by enacting legislation unique to its own country’s principles and values. However, it is evident from the discussions that loopholes exist in both legal systems and that both systems are imperfect. Thus, although the legislature does not wish to authorise excessive force on the part of the arrestor, because it has an inherent obligation to protect the individual against this, the legislature, at the same time, does not wish to inhibit the power of the arrestor so that the arrestee can resist an arrest and escape. The two systems have attempted to strike an appropriate balance between the aforementioned considerations, but it is submitted that neither country has an ideal system in place as yet.

In this conclusion, the major features unique to each system will be outlined and a workable suggestion will be proposed which will draw on some of the unique elements of each. This suggestion could then be considered by both the South African and the New Zealand legislatures when reviewing their respective legal systems on this issue.

Considering the South African criminal legal system, it was evident in the discussion that arrestors, and those persons who are statutorily empowered to assist with an arrest, are authorised to kill someone who resists an arrests or takes flight, where that person is to be arrested for an offence referred to in schedule 1. If one examines the schedule 1 offences, it will be evident that these vary in both seriousness and reprehensibility. Thus, a person may be shot and killed by an arrestor for an offence which is not serious or even for one which could arguably be fairly petty or even trivial in nature or content. Furthermore, under the South African system, the legislation authorises the lawfulness of killing when no other lesser force could have been used. Thus, an element of reasonableness is required in deciding whether it could have been possible to effect an arrest without killing that person. Various South African judgments have been handed down in an attempt to list the requirements to be complied with in order to define the notion of reasonableness and, consequently, when it may be deemed to be a homicide which is justifiable. However, as noted in this article, there are various flaws in the judgments which have created uncertainty in the application of the respective legislation. Thus, the notion of reasonableness has given rise to problems, as the law has defined it far too vaguely leading to uncertainty and speculation in its application.

It can, therefore, be stated that these sections of the South African criminal legislation are too harsh and uncertain. It is obvious that schedule 1 offences need to be trimmed down. Arrestors do still need to have the power to commit justifiable homicide when effecting arrests, but the application of this authorisation should only be permitted in those situations narrowly redefined by schedule 1, where the subject flees and in situations where the lives of the arrestors or members of the public are in immediate danger. To remove the power completely from the arrestors to commit homicides justifiably whilst effecting arrests would not be logical or productive, as members of the public and the arrestors themselves would not be protected in those situations in which their lives would be in immediate danger. Furthermore, it may be prudent to consider redefining section 49 of the South African Criminal Procedure Act so that the legislation becomes less discretionary on the part of the arrestor in such a way that the notion of what is or is not reasonable does not form the basis of the consideration.

We now consider the major features of the New Zealand legislation. It has been seen that the Crimes Act sets out the defences that may be used when the arrestor uses force in effecting an arrest or in preventing a suspect from fleeing. It was evident in sections 39 and 40 of the Act that only a constable, or a person authorised by a constable, may use force powerful enough to cause the death of the arrestee where the arrest itself is justified or is one for which there is protection from criminal responsibility. That is, in terms of the aforementioned sections, there must have been resistance to an arrest and the arrest could not have been made by using less violent means. However, similar to the South African legislation, the wording thereof is too imprecise, vague and discretionary on the part of the arrestor. That is, it may not always be possible for the arrestor, faced with a potentially harmful situation, to decide whether his or her life might be in immediate danger at that stage and therefore, at that split second, to judge what are “reasonable means”. To hesitate might cost the arrestor his or her life. By killing the arrestee, this might lead to criminal and or civil implications on the part of the arrestor if the (lay) jury believe, beyond a reasonable doubt, that the arrestor did not have reasonable or probable grounds for the arrest, or that the arrestor used more force than was necessary, or that the arrestor could have effected the arrest in a less violent manner. Thus, the availability of this defence is not defined in terms of the offence suspected and is uncertain on the whole when needing to use it. Although it is evident that the Manual of Best Practice provides some kind of indication on how sections 39 and 40 might be interpreted, the courts have not had adequate opportunity to test these sections when deadly force has been used. Thus, the sections remain largely speculative and unclear in their application. This is unsatisfactory.

Section 48 of the Crimes Act also refers to the use of force against suspects and would assist where the original offence was one of violence. However, if it is used in the more general sense of self-defence where the arrestor is a police officer, section 48 might be preferred in so far as its meaning is clearer. That is, there need not be statutory authorisation regarding the use or amount of force for the arrest. However, this section dealing with self-defence should not be allowed to displace difficult legislation that ought to be applied in the proper context.

In summation, it is submitted that the legislatures of the two legal systems ought to note precisely which offences are heinous offences and in which circumstances justifiable homicide can exist without the possibility of the arrestor fearing that criminal and or civil suits could be instituted against him or her. This would enable the arrestor to know precisely for which crimes and in which circumstances he or she could kill an arrestee justifiably and without any comeback. It is proposed that heinous crimes should only include murder, robbery, arson, rape, kidnapping, childstealing and assault when a dangerous wound is inflicted. Such homicide would be justifiable only where these crimes have already taken place, where the suspect flees and where the arrestor subjectively believed (not objectively as against another reasonable arrestor) that his or her life, or the life or lives of a member or members of the public, was or were in immediate danger.


Schedule 1 of the South African Criminal Procedure Act 51 of 1977.

[Schedule 1 substituted by section 17 of Act No 26 of 1987.]

(Sections 40, 42, 49)



Public violence.


Culpable homicide.


Indecent assault.






Assault, when a dangerous wound is inflicted.


Malicious injury to property.

Breaking or entering any premises, whether under the common law or a statutory provision, with intent to commit an offence.

Theft, whether under the common law or a statutory provision.

Receiving stolen property knowing it to have been stolen.


Forgery or uttering a forged document knowing it to have been forged. Offences relating to the coinage.

Any offence, except the offence of escaping from lawful custody in circumstances other than the circumstances referred to immediately hereunder, the punishment wherefor may be a period of imprisonment exceeding six months without the option of a fine.

Escaping from lawful custody, where the person concerned is in such custody in respect of any offence referred to in this Schedule or is in such custody in respect of the offence of escaping from lawful custody.

Any conspiracy, incitement or attempt to commit any offence referred to in this Schedule.


Section 49 of the South African Criminal Procedural Act 51 of 1977.

49. Use of force in effecting arrest.

(1) If any person authorized under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person

(a) resists the attempt and cannot be arrested without the use of force; or

(b) flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees, the person so authorized may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing.

(2) Where the person concerned is to be arrested for an offence referred to in Schedule 1 or is to be arrested on the ground that he is reasonably suspected of having committed such an offence, and the person authorized under this Act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide.

[*] BSc, LLB, LLM (UCT), Lecturer in Commercial Law, Department of Accounting, University of Waikato, Attorney of the High Court of South Africa. Mr Spisto thanks Dr Christine Lee, BSc(Hons) (Dundee) DipAcc&Fin, DipMgtSt, MMS, PhD (Waikato), who assisted in the formatting and preparation of the manuscript.

[**] BA(Hons) (Stirling), LLB (Auckland), Lecturer in Law, University of Waikato. Ms Wright wrote the section in this article headed “The Law Relating to Homicide Whilst Effecting an Arrest in New Zealand”.

[1] Du Toit, E De Jager, F Paizes, A Skeen A and Van der Merwe, S Commentary on the Criminal Procedure Act (1987) 1-33. See also Appendices 1 and 2 attached.

[2] 1949 (3) SA 293 (A), 303-304.

[3] Barrow, 0 J Handbook on the Criminal Procedure Act 51 of 1977 (1986) 29.

[4] 1983 (3) SA 151 (A), 159 B.

[5] 1967 (4) SA 489 (SWA), 496 D.

[6] Supra note 2, at 303-304.

[7] Landsdown, AV and Campbell, J South African Criminal Law and Procedure vol V Criminal Procedure and Evidence (1982) 261-307.

[8] Barrow, supra note 3.

[9] 1985 (1) SA 576 (A), 590 A.

[10] S v Barnard 1986 (3) SA 1 (A), 7 C-G; Macu v Du Toit 1983 (4) SA 629 (A), 645 E-H.

[11] At 10 F-G.

[12] Du Toit, supra note 1, at 1-33.

[13] 1985 (1) SA 576, 588 I–589 A.

[14] Macu v Du Toit, supra note 10, at 635 H.

[15] Matlou v Makhubedu 1978 (1) SA 946, 958 A.

[16] Landsdown and Campbell, supra note 7, at 261-307.

[17] 1962 (1) SA 188 D.

[18] Macu v Du Toit, supra note 10, at 635 D.

[19] Landsdown and Campbell, supra note 7, at 261-307.

[20] 1960 (1) SA 632 (A).

[21] R v Britz, supra note 2, at 303-304.

[22] Supra note 15, at 961 A.

[23] S v Scholtz 1974(1) SA 120 (W), 126 H.

[24] 1956 (1) SA 312.

[25] Matlou v Makhubedu 1978 (1) SA 946 (A), 957 F.

[26] S v Barnard, supra note 11, at 78D-79 E.

[27] Ibid.

[28] Police v Cox [1989] NZCA 91; [1989] 2 NZLR 293, 295. If the arrest is unlawful, there has been a breach of the New Zealand Bill of Rights Act 1990, with the consequence that all evidence of events after the time of the arrest would be inadmissible (R v Goodwin [1993] 2 NZLR 153, R v N (unrep, CA 269/98, 2 December 1998)).

[29] Crimes Act 1961, s 315.

[30] Crimes Act 1961, s 34.

[31] The Court of Appeal has recently confirmed that these provisions in the Crimes Act are the only authority for a “citizen’s arrest” and there is no residual power of arrest for less serious offences: R v N, supra note 28. The distinction between justification and protection from criminal responsibility is explained in R v N, supra note 28, at 12.

[32] A complication here is the application of the New Zealand Bill of Rights Act 1990 to citizens’ arrests, as discussed in R v N, supra note 28. This issue will not be considered in this article, since it does not impact upon the legality of the use of force.

[33] Although in theory this lays the arrestor open to a civil action, the civil remedies available to the arrestee are limited as a result of New Zealand’s accident compensation legislation.

[34] R v Matoka [1987]1 NZLR 340, 344; R v Tavete [1988]1 NZLR 428, 430.

[35] (1994)12 CRNZ 89, 94 (HC), per Ellis J.

[36] Ibid, at 93.

[37] (1992) 9 CRNZ 445, 451.

[38] Manual of Best Practice, General Instruction F61, quoted in Report by the Police Complaints Authority on the Fatal Shooting of Terence Kehoma Thompson at Hastings on 24 June 1996, 31.

[39] Crimes Act 1961, s 48: “Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.”

[40] Crimes Act 1961, s 41: “Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.”

[41] (1996) 135 DLR (4th) 577, 582.

[42] Report by the Police Complaints Authority following the shooting of Trudy Jane Speirs by a Police Officer on 29 August 1996 at Auckland, 3.

[43] Ibid, 19.

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