#GeorgeFloyd: Police Brutality and Public Violence

By Simon David Dippenaar

The death of a handcuffed suspect due to a restraint technique employed by a police official in the United States, and subsequent rioting, death and destruction of property, call these crimes into question. Without wading in on the race and political issues, this post simply considers the legality thereof, under the local law.

Police brutality or police violence is legally defined as a civil rights violation where officers exercise undue or excessive force against a subject. Under the local law, use of force by Police Officials is regulated by the Criminal Procedure Act, (No.51 of 1977), which provides:

49. Use of force in effecting Arrest:

(l) 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.

Taking the version most favourable to the police official in question, that the suspect was resisting, and considering the size, level of resistance and long history of criminal convictions, it is submitted that the use of force was neither reasonable, or necessary. He was lying prone, handcuffed, with the full body weight of three police officials on various parts of his body, and had clearly surrendered. Any defence available to the police official in question would fail, on this ground, and he would be liable on a charge of murder or culpable homicide. If seized with the matter as an acting Magistrate, I would convict him and issue a sentence of ten years imprisonment.

A riot is a form of civil disorder commonly characterised by a group lashing out in a violent public disturbance against authority, property or people. Riots typically involve destruction of property, public or private. Whilst persons have rights to peaceful protest, a riot is not peaceful where there is death, violence, arson and destruction of property.

Such persons commit the crime of Public Violence, which runs as follow:

‘Public violence consists in the unlawful and intentional commission, together with a number of people, of an act or acts which assume serious dimensions and which are intended forcibly to disturb public peace and tranquillity or to invade the rights of others.’ – Snyman

In the present case, the killing of police officials, widespread looting of shops, and the burning of buildings no doubt assume acts of serious dimensions by a number of people, and are intended to disturb public peace to make a political point or draw attention to an agenda.

Whilst police officials may not exceed their powers to brutalise and terrorise communities, societies cannot degenerate into mob rule and the rule of force. Both police, and protest action must fall within the scope of the law, enacted by a democratically elected Parliament. Life freedom, together with democracy, civilisation and the rule of law, must be preserved.

Further reading:

• Arrested unlawfully? Don’t wait for the worst to happen
• Help! There’s an arrest warrant out for me
• Roadblocks? Don’t panic!

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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