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Last Updated: 4 September 2004
IN THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case Number : 254 / 03
In the matter between
STEVEN GOVENDER
First Appellant
JUDE MICHAEL RYAN
Second Appellant
YOGANATHAN PILLAY
Third Appellant
MARK VALOO
Fourth Appellant
and
THE STATE
Respondent
Coram MARAIS, MITHYANE JJA and PONNAN AJA
Date of hearing 24 FEBRUARY
2004
Date of delivery 31 MARCH 2004
SUMMARY
Evaluation of evidence - one must guard against a
tendency to focus too intently upon separate and individual parts of what is
after
all a mosaic of proof.
Culpable homicide - suspect fatally
assaulted whilst in police custody - in law a duty on those policemen who
witnessed the attack
but did not participate in it to put a stop to it - Each
could be convicted on one of three bases - (a) as an actual participant
in the
assault; (b) on the basis of common purpose; and (c) by failing to prevent
the assault when there was a duty to do
so.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
PONNAN AJA
PONNAN AJA
[1] On 21 April 1998 a report was received at the
Mountain Rise Police Station of a robbery and rape allegedly perpetrated in the
Panorama Gardens area of Pietermaritzburg. Shortly after midday and in
consequence of certain information having been received by
them, six policemen
in three vehicles descended on the home of one Nhlanhla David Nyembe
(“the deceased”) in Sobantu.
[2] Whilst still at his
home, according to the arresting officer Sergeant Marian, the initial feigned
ignorance on the part of the
deceased and denial of any wrongdoing by him,
quickly gave way once his rights had been explained to him to be replaced by a
co-operative
attitude. Aside from perspiring and appearing somewhat nervous the
deceased evidenced no visible injuries or signs of ill-health.
Certain items
found at the deceased’s home pursuant to a search conducted with his
consent, as well as the deceased’s
vehicle and his licensed firearm, all
believed to be linked to the commission of the offences in Panorama Gardens,
were seized.
The deceased was arrested and taken into
custody.
[3] Entrusting the deceased to the care of his relief commander,
Sergeant Marian proceeded to Captain Gafoor, the head of the CID,
and
communicated to him news of the deceased’s arrest. Returning to the charge
office, Sergeant Marian processed the deceased
by causing appropriate entries to
be made in the SAP Register’s 13 and 14. An occurrence book entry at 13:25
records that the
deceased had no visible injuries. That much, was confirmed
during their evidence, by both Sergeant Marian and Inspector Ravindra
Maharaj
the charge office commander.
[4] Some five minutes later and prior to the
deceased being lodged in the cells Sergeant Marian handed the deceased to the
third appellant.
Confirmation of that appears in an entry in the occurrence
book at 13:30, which reads: 'Suspect out: B/M David Nyembe 14/299/04/98.
No
injuries. Taken by: Signed: Y Pillay.'
[5] At 14:30, the occurrence book
records: 'Report: Sergeant Y Pillay reports that the suspect B/M David Nyembe
SAP 14/299/04/98
was booked out on further investigation by Sergeant Y Pillay.
The suspect was taken to Sergeant Ryan’s office. En route to
the office
the suspect complained of dizziness and short breath. The ambulance was summoned
to attend to the suspect. Ambulance attendant
Johan Prinsloo of MRI attended and
certified that the suspect was deceased. Cause of death is unknown at this
stage, the suspect
did however bring up a lot of food through his nose and
mouth. At no stage was the suspect assaulted whilst in my custody. Entry
for
station commissioner’s attention. Signed Y Pillay.'
[6] Those
undisputed facts formed the basis of the charge levelled by the state against
each of the appellants in the trial court.
The appellants pleaded not guilty but
were each convicted as charged by the Regional Court, Pietermaritzburg on one
count of culpable
homicide and sentenced to imprisonment for a term of 12 years.
An appeal to the Natal Provincial Division (Jappie et Moleko JJ) met
with
partial success inasmuch as the sentence in each instance was reduced to a term
of imprisonment for a period of 7 years. The
appellants sought and were granted
leave, by the court a quo, to appeal to this Court against in each
instance the conviction as well as the sentence imposed pursuant
thereto.
[7] Logically, the only evidence as to what transpired in the office
of the second appellant emanated from the appellants. The appellants,
all of
whom testified in their defence told a similar story. After having left the
charge office with the deceased the third appellant
proceeded to the office of
the second appellant, which was then occupied by the second and fourth
appellants. Although not a member
of the Murder and Robbery Unit like the other
three, the assistance of the first appellant was also enlisted to interrogate
the deceased.
During the course of the questioning the deceased appeared to move
somewhat uneasily in his chair. He began perspiring heavily and
coughed
intermittently. As the coughing became more frequent and the perspiring more
profuse concern for his well-being grew. The
third appellant enquired whether
the deceased was unwell or under medication. The deceased requested some water
which was brought
to him in a discarded Coke can by the second appellant. The
third appellant removed the deceased’s handcuffs to enable him
to drink
the water. When he complained that he was feeling hot and stood up and
unbuttoned his shirt, the fourth appellant moved
a fan closer to him. The
deceased kicked off his takkies. His quickly deteriorating condition prompted
the third appellant to contact
the Provincial Ambulance Services. As the
coughing worsened the deceased appeared to be choking and had difficulty
swallowing. Food
particles emitted from his mouth as he struggled to breathe.
The deceased then slid off the chair and fell to the ground knocking
his head on
the floor in the process. Whilst the third appellant contacted a second
ambulance service, the first appellant employed
CPR and mouth-to-mouth
resuscitation in an endeavour to revive the deceased. When the paramedics from
the second ambulance service
eventually arrived the deceased was pronounced
dead.
[8] Three forensic pathologists testified during the trial. All three
appeared to be in agreement that the cause of death was blunt
force trauma to
the head, with resultant intra-cranial pathology resulting in suppressed levels
of consciousness. A bout of vomiting
followed and in his concussed state the
deceased inhaled his own vomitus and asphyxiated. Support for that conclusion is
to be found
in the histology report of Prof Dada (exhibit “L”) whose
examination of sections of the deceased’s lungs revealed
congestion as
well as large quantities of foreign organic (mainly vegetable) matter in the
bronchi and alveolar spaces.
[9] Drs Maney and Perumal who jointly
conducted the post-mortem examination on the deceased observed that the deceased
had suffered
'...extensive bruising of the skin and subcutaneous tissue over the
whole body.' Those injuries were consistent, in the opinion of
Dr Maney, with a
sustained beating.
[10] By a process of inferential reasoning, direct
evidence being absent, the trial court concluded that each of the appellants
'...
whose evidence was so improbable as not to be a reasonable possibility'
were indeed guilty. Both the conclusion reached as well as
the reasoning by the
trial court are under attack in this Court.
[11] The thrust of the
appellants’ case in this court is that the deceased must have sustained
his injuries in consequence of
an assault which had been perpetrated upon him by
members of the Police Service at some stage prior to him being entrusted into
the
third appellant’s custody. Support for such a hypothesis, which it was
submitted is a tenable one, is to be found in the evidence
of the state witness
Sipho Mhlongo.
[12] The evidence of Mhlongo, or rather such of it as can
properly be discerned, in a nutshell, is, that he was in the company of
others
including John Mchunu, when he chanced upon an assault being perpetrated by
between two and four policemen on a male person,
who it must immediately be said
could only have been the deceased. He then made a report to one Sgt. Ngubane,
who, according to him,
was prepared to come to the assistance of civilians who
were ill-treated at the police station.
[13] The magistrate found Mhlongo to
be an unreliable witness and without more disregarded his evidence in toto. The
conclusion by
the magistrate that Mhlongo was an unreliable witness is
undoubtedly correct. That much is supported by the evidence on the record.
What
was impermissible, so it was argued on behalf of the appellants, was for the
magistrate to have simply disregarded his evidence
in its entirety as if he had
never testified. Counsel’s stricture is sound. For, the factual hypothesis
that the deceased may
have been assaulted earlier raises starkly the question as
to whether the appellants could properly have been convicted.
[14] It seems
clear that the trial court did not fully appreciate the factual problems that
Mhlongo’s evidence presents, nor
the complex legal difficulties that it
raises. The cardinal issue on appeal therefore is whether Mhlongo’s
evidence that he
witnessed an assault in the passage has sufficient cogency to
give rise to a reasonable possibility that it could be true. If so,
the
appellants are entitled to the benefit thereof.
[15] In order to determine
what I have described as the cardinal issue it is necessary to consider the
evidence of Mhlongo in some
detail and to weigh his claim that he witnessed an
assault in the passage against the evidence of Mchunu and Ngubane, as also
against
the remainder of the factual matrix and the inherent probabilities in
the case.
[16] Mhlongo’s tale grew in the telling. As his evidence
unfolded, the nature and severity of the assaults became more exaggerated
and
the number of assailants increased. Not only did his evidence suffer a myriad of
internal contradictions, but it conflicted in
material respects with that of
Mchunu and Ngubane. Mhlongo’s evidence that he was in the company of
Mchunu when the assaults
were witnessed finds no support in the evidence of the
latter. Mchunu testified that he was seated on a bench outside the building
in
conversation with an insurance consultant when he heard screams emanate from the
first floor. After the screaming had died down
and there was silence, according
to Mchunu, Mhlongo came to him and informed him that a person was being
assaulted in the charge
office. Interestingly, in his statement to the police,
which I must at once record he deviated from during his evidence, Mchunu stated:
‘. . .[Sipho Mhlongo] came to me outside the charge office and
informed me that there was a black male that was assaulted by
the SAPS members
on the first floor. I asked him whether he heard or saw when and who was
assaulting that person or when that person
was assaulted, he replied that he
only heard when that person was screaming / crying on the first
floor.’
[17] Sgt. Ngubane testified that although he did not hear
the screaming himself he was approached by Mhlongo whilst he was busy washing
his vehicle, who reported to him that somebody was screaming upstairs in the
detective’s office. That somebody was allegedly
screaming upstairs,
impacts in a direct and substantial way on Mhlongo’s evidence that an
assault had been perpetrated in the
passage downstairs.
[18] Mhlongo
testified that during the assault witnessed by him the victim was inter alia
kicked in the face and was bleeding from
his ears and nose. Such obvious signs
of apparent ill–treatment could not have passed unnoticed. And yet, the
arresting officer,
the charge office commander, as well as all of the appellants
observed nothing untoward. Indeed, each of the appellants testified
that they
would not have commenced with the interrogation of the deceased if it appeared
to them that he was injured or unwell.
[19] Both Drs Maney and Perumal
recorded in their medico-legal post-mortem reports (exhibits “B” and
“C” respectively)
as one of their chief post-mortem findings:
'Bruising of the anterior abdominal wall with perforation of the intestine and
bruising
of the mesentery.' On the strength of the photographs of the
deceased’s body, he not having been present during the post-mortem
examination, Dr Naidoo opined that the perforation of the intestine had occurred
post-mortem during the dissection of the deceased’s
body.
[20] Dr
Perumal referred to various aspects, in particular the surrounding bruising in
the abdominal area and the fact that the intestinal
injury was a 15 mm diameter
tear and not a clean linear cut, which fortified his view that the injury was in
consequence of blunt
abdominal trauma inflicted ante-mortem. On this aspect, the
trial court preferred, quite correctly in my view, the evidence of Dr
Perumal.
Dr Perumal described the abdominal injury as a severe injury caused by the
application of significant force. The clinical
symptoms of such an injury,
according to Dr Perumal, is that the deceased would have been ' ... bending over
and keeling over and
he probably would have vomited'.
[21] If the underlying
hypothesis of the appellants' version, relying as it does upon the evidence of
Mhlongo, is to be accepted,
then the charge office commander or the appellants
themselves ought to have noticed the evident physical distress of the deceased.
None of them did. Sgt Marian testified that when he handed the deceased over to
the third appellant in the charge office the deceased
was free of any injuries.
Indeed, the occurrence book entry to which the third appellant appended his
signature affords corroboration
of that fact.
[22] Not only did the deceased
walk unaided, which would have been improbable on Dr Perumal’s evidence,
but he on the appellants’
own version, was alert and furnished a coherent
account during the interrogation. No motive suggests itself on the evidence as
to
why others who were not involved in the investigation, would want to assault
the deceased. Much less, for them to immediately thereafter,
turn him over to
the appellants for interrogation.
[23] Mhlongo puts the assault in the
passage in close proximity to the charge office. The notion that the deceased
could have been
subjected to a sustained beating in one of those highly visible
public areas prior to his being removed to the office of the second
appellant,
is, in my view, far-fetched. The risk to a police officer who chooses to
conduct himself/herself in such a fashion is
obvious. A member of the public or
a disapproving colleague could easily chance upon such unlawful conduct.
[24] The deceased evidently made no complaint to the charge office commander
or the appellants, who according to them, were treating
him humanely, of any
assaults having been perpetrated upon him from the time of his arrest until he
came into contact with them.
Acceptance of Mhlongo’s evidence, entails by
implication acceptance of a wholly untenable proposition, namely that various
members of the Mountain Rise Police Station conspired to shield the real
perpetrators at the expense of the appellants.
[25] In S v Hadebe and
Others 1998 (1) SACR 422 (SCA) at 426 e-h, this court citing with approval
from Moshephi and Others v R (1980-1984) LAC 57 at 59F-H
held:
‘The breaking down of a body of evidence into its component parts
is obviously a useful aid to a proper understanding and evaluation
of it. But,
in doing so, one must guard against a tendency to focus too intently upon the
separate and individual part of what is,
after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial may arise when that aspect is
viewed in isolation.
Those doubts may be set at rest when it is evaluated again
together with all the other available evidence. That is not to say that
a broad
and indulgent approach is appropriate when evaluating evidence. Far from it.
There is no substitute for a detailed and
critical examination of each and every
component in a body of evidence. But, once that has been done, it is necessary
to step back
a pace and consider the mosaic as a whole. If that is not done,
one may fail to see the wood for the trees.'
[26] The mosaic as a whole
lends little to the factual foundation upon which the logical deduction must
rest for the proposition that
the deceased had in fact been assaulted in the
passage downstairs. When viewed against the tapestry of all of the evidence, the
claim
by Mhlongo that he witnessed an assault is untenable, and accordingly must
be rejected as false.
[27] The rejection by the trial court of the defence
version as false, cannot be faulted. The trial court concluded, quite correctly,
that the deceased had sustained his injuries in the office of the second
appellant whilst in the custody of all four of the appellants.
The only
explanation tendered by the appellants as to how the deceased could possibly
have sustained those injuries is that he slid
off his chair and fell to the
ground striking his head in that process. That single occurrence, however,
cannot explain, in addition
to the other injuries already alluded to, the:
'(i) "five areas on the scalp that indicate bruising and therefore a point of impact";
(ii) "four parts of the rib cage showed that there was blunt force";
(iii) "focal bruising of the right and left lungs anteriorly and posteriorly";
(iv) "bruising relating to the left psoas muscle and bruising relating to the rectum"; and
(v) "bruising of the subcutaneous tissue of the left and right thigh posteriorly."'
as testified to by Dr Perumal. Dr Naidoo, the
expert witness called on behalf of the appellants conceded that all of the
injuries
suffered by the deceased could not be explained by a single
occurrence.
[28] It was submitted on behalf of the appellants that the
evidence does not exclude the possibility that one or more of the appellants
may
not have participated in the attack on the deceased. That matters not in my
view. There was in law a duty, in the circumstances
of this case, on those
policemen who were present and who witnessed (as indeed each must have) but did
not participate in the attack
on the deceased to put a stop to it. Each of the
appellants could have been convicted on any one of three bases. Firstly, that he
participated in the fatal assault in circumstances where he ought reasonably to
have foreseen the resultant death. Secondly, that
he had associated himself with
the fatal attack although not himself participating therein (that is, on the
basis of common purpose).
And, thirdly, he omitted to prevent the assault and
consequent death in circumstances where there was a duty on him to do so (see
S v Barnes and another 1990 (2) SACR 485 (N) at 490 i-j).
[29] Finally, it was submitted, although somewhat obliquely, that the conviction was ill - founded inasmuch as the requisite mens rea had not been proved. That attack on the conviction is misconceived as it misconstrues the true nature of the enquiry in regard to an essential element of the offence. In S v Naidoo and Others 2003 (1) SACR 347 (SCA) at 357, Marais JA stated, if I may say so, with characteristic lucidity:
‘The crime of culpable homicide, on the other hand (certainly as regards the consequence (death) of the impugned act or omission) postulates an absence of dolus and the presence of culpa. The fact that the crime of culpable homicide may be committed even where the act which causes death is an intentional act of assault should not be allowed to obscure that essential truth. In such a case the perpetrator is not convicted of culpable homicide simply because he or she deliberately assaulted a person as a consequence of which it so happened that the person died. If the perpetrator could not reasonably have foreseen that death might ensue, a conviction of culpable homicide cannot be justified. Aliter if death should have been foreseen as a possible consequence. What this shows is that it is the perpetrator's culpable failure to foresee the possibility of death in cases where an assault has resulted in death and, in cases not involving an assault, that failure coupled with a further culpable failure, namely a failure to do what could and should have been done to prevent the occurrence of death, that is the rationale for the conviction of culpable homicide. Culpa is therefore always present in the crime of culpable homicide. Sometimes it is also associated with dolus (as in intentional assaults resulting in reasonably foreseeable but actually unforeseen death). Sometimes it is not (as in negligent conduct resulting in reasonably foreseeable death). For a penetrating and instructive analysis of these matters see Professor Roger Whiting's article "Negligence, Fault and Criminal Liability" in (1991) 108 SALJ 431.'
On a simple application of those principles to the facts here present, it is patent that each of the appellants was correctly convicted. Given the sustained nature of the attack, each of them ought reasonably to have foreseen the death of the deceased.
[30] 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.
No misdirection has been alluded
to, nor can it be said that the sentence
induces a sense of shock.
[31] It has been submitted on behalf of the
appellants that the sentence is out of proportion to the gravity of the offence
and that
having regard to the personal circumstances of each of the appellants a
portion of the sentence imposed by the court a quo should
have been suspended.
It is true that each of the appellants has an unblemished record and that each
was a useful member of society
in gainful employment at the relevant time. Those
circumstances, however, have to be weighed against the nature and severity of
the
offence and the requirements of society. Notwithstanding the clear
mitigating factors present, the seriousness of the offence makes
it necessary to
send out a clear message that the resort by policemen to violence of the kind
encountered in this case cannot be
countenanced.
[32] The natural
indignation that the community would feel at conduct of this kind warrants
recognition in the determination of an
appropriate sentence. It bears noting
that the version of the appellants was not only false but plainly contrived. In
advancing a
contrived version each placed fealty to his colleagues above his
duties as a police officer (see S v Phallo and Others 1999 (2) SACR
558 (SCA) at
570 a-b). There appears to me to be no warrant for interfering with the sentence
imposed by the court a quo. It follows, in my view, that the appeal in
respect of sentence must also fail.
[33] In the result the appeal is
dismissed.
_________________________
PONNAN AJA
CONCURRING:
MARAIS JA
MTHIYANE JA
SAFLII:
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