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

1 See Zeffert et al The South African Law of Evidence 2 ed at 100.

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

2 Ibid.

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 (see S v Boesak 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