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[2010] ZAWCHC 341
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Ngaye v S (A567/10) [2010] ZAWCHC 341 (3 December 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT. CAPE TOWN)
CASE
NO
:
A567/10
DATE
:
3
December 2010
In the matter between:
MLUMKELO
NGAYE
….......................................................................
Appellant
and
THE
STATE
…..................................................................................
Respondent
JUDGMENT
BLIGNAULT, J
This is the judgment in
the appeal of Mlumkelo Ngaye. Appellant was convicted in the Regional
Court, Parow, on a charge of robbery
with aggravating circumstances
in that on 29 May 2009 at zone 12, no 8, Langa firstly he robbed Mr
Tinti of a cell phone, R10 000
cash, and R1 000 worth of airtime
vouchers, whilst threatening him with a firearm, and secondly he
robbed Mr Wei of a cell phone,
key and belt whilst threatening him
with a firearm. Appellant was sentenced to 15 years imprisonment He
was subsequently granted
leave by the Magistrate to appeal against
his conviction and sentence.
Appellant was accused 2
at the trial. There was one other accused named accused 1. Appellant
enjoyed legal representation and he
pleaded not guilty.
Much of the evidence at
the trial was not disputed. On the day in question three or four men
entered the shop owned by Mr Tinti.
One of the men had a gun which
he pointed at Mr Tinti and then took his belt, cell phone and R10
000 cash, the man then pushed
him into a fitting room. A second man
went to the counter where he took certain goods. Mr Tinti's cousin,
Mr Wei, was also in
the shop. He was also pushed into the fitting
room by the intruders. They, that is Mr Tinti and Mr Wei, emerged
about five minutes
later and found that the three men had left.
Mr Tinti testified that
the public did not have access to the counter referred to but this
was later not clarified in the evidence
as there were two counters
referred to. The other one was marked G on the plan, to which the
public had access. Mr Tinti testified
that appellant was one of the
intruders but he did not appear to be certain of this. Mr Wei
confirmed Mr Tinti's evidence and
he in turn identified accused 1.
The State called Mr Barend Swanepoel, a fingerprint expert. He
testified that the finger and
palm prints of accused 1 and appellant
were found on the counter marked G on the plan.
Accused 1 gave evidence,
he denied that he was involved in the robbery. He said that he knew
the shop and that he had been there
at least once to buy a bag and a
phone cover Appellant also gave evidence. He also denied being
involved in the robbery and he
too said that he had been to the shop
at some stage to buy a phone charger.
It
is well known that fingerprint evidence is normally of considerable
probative value. In some cases it can be decisive but this
is not
necessarily so. The value of fingerprint evidence ultimately depends
upon the evidence as a whole. In this regard I want
to refer to the
case of
S
v Legote en Ander
2001(2)
SACR, pg 179 and in particular para 3 thereof, where these
principles were established
The magistrate's general
approach to the question of identification was in principle
consistent with the legal principle thus
laid down. It is trite law
that the factual and credibility findings of the trial court will
normally carry considerable weight
on appeal. Inferential or legal
reasoning on the other hand is different in regard to such matters
and the Court of appeal is
in as good a position as the trial court
to decide such issues.
In the present case the
magistrate acquitted accused 1, but convicted appellant. I will come
back to this question of the similarity
of the circumstances in
regard to both of them. Given the nature of the magistrate's factual
findings it is necessary to examine
the precise grounds on which he
came to this result.
The position of accused
1 and the appellant was particularly similar. It is useful to
consider the similarities or differences
in the evidence implicating
them under three headings. In the first place there was eye witness
identification of each of the
two accused, in the second place there
was a fingerprint identification of both of them and thirdly there
was in each case an
innocent explanation for the presence of the
fingerprints.
The fingerprint evidence
implicated appellant and accused 1 in the same manner, although it
was suggested in argument before us
by the advocate for the State
that this was not necessarily so. The tenor of the judgment appears
to be to support this similarity
and counsel was not able to point
to any differences in the evidence on record.
I turn then to the next
item, the eye witness identification. Some of Mr Tinti's evidence
tended to identify appellant as one
of the perpetrators. The
magistrate dealt with this evidence quite thoroughly, and he
referred to general principles and then
also discussed the problems
with identification known as dock identification. He summarised this
aspect in his judgment in the
following terms, after referring to
photos he said the following:
"There was no
evidence in that regard placed before me. I find his evidence with
regard to the identification of the accused
of little value, in fact
I will go so far as to say the impression I got from his evidence
that he only implicates accused 2
when he saw him there in the dock,
in the witness stand. So seen on its own if it stood the
identification on its own then I
would have had grave doubt as to
its reliability and acceptability."
In
regard to the eye witness identification of accused
1.
This
evidence was given by Mr Wei and the magistrate summarised it
briefly by stating that this identification evidence was
unsatisfactory to say the least. Apparently Mr Wei changed his
version a few times in evidence and its clear that the magistrate
also attached very little to this identification evidence.
It appears then at this
stage that in regard to both the eye witness identification and the
fingerprint identification there is
very little, if any, difference
between the evidence implicating accused 1 and appellant.
A third aspect that was
considered by the magistrate was the probative value of the innocent
explanation put forward by each of
the accused for the presence of
his fingerprints on the counter in the shop. The tenor of their
evidence was the same, namely
that they knew the shop and had been
there in the past, but they were unable to say that it was on the
day in question. The magistrate's
judgment on this aspect is not
clear at all. Dealing with accused 1's version he said it is very
evasive, and it is unclear on
certain aspects to the points which I
have just alluded to. Then he refers to accused 2's version and in
this regard the magistrate
seems to equate the two of them. Then he
proceeded to say with regard to accused 1's version, especially in
the light of the
concession made by Mr Swanepoel, that it might be
possible that while visiting the shop, he might have left his print
there,
and in the absence of any other evidence he found his version
not reasonably possibly true. On that basis accused 1 was acquitted.
The magistrate then
proceeded to discuss the version of accused 2. On the face of it
there does not appear to be any difference
in either the quality or
the probative value of the evidence given by accused 2, that is
appellant in this regard.
It is not necessary for
me to analyse this evidence in depth, save to say that there is no
clear indication as to why the magistrate
would distinguish between
the two of them.
The only point of
distinction to be discerned in the judgment is the statement to
which I referred above, that apparently Mr Swanepoel,
the
fingerprint expert, made a concession that it might be possible that
while visiting the shop he might have left his print
there. Now I
gather from this that this concession would have been elicited from
Mr Swanepoel under cross-examination. It follows
however from the
evidence in regard to the fingerprints and their position, and the
fact that the two accused each gave a similar
explanation for the
innocent presence of their fingerprints that Mr Swanepoel's
concession in regard to the one accused carry
no weight whatsoever.
It could have carried perhaps some weight if Mr Swanepoel had been
asked whether it was not equally possible
for appellant's
fingerprint to have been left there, that question was however not
explored.
This Court is then left
with the curious situation that on the evidence before it there does
not appear to be any discernible
difference in the evidence adduced
by the State as regards on the one hand accused 1, and on the other
hand, appellant.
It is trite law that
under the Constitution everyone is equal before the law and has the
right to equal protection and benefit
of the law. In the case before
us accused 1 did enjoy the protection and benefit of the law in that
he was acquitted. Appellant
for no reason apparent at all was not
given that same protection and benefit.
In
the circumstances it seems to me that it would only be fair and just
that appellant should also be acquitted. I therefore make
the order
that
APPELLANT'S
APPEAL IS UPHELD AND
THAT
HIS
CONVICTION AND SENTENCE ARE SET ASIDE.
BLIGNAUT,
J
I
Concur with the order
WEYER,
AJ