S v Phallo and Others

• Jurisdiction: South Africa
• Judge: Olivier JA
• Judgment Date: 19 November 1999
• Citation: 1999 (2) SACR 558 (SCA)
• Hearing Date: 01 November 1999
• Counsel: E Jordaan SC for the first appellant P Smith for the State
• Court: Supreme Court of Appeal

Olivier JA:

[1] On 3 July 1995, 17 accused were members of the police force of the North West Province at E Mmabatho. Some were attached to the murder and robbery squad, others to the so-called tracing unit. Some had achieved the rank of sergeant, some were constables. At the time Samuel Magano was employed at the Molopo Sun Hotel in the slot-machine section. At about 07:30 of that morning, he was detained by the police on suspicion of having participated in a robbery during the night at the F Molopo Sun. From the moment of his detention he was in the company of all of the accused for purposes of interrogation and the pointing out of, inter alia, the place in the veld where he had allegedly hidden some of the stolen money. At approximately 16:00 that afternoon Magano was dead.

[2] The accused were arraigned on a charge of having murdered Magano. They denied guilt. The trial G was heard by Friedman JP and assessors. The Court found that the deceased met an unnatural death by anoxia, probably as a result of suffocation, at the hands of one or more of the accused, while in their custody. Because it could not be established who actually committed the murder, and in the absence of a request by the State for a conviction on the basis of common purpose to murder H the deceased, the accused were convicted of being accessories after the fact to the murder. Reliance was placed for this legal conclusion on R v Gani and Others 1957 (2) SA 212 (A) and S v Jonathan en Andere 1987 (1) SA 633 (A). Ten years' imprisonment was imposed on each of those accused who were sergeants at the time; each of the constables was given eight years.

[3] The accused appealed against their convictions and sentences to the Full Bench of the High I Court, with leave of this Court. The Full Bench dismissed the appeal against the convictions, reduced the sentences of the sergeants to eight years, and dismissed the appeals by the constables against their sentences of eight years. Leave was granted by this Court to the appellants J to prosecute a further appeal against their convictions and sentences.

Olivier JA

[4] It was common cause that on the morning of his arrest the deceased was hale and hearty and A that from that moment up to the time of his death he was never in contact with anyone other than the appellants.

[5] The main factual dispute at the trial related to the cause of the deceased's death. Again the State's version that the deceased met his death at the hands of one or more of the accused, he B being forcefully suffocated by them, the appellants' version was that he died of natural causes. In a nutshell, their version is that the deceased was taken by them in a police kombi to a place in the veld where, so he said, he had buried his share of the stolen cash. The kombi stopped at the place indicated by him; he stepped out of the kombi, walked a few paces, collapsed, and rolled over. Despite the application of first aid procedures by appellants 1 and 3, he died on the spot. The State, C on the basis of expert medical evidence emerging from a post-mortem examination by two experts, set out to refute the appellants' version. What is more, the State strongly disputed that the deceased had died at the place pointed out by the appellants. He was killed, so it was alleged, at some other place while in the custody of the appellants and conveyed by them to the scene where D his body was later shown to a senior police officer, Colonel Segone.

[6] The post-mortem was conducted by Professor Fosseus and Dr Saayman. They are both expert forensic pathologists. They were aware of the importance of the post-mortem and were looking for any natural cause of death, including asthma, epilepsy and cardiac arrest. They found no evidence E of any. Dr Saayman summarised their findings as follows:

'(T)he post-mortem findings are indicative of probable terminal acute anoxia, the precise cause of which was not ascertained at the autopsy. However, signs of blunt force application to the neck were identified. Strangulation can however not be definitely diagnosed and other causes of acute anoxia, including suffocation, should be considered. No evidence of underlying or existing natural disease was identified at post-mortem examination to which sudden F death may be ascribed.'

Professor Fosseus agreed, testifying that the deceased's death was due 'definitely (to) unnatural causes'.

[7] Supporting the evidence of Professor Fosseus and Dr Saayman, is that of Dr Manyaapelo, the deceased's doctor. The deceased had been his patient between June 1994 and June 1995. During G that period the deceased had not displayed any symptoms of cardiovascular disease, asthma or epilepsy, all of which Professor Isaacson, the medical expert called by the appellants, had suggested could have caused the death of the deceased. Dr Manyaapelo's view was that the deceased had not suffered from any illness which might have constituted the possible alternative H causes of death suggested by Professor Isaacson, or that could have accounted for the death as described by the appellants.

[8] Professor Isaacson is a specialist anatomical pathologist and not a forensic pathologist as are Professor Fosseus and Dr Saayman. He conceded that Fosseus is more expert than he is in I forensic pathology, having performed some 12-13 thousand post-mortems in the period of two and a half years when he had performed 20-30. Neither, he conceded, did he perform a post-mortem on the deceased, nor was he present at the post-mortem by Fosseus and Saayman. Isaacson, in fact, simply accepted the appellants' version of the deceased's death, and then tried to establish J

Olivier JA

A that the death might have been due to a natural cause. He suggested alternative causes of death, and criticised Fosseus and Saayman for failing to do a complete autopsy of the heart and lungs.

The alternative causes of death that Isaacson suggested were countered one by one by Fosseus B and Saayman. His final suggestion, which included his criticism that a thorough autopsy had not been carried out, was that the death could have been caused by acute myocarditis, and that this condition would have been revealed only by a microscopic examination. Because Fosseus and Saayman had failed to perform this examination, counsel for the appellants contended, it had not been established beyond reasonable doubt that the death was unnatural and not due to acute C myocarditis.

[9] The testimony relied on by counsel for the appellants reads as follows:

'Court: Would a histological examination have made any difference there? - Certainly, in my experience, if you do not see something with a naked eye, then it is unlikely, in terms of the vessel walls, it is unlikely that you are going to D pick up, of course the microscope shows you more detail but the common disease that we are talking about here, the important one, is so-called arthrosclerosis. That is a hardening and a thickening of the walls of the vessel. If you do not see any signs of that macroscopically, it is most unlikely that you are going to find any evidence of it unless it is of microscopic nature only, on histological examination. There are other conditions in the vessels of the heart, E elsewhere in the body as well such as inflammatory conditions which maybe on a microscopic level, may be visible on a microscopic level which are not macroscopically visible. We speak of rare conditions here and, in most instances, they would also leave some form of macroscopic defect or abnormality. But I cannot exclude categorically that such changes could have been present.

F Mr Smith (counsel for the State): But most probably if that had been the case, you would find macroscopic evidence of that. - You would probably have found macroscopic evidence of it and I would be inclined to say that there would be aforegoing clinical manifestations of such diseases, well it would be unusual for this to result in a sudden, unexpected death.'

G [10] On the basis of this evidence it was argued that the State had, at best, proved its case on a balance of probabilities but not beyond reasonable doubt. Where does one draw a line between proof beyond reasonable doubt and proof on a balance of probabilities? In our law, the classic decision is that of Malan JA in R v Mlambo 1957 (4) SA 727 (A). The learned Judge deals, at 737F - H H, with an argument (popular...