S v Chenjeya & Ors 1977 (2) RLR 179 (A)

Headnote
Prison warders are expected to behave in a fair and proper manner towards prisoners in
their charge. If they abuse that authority which is vested in them and behave improperly,
then they must be left in no doubt that the courts will deal very severely with them. Their
position in this regard is somewhat similar to that of policemen who abuse their position
and assault people in their custody.

The deceased had been a hard labour prisoner serving a prison sentence. After apparently
performing hard labour on a prison farm satisfactorily, he had, the following day,
complained to the third appellant, who was the senior prison warder in charge of the
gang, that he was feeling unwell. The third appellant thereafter put him onto light work
for some time. Thereafter, he was given harder work in the fields and when he was seen
to be lagging behind the other prisoners, the first and second appellants, who were prison
warders under the control of the first appellant, commenced to beat the deceased with
sticks. He was beaten severely and on a number of occasions. He later collapsed and died
night. The post-mortem revealed that a condition of broncho-pneumonia and multiple
injuries both contributed to the deceased's death. Following convictions against all three
appellants for culpable homicide, it was, on appeal-

Held that in the circumstances which the appellants ought to have realised existed at the
time they assaulted the deceased, the possibility of death was reasonably foreseeable. It
could not have been thought by a reasonable person in the circumstances that after the
initial few blows the deceased would still be malingering and pretending to be sick. All
the probabilities indicate that after the first few blows, he would have abandoned the
pretence of illness and kept up with the others and done his work normally as he had
apparently done on the previous day.

Held, further, that as far as the third appellant was concerned, he had a clear duty in his
position of authority over the other warders and in his position of being obliged to protect
prisoners from ill treatment, to intervene and put a stop to assaults. The only reasonable
inference from his failure to do so is that he was making common cause with his co-
accused who actually inflicted the injuries upon the deceased.

A. P. de Bourbon, for the appellants. It is beyond argument that none of the appellants
knew that the deceased was suffering from broncho-pneumonia. Indeed, in view of the
fact that the deceased had been examined so recently, and was able to do a full day's work
the day before, it would not have been reasonable for the appellants to suspect that the
deceased might be suffering from such a disease. The law requires that the State prove on
a charge of this nature that a reasonable person, in the position of the accused, would
have appreciated that the actions of the accused involved some risk to the life of the
deceased. See R v John 1969 (2) RLR 23. Despite the statement at page 37 of that report,
to the effect that “eggshell skulls weak hearts and other human ailments” are well within
the range of ordinary human experience, this particular ailment in a man of the age of the
deceased does not fall within that ordinary experience. The ordinary reasonable man
would not guard against the presence of this particular ailment. It is true that to some
extent the law requires that a person must take his victim as he finds him, but this
generalisation cannot be taken too far. In a case such as the present where the issue is
basically one of foreseeability, too high a knowledge or too great experience cannot be
attributed to the ordinary reasonable man. There can be no doubt that the appellants did
not foresee the death, and it cannot be said, on the other hand, that a reasonable man
would have foreseen that.

Dealing specifically with the third appellant, it is true, as pointed out by the learned
Magistrate, that certain persons can be convicted as a result of an omission. However, the
third appellant does not fall within that class. The case of Mtati v. Minister of Justice,
1958 (1) SA 221 is not in fact authority for the proposition set out by the Magistrate.
Likewise the other cases set out at page 104 of Burchell & Hunt are clearly
distinguishable on the facts. It is by no means suggested that custodians cannot be
convicted as a result of an omission. What is suggested is that on the facts before this
Honourable Court, a conviction of the third appellant was not in order. In any event, the
submissions made above in relation to the question of foreseeability apply with even
greater weight when confined to the case of the third appellant. It must be borne in mind
that it was not part of the State’s case that the liability of the third appellant was based on
an omission. The summons clearly sets out the allegation of a commission.

P. C. Lloyd, for the respondent. As regards the third appellant, the learned authors
Burchell and Hunt (Vol. I) at page 104 suggestion that a duly to act arises in a number of
situations: in particular, they mention the existence of a "protective relationship" giving
rise to such duty, as well as the duty owed by someone in a public or quasi public ,office
to a person in his charge. On both of these bases the third appellant had a duty to stop (as
he easily could have done) the assault on the deceased. Because he was a prisoner the
deceased’s ordinary legal rights were severely curtailed. Thus, with no right to freedom,
he had no ability to run away to escape assault. He was therefore peculiarly vulnerable to
the type of illegal assault which took place. The third appellant, being a corporal, was in a
position of authority over the deceased and the others and it was his duty to supervise the
activities of both. Having regard to these features and the authorities cited below, the
third appellant was under a legal duty to act. The test as to whether a person is guilty of
negligence in any given circumstances is the same in criminal and civil proceedings. See:
R v Meiring, 1927 A.D. 41 at 46; R v Wells, 1949 (3) SA 83 at 88; S v Russell, 1967 (3)
SA 739 at 741. These two cases of Mtati v Minister of Justice, 1958 (1) SA. 221 at 223H
to 22~A and Minister of Police v Ewels 1975 (3) SA 590 at 596-7 are relevant and in
particular the latter authority.

A reasonable man in the position of any of the appellants would have foreseen the
possibility of the deceased’s death, if not the exact manner of its occurrence. Death was
objectively foreseeable because the assault was a severe and sustained one. The assault
also was perpetrated on a man who was admittedly complaining of illness and who, in the
eyes of the first appellant, looked unwell. In this regard the case of R v John 1969 (2) SA
560 at 571G is relevant. Accordingly, both the necessary mens rea and the requisite legal
causation are present.

As far as sentence is concerned, it is necessary that the country as a whole has confidence
in its public servants. Behaviour such as the appellants, which would serve to undermine
the confidence must be viewed in a serious light. See R v Douglas & Anor 1969 (4) SA
239 at 242D-F.
Counsel also cited: R v Mubila 1956 (1) SA 31 and R v Mabole 1968 (4) SA 811.

LEWIS, J.P: The three appellants in this case were jointly charged with one Samuel
Kanume with the crime of culpable homicide. The charge alleged that on the 22nd
September, 1976, and at Chikurubi Prison, "the accused did all and each and one or more
of them wrongfully and unlawfully assault Johan Daniel, a man, and did then there strike
him about the body with sticks giving to him then and there and thereby a certain mortal
wound, bruise, injury and hurt, from the effect of which said mortal wound, bruise.injury
and hurt upon the same day at the same place the said Johan Daniel died, and thus the
said accused did wrongfully and unlawfully kill him." They all pleaded not guilty to the
charge. Samuel Kanume who was the fourth accused was acquitted and the three
appellants were all convicted as charged. Each was sentenced to 18 months
imprisonment, nine months of which, was suspended for five years on certain conditions.
They have appealed to this Court against conviction and sentence.
The deceased was a prisoner serving a sentence at the Chikurubi Prison in the district of
Salisbury, and it is common cause that he did in fact die on the night of Wednesday,
September 22, 1976 of the combined effect of broncho-pneumonia and multiple
superficial injuries.

The State case was that the appellants and their co-accused assaulted the deceased with
sticks in a severe manner and that this was a contributory cause of the death of the
deceased and was a result which could reasonably have been foreseen by the appellants at
the time they assaulted the deceased.

The facts were briefly that on the 20th September, which was a Monday, the deceased
was admitted to the Central Prison to serve his sentence. He underwent a routine medical
examination by Mr. Large, the prison medical orderly. Nothing untoward was found. He
was thereupon sent to Chikurubi Prison. On the following day, which was Tuesday the
21st, he worked in the fields with the rest of the prisoners and apparently nothing was
wrong with him at that time. On Wednesday, the 22nd, he was a member of a gang of 41
prisoners under the supervision of the third appellant, who was the corporal and senior
warder, and three other warders, the first and second appellants and the fourth accused.
The evidence is that a complaint was made by the deceased to the third appellant, the
corporal, that he was not well. The third appellant said that he considered that the
deceased was probably somewhat exhausted from the unaccustomed labour of the
previous day and he put him on to light work, which was picking up maize stalks in the
field. The third appellant apparently then went off with some of the prisoners to attend to
something else, but returned about ten o’clock that morning to that part of the field where
the main gang was. The State alleges that the beating of the deceased occurred between
about ten o’clock and mid-day when the lunch break occurred. Although he was put on
light work, he was transferred to the harder work of breaking up clods and the evidence
shows that he was lagging behind the others who were working in a line across the field.
Because of this, it was apparently thought that he was malingering and the first and
second appellants beat him with sticks which they had in their possession.

Four of the convicts who were in that labour gang that day were called as eye witnesses
of the assaults. Their evidence was found to be on the whole unreliable, but the evidence
of one of them tends to explain why this was. He asked the court at the end of his
evidence whether it would be safe for them as prisoners, now that they had given
evidence against these warders, when they returned to goal, so it can be fairly assumed
that they were somewhat reluctant to give evidence and fearful of reprisals being exacted
on their return to the prison. However, a broad picture of what happened does emerge
from their combined evidence. From this it is clear that the first and second appellants
beat the deceased severely and for a long time with sticks which they had in their
possession. The reason for this was that the deceased was unable to keep up with the rest
of the gang and he was beaten in order to force him to catch up with the others, but no
sooner did he do so than he lagged behind again and he was again beaten. This conduct
continued until about lunch time at 12 o’clock that day. The deceased was found to be
unable to partake of food with the other prisoners because of his condition, and on the
way back to the fields from the prison he collapsed and was carried off to the prison
hospital. He was found by Mr. Lange, the medical orderly, to be in a very serious
condition. He was in a state of shock. His body was covered with bruises and weals. So
serious did Lange think his condition was that he arranged for him to be transferred
immediately to Harare Hospital. Unfortunately, the doctor who attended to him there
does not appear to have appreciated the seriousness of his condition, and after treating
him and prescribing certain drugs he sent him back to the prison hospital, where the
deceased died somewhere about 11 o’clock that same night.

A post-mortem examination was performed the following day by Dr Lee, the

Government Pathologist, and he found, as I have already indicated, that a condition of
broncho-pneumonia and the multiple injuries both contributed to the deceased’s death,
the latter through bleeding into the soft tissue of the body. Although the injuries were
superficial, that was the effect they had and they could have led, independently, in time,
to the death of the deceased. If only one or other of these conditions had existed on its
own, death would have been delayed much longer, but the combined effect of these two
conditions had led to his speedy demise.

As to the injuries found, these were clearly caused by an assault and Dr Lee’s evidence
on this aspect was as follows:

“This was mainly a severe assault in that there were a large number of blows struck. As I
mentioned earlier some of the injuries were very difficult to differentiate as to the number
of blows that had been struck. For instance No 5, which was a diffused area of bruising
13 x 10 centimetres, this I am sure was a large number of overlapping blows but even
discounting these and taking them as one blow each I still have a total of over 40 blows to
account for. Certainly since many of these blows had occurred in areas where the skin is
 particularly thick - the thickest skin on the body is that on the back where most of these
blows had been struck - to produce deep bruises therefore blows in this thick skin would
require heavy blows so I feel this was a severe assault in both aspects.”

That evidence was undoubtedly most cogent evidence and Mr de Bourbon, for the
appellants, does not seek to submit otherwise. Now, the evidence of the three appellants
was characterised by an attempt to minimise almost to the point of triviality the extent of
the assaults. The first and second appellants were in a position where they could not deny
having assaulted the deceased, but they gave the impression that only one or two blows
were struck merely to encourage him to work harder than he was working. There was
evidence from one of the prisoners that the third appellant, the corporal, also personally
joined in attacking the deceased, and it is common cause that he was also in possession of
a stick. However, there was other evidence to contradict this, and the court found that he
did not actually participate, but was guilty on the basis that he, as the person in authority
over the other warders, had a duty to intervene and stop the assault upon the deceased and
that therefore his responsibility for the death of the deceased was equal to that of his co-
accused.

Mr de Bourbon’s main submission in this appeal is that the appellants could not
reasonably have foreseen the possibility of death resulting from what they did. In my
opinion, this submission is quite untenable. This Court in the leading case of R v John
1969 (2) SA 560 (RA) laid down the principles governing the question of foreseeability
in culpable homicide cases. The present CHIEF JUSTICE (who was then the Judge of
Appeal). At page 571F-H of the report said:

“This means that an accused who intentionally assaults his victim by striking him a
moderate blow does not necessarily escape liability if death would not have resulted save
for some exceptional physical peculiarity of the victim such as an eggshell skull or weak
heart. In the end, liability must always depend on whether; in the particular
circumstances, he ought to have foreseen some risk of death. As RUMPFF JA pointed out
in quoting van den Heever’s note on D IX 2.75:
A bonus paterfamilias should consider that some human beings suffer from latent
ailments and succumb to slight violence which would not kill a healthy person.
Eggshell skulls, weak hearts and other human ailments which might cause a man to die
from a trivial assault are well within the range of ordinary human experience. It will be
seen, therefore, that in most cases where death results from an intentional assault, the
accused may be held responsible for that death on the basis of foreseeability. This does
not mean, however, that, in the quite exceptional case where the fatal result is outside the
range of ordinary human experience, the offender should not properly be held guiltless.”

Now, here it is abundantly clear that the deceased at the time that this assault was
perpetrated upon him was beginning to feel the incipient effects of the broncho-
pneumonia which subsequently developed to the serious extent found by Dr Lee in the
post-mortem examination. As I have already indicated, the deceased had reported sick on
arrival at the field with the gang that morning and it must have been abundantly clear to
all three appellants, from the fact that he had reported sick, the fact that he was unable to
keep up with the other prisoners in doing his work, and the fact that on the first
appellant’s own evidence he looked sick, that this was a person who was not fit the time
he was assaulted. There was something wrong with him. I might say that even had this
factor not been present, on the authority of John’s case (supra), and the remarks made in
the passage quoted, it would not avail the appellants to say that they could not reasonably
have anticipated the exact manner in which the deceased met his death. They must have
appreciated that the assault was of such severity that there was a risk to life. He might for
example have had a weak heart, or he might have died from shock, and on that basis
alone it seems to me that the deceased’s death was reasonably foreseeable. But a fortiori,
in the circumstances which they ought to have realised existed at the time they assaulted
him the possibility of death was reasonably foreseeable. It could not have been thought
by a reasonable person in the circumstances that after the initial few blows the deceased
would still be malingering and pretending to be sick. All the probabilities are that after
the first few blows he would have abandoned the pretence of illness and kept up with the
others and done his work normally as he had apparently done on the previous day. The
fact that he consistently lagged behind despite severe blows which caused him to cry with
pain, must have brought home to these appellants that he was genuinely suffering from
some physical disability, and persisting in the assaults in those circumstances rendered
them guilty of culpable homicide beyond any doubt.

As far as the third appellant is concerned, a special submission was made on his behalf
that since he did not physically take part in the assault on the finding of the trial court,
then there is no basis on which he can properly be held liable for the death of the
deceased. Again, this submission appears to me to be quite untenable. He knew quite well
that assaults upon prisoners were not permitted, and that none of the warders was entitled
to assault any of the prisoners under his control. As the first appellant admitted, the third
appellant must have been aware of the assaults perpetrated by the others and the nature of
the assaults. It is quite clear he did nothing whatsoever to intervene or in any way to
discourage the other appellants from continuing this severe and brutal assault upon the
deceased.

The magistrate has dealt with the third appellant’s guilt on the basis of an act of omission
only. It was pointed out by Mr de Bourbon that he was charged with an act of
commission in association with the other two, that is, the actual beating of the deceased
himself. It seems to me, however, that once one starts with the fact that he had a clear
duty, in his position of authority over the other warders, and in his position of being
obliged to protect prisoners from ill treatment, to intervene and put a stop to assaults ( see
Mtati v Minister of Justice 1958 (1) SA 221 (A) and Minister of Police v Ewels 1975 (3)
SA 590 (A)), then the only reasonable inference from his failure to do so is that he was
making common cause with his co-accused who actually inflicted the injuries upon the
deceased. It seems to me this conclusion is fortified by the fact that the third appellant
himself was in possession of a stick, and his evidence as to why he was in possession of a
stick was wholly unsatisfactory to say the least, and almost indicative of a facetious
attitude to the whole episode.

When questioned upon this, he said:

Q. Were you in possession of a stick that day? A. I was.
Q. And the other three accused? A. It depends entirely on the particular warder
concerned. If he wants to have this stick in his possession he may, and if he doesn’t want
to have the stick in possession he doesn’t.
Q. What was your intention in having the stick in your possession? A. When one is
walking about one may have a stick in one’s possession for no apparent reason. In our
particular circumstances we spend the whole day working, and we spend the whole day
standing. We have these sticks in our possession in order to facilitate the circulation of
the blood in our hands.
Q. Are you being serious when you make that answer? A. Different people have different
inclinations, your worship. If one wants to have a stick so one frightens the prisoners, one
might do that.
Q. Well, you have already heard the evidence of accused No 1 and accused No 2 and they
say that is exactly what the intention was for having possession of these sticks. A. Yes.
Q. But you say that you had the stick in order to facilitate the circulation of blood in your
hands? A. I say that because I did not frighten or threaten any prisoner with that stick.
Q. You didn’t have the stick for any other reason other than to facilitate the circulation of
blood? A. The only reason that I could have it was that if at all I wanted to threaten any
of the prisoners, I could do so if I had the stick in my possession.

He did not attempt to say he refrained from interfering because he was afraid to do so.
His evidence was that the matter was such a trivial one that there was no call for him to
intervene. This explanation was patently false. He clearly associated himself with what
was being done.

In all these circumstances, therefore, I am in no doubt that all three appellants were
properly convicted, and their appeals against conviction must be dismissed.
Turning now to sentence, it does not seem to me that an effective sentence of nine
months' imprisonment with labour for an offence of this seriousness can possibly be
categorised as manifestly excessive. Speaking for myself, I regard this as a disgraceful
case. If ever there was a case which called for heavy deterrent sentence, it seems to me
this is such a case. Prison warders are expected to behave in a fair and proper manner
towards prisoners in their charge. If they abuse that authority which is vested in them and
behave in this manner, then they must be left in no doubt that the courts will deal very
severely with them. Their position in this regard is somewhat similar to that of policemen
who abuse their position and assault people in their custody. I need only refer to what
was said in the case of R v Douglas & Anor 1969 (4) SA 239 (RA) at 242, where the
former Chief Justice, SIR HUGH BEADLE, quoted with approval what was said by
QUENET JP in R v Tsikayi Judgment No AD-160-66 as follows:

“The public must have confidence in its police force. Confidence comes with the
knowledge that in the fulfilment of their task the police will themselves observe the law.
Doubt or uncertainty on that point must - necessarily undermine the public's confidence
and its willingness to co-operate with the police in maintaining law and order. And this is
the most serious aspect of an affair such as this. Fortunately, incidents of this kind are
rare but when they do occur, it must be made clear the Courts will deal severely with
them.”
There is no substance in the appeals against sentence, and they must also be dismissed.