Mkhize and Others v The State

The five appellants were members of a SAPS Special Task Team dealing with armed robberies and car hijackings in Jozini and Esikhawini. On 10 July 2009, the deceased, Bongani Cebekhulu, who was suspected of involvement in such crimes, died while being interrogated at the detective offices in Esikhawini. Evidence showed that he had been free of injuries while in police custody prior to the interrogation. Shortly after being booked out for questioning by the first appellant, he was found dead. All five appellants were present in the detective office. Forensic pathology evidence revealed extensive blunt force injuries to the neck, head, chest and spine, inconsistent with a fall from a chair and incompatible with injuries inflicted days earlier. The appellants did not testify at trial and no alternative version was put to key State witnesses. They were convicted of culpable homicide in the regional court on the basis of common purpose, a conviction confirmed by the High Court, which also increased their sentences. They appealed to the Supreme Court of Appeal.

The appeal against both conviction and sentence was dismissed. The sentence of seven years’ imprisonment for each appellant, with two years suspended for five years, resulting in an effective sentence of five years’ imprisonment, was confirmed.

The case is significant for reinforcing police accountability in South African criminal law, particularly the principle that police officers who witness assaults on detainees have a legal duty to intervene. It affirms that common purpose can be established through omission where such a duty exists and clarifies the evidentiary consequences of an accused’s failure to testify or to challenge incriminating evidence in cross-examination.