Case Review: General principles

• Jurisdiction: South Africa
• Author: Managay Reddi
• Pages: 87-88
• Published date: 16 August 2019
• Citation: (2005) 18 SACJ 87
• Date: 16 August 2019

RECENT CASES

General Principles

MANAGAY REDDI

University of KwaZulu-Natal

Participation

In S v Govender 2004 (2) SACR 381 (SCA) the appellants, all policemen,

lodged an appeal in each instance against their convictions of culpable

homicide and the sentence imposed in respect of same, arising from

the death of an arrestee in their custody.

The facts of the case were as follows: The deceased had been arrested

on allegations of a rape and robbery and was taken into custody at a

police station. He was then booked out by the third appellant and taken

to a room, the off‌i ce of the second appellant, in the police station for

questioning. At the time, the off‌i ce of the second appellant was 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 f‌i rst appellant

was also enlisted to interrogate the deceased. According to the appellants’

version of the events, the deceased took ill during the course of the

interrogation, was given water, vomited, struggled to breathe and fell to the

ground knocking his head on the f‌l oor in the process. The deceased then

died despite efforts to revive him. On appeal, the thrust of the appellants’

case was that the deceased had sustained his injuries as a result of an assault

that had been perpetrated upon him by members of the Police Service at

some stage prior to him being booked out into the third appellant’s custody.

This version of the events was rejected as false by both the court a quo and

the appeal court. It was found that the deceased had sustained his injuries

in the off‌i ce of the second appellant whilst in the custody of all four of

the appellants.

It had been submitted on behalf of the appellants that the evidence

did not exclude the possibility that one or more of the appellants may

not have participated in the attack on the deceased. In dismissing this

submission the appeal court held that there is a duty in law, in the

circumstances of this case, on the policemen who were present and who

witnessed but did not participate in the attack on the deceased to put a

87

(2005) 18 SACJ 87

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