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[2019] ZASCA 56
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Mkhize and Others v S (390/18) [2019] ZASCA 56 (1 April 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 390/18
In
the matter between:
NJABULO
MKHIZE FIRST
APPELLANT
MBONGENI INNOCENT
DLAMINI SECOND
APPELLANT
JABULANI ERICK
ZULU THIRD
APPELLANT
MUZI PETROS
MBUYAZA FOURTH
APPELLANT
PSYCHOLOGY
THUTHUKANI GUMEDE FIFTH
APPELLANT
and
THE
STATE RESPONDENT
Neutral
Citation:
Mkhize
v S
(390/18)
[2019]
ZASCA 56
(1 April 2019)
Coram:
Majiedt, Swain and Mathopo JJA
Heard:
25 March 2019
Delivered:
1 April 2019
Summary:
Criminal law –
deceased assaulted whilst being interrogated by policemen –
police officers present in the room –
not disputed –
appellants not testifying – failure to put version to state
witnesses – prima facie case of State
strengthened – duty
of cross examiner – explained – duty in law of police
officers present and who witnessed
but did not participate in the
assault to put a stop to it – common purpose established –
Sentence – correctional
supervision inappropriate – high
court altered the sentence – no misdirection – sentence
of 7 years of which
2 years suspended for 5 years – confirmed
on appeal.
ORDER
On
appeal from
: The
KwaZulu-Natal High Court, Pietermaritzburg (Lopes and Olsen JJ
concurring sitting as court of appeal):
The appeal is dismissed.
JUDGMENT
Mathopo JA (Majiedt
and Swain JJA concurring):
[1]
This appeal arises from a tragic incident which occurred on 10 July
2009 at the offices of the detective branch at Esikhawini,
when
Bongani Cebekhulu (the deceased) who was suspected of being in
involved in car hijackings and armed robberies in the area
of Jozini
and Esikhawini, died whilst being interrogated by the five
appellants. The appellants were at that time members of the
Special
Task Team established to deal with a spate of armed robberies and car
hijackings in the area of Jozini and Esikhawini.
[2]
As a result of the death of the deceased, the appellants were charged
with murder in the Esikhawini Regional Court. After a
long trial they
were convicted of culpable homicide. The regional magistrate reasoned
that, because the appellants were present
at the offices during the
interrogation, they acted in common purpose and that a reasonable
person would have taken steps to guard
against the possibility of
death and the appellants failed to take such steps. She sentenced the
appellants to three years correctional
supervision in terms of
s 271(1)(
h
)
of the
Criminal Procedure Act 51 of 1977
. In addition, they were
sentenced to five years’ imprisonment which was wholly
suspended for a period of four years on condition
that they were not
convicted of any offence involving violence, committed during the
period of suspension.
[3]
The appellants then appealed to the KwaZulu-Natal High Court,
Pietermaritzburg, against their convictions only. The high court,
after reading the record, formed the prima facie view that the
sentence imposed by the trial court was too lenient. Notice was
then
given to the appellants of a possible increase of the sentence. The
high court confirmed the convictions and set aside the
sentences
imposed by the regional magistrate and replaced it with sentences of
seven years’ imprisonment of which two years
was suspended for
five years. The effective sentences imposed was thus five years’
direct imprisonment. This appeal is before
us with the special leave
of this court.
[4]
The brief background facts are as follows. The State’s case was
that the deceased met his death at the hands of one or
more of the
appellants, whilst in the company of one or more of the appellants.
The evidence led in support of the State case was
that the appellants
acted in common purpose. The State’s version was that after the
deceased was arrested by Constable Nkwanyana
in the area of Jozini on
8 July 2009 on suspicions that he was involved in car hijackings
committed in the district of Esikhawini,
he was temporarily detained
at Jozini Police Station. Later the same day he was conveyed by
Constable Nyawo to the police cells
in Ubombo where he was handed
over to Constable Tembe, free of any injuries. On 9 July 2009 he was
handed over to Constable Mbuyaza,
the fourth appellant, free of any
injuries.
[5]
The same day the first appellant, Warrant Officer Mkhize, handed over
the deceased to Constable Dlamini of SAPS Esikhawini where
he was
detained in the police cells. On 10 July 2009 the first appellant
booked the deceased out for questioning and took him to
the detective
offices. The officer on duty was Lieutenant T G Mkumane. The deceased
was free of any injuries at that time. It is
common cause that a
short while later Captain Mncwango reported to Captain Hadebe that
the deceased had died in the detective offices.
Captain Hadebe and
Captain Mncwango then reported this to the station commander,
Lieutenant Colonel Mazibuko. The three of them
went to the detective
offices where the deceased had died. Captain Hadebe testified on
behalf of the State that ‘We went
inside office number 15. We
found the members who are here (referring to the appellants). They
reported to us what had happened.
The person in charge of those
members was Warrant Officer Mkhize (the first appellant)’. Upon
enquiry as to what happened
Mkhize explained that he was busy with
the deceased when Constable Dlamini, the second appellant enquired
from the deceased if
he was aware that his friend with whom he had
been committing crimes in Jozini, had died. According to Mkhize when
the deceased
heard this, he fell off the chair and died. . Hadebe was
then asked, ‘Now you said something about in office 15 you
found
members. Which members you found there?’ To which he
replied that it was the five appellants that he found there. He was
then asked ‘And when accused 1 reported to you what had
happened where was the other four?’ and replied as follows
‘When we entered as we were three, three of us were as
officers, they moved aside and stood in the passage which looks like
a corridor.’
[6]
Two forensic pathologists testified during the trial. Dr Kalapdeo,
who performed the post mortem, found that there was bruising
on the
sides of the head, bruising on the bilateral cheek areas which means
on the face area, bruising on the side of the neck,
laceration to the
chin, bruising over the chest centrally and a neck fracture. He
further stated that the thoracic cage also had
some positive findings
which he described as bruising subcutaneously over the pectoral
muscles which are the big muscles in the
chest area and the left sub
costal area, the area just below the heart. On examination of the
spinal column it showed a fractured
neck. Dr Kalapdeo concluded that
the cause of death was ‘blunt force trauma to the neck’.
He was of the view that blunt
force trauma could have arisen as a
result of pressure on the neck by open hands or possibly a fist to
the neck or a plank or worst
still somebody falling over the neck
through an object. He opined that the trauma must have been quite
severe to have caused a
fracture of the trachea and hyoid and the
neck, with the result that respiration was compromised. According to
him, with such injuries,
the deceased would have died immediately or
at least within three to five minutes. During his cross-examination
it was suggested
that the deceased could have sustained injuries
whilst at Jozini or Ubombo Police Station on 8 and 9 July. He
disputed this proposition
and contended that if such injuries had
been inflicted on the deceased whilst at the said police station he
could not have lived
until 10 July 2009. He also disputed the
hypothesis that the above injuries could have occurred as a result of
the deceased falling
off the chair.
[7]
Dr Naidoo, a senior specialist forensic pathologist, received the
docket for his review and opinion. He supported Dr Kalapdeo’s
findings and confirmed that the force required to cause the injuries
described in the post mortem report cannot be accounted for,
from
falling from a chair as implausibly suggested by counsel for the
appellant. Like his colleague Dr Kalapdeo he opined that
a day or two
survival period is not compatible with the nature of the injuries
sustained by the deceased. All these experts disputed
proposition
that the cause of death were injuries sustained while the deceased
was incarcerated at the police cells in Jozini and
Ubombo. The
appellants declined to testify.
[8] What transpired at
the offices of the detective branch lies at the heart of this appeal.
As there was no direct evidence implicating
the appellants to the
crime, the trial court relied on circumstantial evidence to convict
the appellants. It has been said:
‘
Circumstantial
evidence is popularly supposed by laymen to be less cogent than
direct evidence. This is, of course, not true as
a general
proposition. [In some cases], as the courts have pointed out,
circumstantial evidence may be the more convincing form
of evidence.
Circumstantial identification by a fingerprint will, for instance,
tend to be more reliable than the direct evidence
of a witness who
identifies the accused as the person he or she saw. But obviously
there are cases in which the inferences will
be less compelling and
direct evidence more trustworthy. It is therefore impossible to lay
down any general rule in this regard.
All one can do is to keep in
mind the different sources of potential error that are presented by
the two forms of evidence and
attempt, as far as this is possible, to
evaluate and guard against the dangers they raise.’
[1]
[9]
In convicting the appellants, the trial court accepted the State’s
version and found that the appellants’ guilt
was proved beyond
reasonable doubt. The court reasoned that the appellants acted in
common purpose because they were present at
the offices and took part
in the interrogation of the deceased or were part of a team that was
interrogating the deceased.
[10]
In dismissing the appeal, the high court concluded that when Captain
Hadebe went inside the detective offices, all the five
appellants
were present and ‘they reported to us what had happened’.
It concluded that it was not disputed that the
appellants did not
hear what was said by the first appellant and if that was their
defence, it would have been put to Captain Hadebe.
It held that the
evidence that all of the appellants were inside the room and
collectively gave an explanation to Captain Hadebe
as to what had
happened, was never challenged or disputed.
[11]
The high court reasoned further that the appellants’ silence
was maintained out of the misguided belief that the failure
to
identify the correct perpetrator would exonerate him and, ultimately,
all of them. To allow them to do so would be to grant
a licence to
police officers to assault accused persons at will. As long as there
was more than one of them present when a suspect
was assaulted they
would be safe in the knowledge that if the suspect was killed and
they stuck together in their version that
the suspect have died for
some other reason than being assaulted, they would escape conviction.
[12]
Relying on the judgment of this court in
S
v Govender
2004 (2)
SACR 381
(SCA), the high court held that there was a duty in law on
those policemen who were present and who witnessed, but did not
participate
in the attack on the deceased, to put a stop to it.
[13]
Before us it was contended that, absent any direct evidence linking
the appellants to the death of the deceased, the trial
court and the
court a quo erred in drawing the inference of common purpose. It was
further submitted that, because there was no
evidence that the
appellants could have had an opportunity to prevent the assault,
their conduct could not be said to have caused
or contributed to the
death of the deceased. The submission made in this regard is that the
State failed to establish that the
other appellants, save for the
first appellant, were in the room and aware of the assault.
[14]
As to the failure to dispute or put certain assertions to Captain
Hadebe, it was argued that because no witness testified as
to who was
present or who assaulted the deceased, putting a version to Captain
Hadebe in cross-examination would have been an exercise
in futility.
Counsel for the appellants submitted that it was not the duty of the
appellants to testify to supplement a deficient
State case. In
support of his argument counsel for the appellants relied on
S
v Scott-Crossley
2008 (1) SACR 223
(SCA). Reliance on this case is misplaced. In
Scott-Crossley
,
this court cited a passage in
Phipson,
Evidence
(7ed at
460) to the effect that, as a rule, a party should put to witnesses
in turn ‘so much of his own case as concerns that
particular
witness (
S v
Scott-Crossley
,
supra para 26). In this instance no version was put to any of the
State witnesses. It was particularly important to put a version
to at
least Captain Hadebe, given the nature of his evidence. I will later
in the judgment deal with the failure of the cross-examiner
to put a
version to a witness.
[15]
The evidence of Captain Hadebe was clear and straightforward. but the
appellants submitted that he initially made a general
statement, but
immediately afterwards clarified it by saying that the first
appellant made the report as to what happened and that
the other
appellants were in the passage when he made the report. I
disagree with this submission because the nub of his
evidence is that
when the first appellant reported to them what had happened, all the
appellants were present in the room’.
This important piece of
evidence squarely placed the appellants at the scene. During
cross-examination it was not put to the Captain
Hadebe that anyone of
the appellants were not present during the interrogation. It was also
not put during the trial that the appellants
were not present in the
room. Cross-examination of Captain Hadebe was focussed on the
injuries sustained by the deceased and the
cause of death. At no
stage was it ever put to Captain Hadebe that the other appellants
would disprove his evidence about what
Mkhize told him in their
presence. It is the duty of the cross-examiner to put all contested
points to the witnesses in cross-examination.
A cross-examiner who
fails to do so runs the risk of having his witness criticised of
recent fabrication when that witness later
testifies. Leaving
contradictions, improbabilities or lies undisputed is dangerous.
Failure to do so would in appropriate cases
lead to an adverse
inference being drawn from the failure to cross-examine on the
contested issues.
[16] In
President of
the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) para 61 it was stated:
‘
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is
essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
and has been adopted and consistently followed by our courts.’
[17] It was further held
para 63:
‘
The
precise nature of the imputation should be made clear to the witness
so that it can be met and destroyed, particularly where
the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only that
the evidence
is to be challenged but also how it is to be challenged. This is so
because the witness must be given an opportunity
to deny the
challenge, to call corroborative evidence, to qualify the evidence
given by the witness or others and to explain contradictions
on which
reliance is to be placed. (At para 63)
and
to explain contradictions on which reliance is to be placed
.’
(Emphasis added.)
In
the present matter the appellants did not do so. Instead they sought
refuge in their silence and declined to join issue with
the state
witnesses. The argument of the appellants loses sight of the fact
that cross-examination cannot be used to prove anything,
it can only
establish inconsistencies or weaknesses in the case, but it cannot
establish evidence. Assertions or questions put
by counsel during
cross-examination remains so and is not evidence.
[18]
It is untenable for counsel for the appellants to now suggest that
Captain Hadebe made a general statement which he immediately
clarified that the first appellant made a report to them as to what
had happened when the other appellants were in the passage
and
presumably not within earshot. Even if it may be accepted on behalf
of the appellants that Hadebe may have contradicted himself,
a view
which I do not share, once a view was formed that what Hadebe said
was a contradiction, it was incumbent upon the cross-examiner
to
afford the witness Hadebe an opportunity to clarify the alleged
perceived contradiction instead of leaving it hanging in the
air.
[19]
It is not open to the appellants to rely on the perceived
contradiction without first putting it to Hadebe. In my view the
precise nature of the imputation that the appellants (save for the
first appellant) denied explaining to Hadebe what had happened
should
have been made clearer to him so that he could deal with it. The
cross-examination of Hadebe was cursory and unhelpful.
He did not
state that the explanation given to him by the appellants when they
were in the room differed from the explanation given
by the first
appellant. His clear statement that all of the appellants explained
what had happened was not contested in cross-examination
and the
trial court was accordingly entitled to accept it.
[20]
A prima facie case was presented against the appellants which, in the
absence of any contradictory evidence, became conclusive.
It is trite
that an accused’s failure to testify can be used as a factor
against him only when at the end of the case for
the State, the State
has prima facie discharged the onus that rests on it. It cannot be
used to supply a deficiency in the State
case, that is to say where
there is no evidence on which a reasonable man could convict.
[2]
In
the present case in the absence of any contradictory evidence, the
State was entitled to assume that the undisputed evidence
was
correct. This evidence prima facie established that all of the
appellants were present in the room when the deceased was assaulted
and died. It lay exclusively within the power of the appellants to
show what the true facts were and their failure to do so, entitles
the court to infer that the truth would not have supported their
case. The failure of the appellants to testify and rebut the state
case strengthened the prima facie case to one beyond reasonable
doubt. I say this because it was within their powers to adduce
evidence as to the true state of affairs by disputing what Hadebe
said about them. They did not do so. Their failure to testify,
was in
the circumstances of this case, rightly used as a factor against them
(s
ee
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at para 24). At the very least, the prosecution
proved suspicious circumstances, namely the presence of all of the
appellants
in the room with the body of the deceased shortly after
his death, which the appellants if innocent, could reasonably be
expected
to answer or explain.
[21]
When the totality of the evidence is properly analysed, the
suggestion that the deceased sustained injuries shortly after his
arrest and detention at Jozini and Ubombo police cells is
implausible. Equally improbable is the assertion made during
cross-examination
that the injuries, which ultimately led to his
death, could have been caused when he fell off the chair. The medical
evidence conclusively
establishes that this was a false explanation.
This hypothesis was rightly rejected by both courts as lacking any
substance. The
only reasonable inference to draw is that the deceased
was assaulted by the appellants whilst being interrogated at their
offices.
If they were not complicit, one would have expected them to
deny their involvement at that time or clarified their position by
way of viva voce evidence at the trial. Instead, all the appellants
adopted an attitude of shielding one another or the real perpetrator
at the expense of their constitutional duties as police officers.
[22]
In my view it is inconceivable that any of them could have been
unaware what happened to the deceased. There was a duty on
the police
officers who did not participate in the interrogation and who may
have witnessed the attack to put a stop to it and
tell Captain Hadebe
what had happened. If they did not participate in the assault they
omitted to prevent the assault and consequent
death in the
circumstances where there was a duty on them to do so. What the
appellants lost sight of is that as police officers
and by virtue of
their offices they owe society the duty to report a crime if it is
committed in their presence. Their silence
made it impossible on the
evidence to identify the actual perpetrator/s of the death of the
deceased.
[23]
The next enquiry is to determine whether the State succeeded in
proving that the appellants acted in common purpose. Having
concluded
that all of the appellants were present in the room when the deceased
was assaulted and died, the issue that arises is
that it is not
possible on the evidence to identify a principal perpetrator of the
death of the deceased, nor does the evidence
exclude anyone of the
appellants as the principal perpetrator. Accordingly, the
only basis upon which the appellants
may be convicted either of
murder or culpable homicide is if a common purpose is proved between
them, leaving aside the possibility
of a conviction for being an
accessory after the fact to either of these offences. If all of the
requirements for a common purpose
are established namely presence at
the scene, awareness of the assault on the victim by somebody else,
an intention to make common
cause with the person or persons
committing assault and the performance of some act of association,
each perpetrators culpability
(intention or negligence) has to be
determined independently in order to convict him of either murder or
culpable homicide, as
the case may be. Consequently, although the
evidence establishes that the appellants had a common purpose to
commit the crime of
assault and that in the course of executing this
common purpose the deceased was killed, and the one perpetrators act
of causing
the death can be attributed to the other members of the
common purpose, the intention or negligence of the one perpetrator
cannot
be attributed to the others. Counsel for the appellants
submitted that both courts erred in applying the doctrine of common
purpose
to convict the appellants of culpable homicide. First, it was
contended on behalf of the appellants that the State failed to prove
common purpose because there was no evidence that any of the
appellants were present or aware of the assault on the deceased,
other than the first appellant who admitted to Captain Hadebe that he
was present. Second, no evidence was led that the appellants
would
have had either the time or the opportunity to prevent the assault or
even try to prevent it and thus the alleged omission
to do so cannot
be said to be negligent or that it caused or contributed to the death
of the deceased. It was also contended that
the high court wrongly
relied on the dicta in
S
v Govender
.
[24]
The fallacy in these submissions is that there is nothing on the
record to suggest that the legal representatives who represented
the
appellants at the trial, raised the defence that the appellants were
not present when the deceased was assaulted, or that they
disassociated themselves from the conduct of others and disavowed
what Mkhize told Hadebe in their presence. The medical evidence
is of
vital importance in determining the requisite intention or negligence
in respect of the death of the deceased on the part
of each of the
appellants. In my view the impression created by the conduct of the
appellants’ legal representatives at the
trial that all of them
were present in the room during the assault, is strengthened by their
failure to testify. The medical evidence
indicates that all of the
injuries sustained by the deceased could not be explained by a single
occurrence. The medical evidence
establishes that the deceased was
subjected to a severe assault and the cause of death was a blunt
trauma to the neck of the deceased
of sufficient strength to fracture
the spinal column. To convict the appellants of murder on the basis
of a common purpose it would
have to be proved that each of them
subjectively foresaw the possibility of the death of the deceased and
reconciled themselves
to this possibility. The evidence does not
establish this. However, to convict the appellants of culpable
homicide on the basis
of a common purpose, it would only have to be
proved that a reasonable person in the position of any of the
appellants, witnessing
such an assault upon the deceased, would have
foreseen the possibility of death resulting and have taken steps to
guard against
such an occurrence, by intervening and stopping the
assault. The injuries indicate that a reasonable person in the
position of
the appellants witnessing such an assault upon the
deceased, would have foreseen the possibility of death resulting and
have taken
steps to guard against such an occurrence. In my view the
appellants omitted to prevent the assault and consequent death in
circumstances
where there was a duty on them to do so. When regard is
had to the severity of the injuries and assault, negligence of each
appellant
is established.
[25]
I am thus satisfied that on the undisputed evidence the requirements
of common purpose was satisfied because all the appellants
were
present inside the room when the deceased was assaulted and died. All
the appellants were aware of the assault on the deceased
and intended
to make common cause with the conduct of the perpetrators. It follows
that the guilt of the appellants was proved
beyond reasonable doubt.
The appeal against convictions must fail.
[26]
As to sentence it is trite that this court will not interfere with
the sentence imposed by the court a quo unless it is satisfied
that
the sentence has been vitiated by a material misdirection or is
disturbingly inappropriate. Counsel for the appellants argued
that
the high court misdirected itself in a number of instances. First it
ignored the fact that the appellants were first offenders.
Second
that they have all served a major part of their correctional
supervision sentence. Third that the families of the deceased
supported the sentences imposed by the trial court. This argument has
no merit. In my view when the aggravating circumstances of
this case
are taken into account, their personal circumstances pale into
insignificance. No remorse was shown by the appellants
and this is
evidenced by their complicit silence in explaining how the deceased
lost his life. The post mortem report indicate
that the deceased must
have sustained a severe and prolonged form of assault. The sentences
imposed by the trial court were in
my view very light. The high court
rightly concluded that the sentences do not accord with the
principles of natural justice and
proper punishment.
[27]
What should be borne in mind is that as police officers the
appellants have a duty to protect the public. The deceased deserved
to be treated with dignity. He had the right not to be assaulted and
unlawfully subjected to interrogation which ultimately led
to his
death. After comparing the facts of this case with that of
Govender
,
the high court correctly formed the view that an appropriate sentence
for each of the appellants would be seven years imprisonment,
of
which two years was suspended for a period of five years because the
appellants had undergone some level of correctional supervision.
Consequently the sentence was reduced to five years imprisonment.
Given the seriousness of the offence it was necessary to send
out a
clear message that society cannot tolerate lawlessness and violence
on the part of the police officers. Absent any misdirection
there is
no basis for interfering with the sentence. The appeal in respect of
sentence must also fail.
[28] In the result the
appeal is dismissed.
________________________
R S Mathopo
Judge
of Appeal
APPEARANCES:
For
appellant: J H du Plessis
Instructed
by:
Van
der Westhuizen & Marshall Attorneys, Empangeni
Honey
Attorneys, Bloemfontein
For
respondent: N B Sewparsad
Instructed
by:
The
Director of Public Prosecutions, Pietermaritzburg
The
Supreme Court of Appeal of South Africa
[1]
See Zeffert et al
The South
African Law of Evidence
2
ed at 100.
[2]
Ibid
.