Deputy Sheriff Shootings

1 Introduction
The case of a deputy sheriff shooting and consequently killing a teenager after mistaking his fake rifle for an assault rifle provokes this argument of whether it is acceptable for police to use deadly force in an attempt to arrest a potential offender or to stop a crime. The deputy sheriff’s action constitutes that of the crime and the investigation thereof thus fall under the scope of Criminal Law. In order to be found guilty of a crime, the five elements of a crime must be proven beyond reasonable doubt by the state.
The elements of a crime are as follows: conduct, causation, unlawfulness, criminal capacity and fault (mens rea). What follows is an analysis to determine whether the deputy sheriff has any defense/s based
Public authority may excuse officers of the court, law or State from crimes such as aggression upon life, person and property from unlawfulness, when committed in execution of their duties.
The role of the South African Police Services (SAPS) is set out in the Constitution Act 68 of 1996 as follows: ‘prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic of South Africa and their property and to uphold the law’ .
The use of deadly force by the police to combat crime is as expected a very controversial topic, due to the fact that the Constitution grants every person the right to life- even those who have committed serious crimes. . It is also worth analyzing whether use of force by police is a justified infringement upon a person’s right to human dignity- in order for an infringement on a right in the Bill of Rights to be justified, it must meet the requirements set out in Section 36 of the Constitution. It is thus clear that there exists tension between a person’s right to life, dignity and equality and the duty of the police (or any other protective institution) to protect
In Tsose v Minister of Justice 1951 the court made it clear that the main aim of the arrestor must be to bring the suspect before the court for prosecution and conviction. According to the old s49 (2) of the Criminal Procedure Act of 1997, an arrestor may shoot to kill criminals who have committed a schedule 1 offence (such as murder) or attempts to flee an arrest. With the abolition of the death penalty however in S v Makywanyane , the retention of section 49(2) would not be justified. Kriegler J held in Minister of Safety and Security in re: S v Walters that deadly force is only justified if the suspect is believed to have threatened or inflicted serious bodily harm or if he/she poses a threat to the arrestor or someone else . Section 49 was thus amended by section 7 of the Judicial Matters Second Amendment. The current state of matters is that deadly force is only justified if the arrestor believes on reasonable grounds: i) that the force is immediately necessary for the purpose of protecting him-or-herself, or any other person assisting in the arrest, from death or serious bodily harm, ii) that there is substantial rish that the suspect will cause death or grevious bodily harm if the arrest is delayed or iii) the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong