16-08-2012 224 A man armed with home-made spears standing in front of a seated multitude of striking workers in the violent-torn Lonmin?s Marikane mines. Tiro Ramatlhatse

Johannesburg - On the same day that police opened fire on protesters at Marikana, in North West, the National Council of Provinces approved an amendment to legislation clarifying when officers may use deadly force during an arrest.

An ambiguous, old section of the act made it justifiable to kill someone if they were suspected of committing a schedule one offence – which includes treason, sedition, public violence, murder, culpable homicide and rape – and could not be arrested or prevented from fleeing in any other way.

The amendment, based on a 2002 Constitutional Court judgment, clearly breaks down that deadly force is allowed:

* If a suspect is a violent threat to the officer and others;

* If the suspect is “suspected on reasonable grounds” of committing a violent crime of serious bodily harm and there are no other means of carrying out the arrest.

“The purpose of arrest is to bring before court for trial persons suspected of having committed offences,” says the judgment. Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.”

Two police officers have reportedly been killed at Lonmin mine since the unrest erupted last week.

Institute for Security Studies crime and justice senior researcher Dr Johan Burger said minimum force had to be used at all times during crowd control situations.

“This usually starts with negotiations between police and the crowd leaders, and involves trying to persuade them to disperse,” he said.

If this doesn’t work, police can use water cannons, then teargas, and finally rubber bullets to disperse the crowd.

“But then there are clear guidelines on how rubber bullets should be used,” said Burger. “What happened in Ficksburg to Andries Tatane is a perfect example of how they should not be used.”

Deadly force, he said, was an “absolute last resort” and only allowed in self-defence or if an officer’s life was threatened.

At a safety and security summit in Mpumalanga this month, Police Minister Nathi Mthethwa said protests were “a democratic and constitutional right of every citizen”. But in the same breath he insisted the police would not tolerate “violent, barbaric, destruction of property and intolerant conducts, including provoking and touting police”.

And while claiming that new training methods “are now beginning to yield results, for example, when one looks at how police are currently handling service delivery protests”, he repeatedly said cop-killers would not be tolerated.

“The killing of members of the law enforcement agencies, especially the police, is a direct threat to our hard-won constitutional democracy.” – Additional reporting by Sapa

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