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[2010] ZASCA 70
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Ngcamu and Another v S (665/2009) [2010] ZASCA 70; 2011 (1) SACR 1 (SCA) (26 May 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 665/2009
In the matter
between:
THULANI
NGCAMU
First
Appellant
SIFISO SHANGE
Second
Appellant
and
THE
STATE
Respondent
Neutral
c
itation:
Ngcamu
v The State
(665/09)[2010] ZASCA 70 (26 May 2010)
Coram:
MTHIYANE,
MHLANTLA JJA and SALDULKER AJA
Heard:
13
May 2010
Delivered: 26
May 2010
Summary:
Appellant
identified as the driver of a getaway vehicle during a robbery ─
raising alibi defence ─ alleging that he
was hijacked shortly
before the robbery while
driving
the same vehicle
─
question on appeal ─ whether there is a reasonable possibility
of his version being true.
______________________________________________________________
_______
ORDER
On
appeal from:
KwaZulu-Natal
High Court (Pietermaritzburg) (Gorven J and Pillay AJ sitting as
court of first instance):
1
The
appeal against the conviction of robbery with aggravating
circumstances (count 1) and attempted murder in respect of Dingaan
Elphas Mabuza (count 3) is dismissed.
2 The appeal
against the conviction on count 2 ─ the attempted murder in
respect of Tobias Dumisani Mhlongo ─ is upheld,
and paragraph 1
of the order of the court a quo is substituted with the following:
‘
1 The
appeal of both appellants against their conviction and sentences in
respect of count 2 is upheld.’
___________________________________________________________
JUDGMENT
MTHIYANE JA
(Mhlantla JA and Saldulker AJA concurring)
[
1] The
appellant, Mr Thulani Ngcamu and a co-accused, Mr Sifiso Shange
(second appellant in the court below) were convicted in the
regional
court, Durban, on one count of robbery with aggravating
circumstances, two counts of attempted murder and two counts of
unlawful possession of firearms. They were both sentenced to 15
years’ imprisonment for the robbery with aggravating
circumstances,
5 years’ imprisonment for the attempted murders
and 3 years’ imprisonment for the unlawful possession of
firearms,
taken together for the purpose of sentence. The two 5-year
sentences for the attempted murders were ordered to run concurrently
with the 15-year sentence imposed on the
charge
of robbery with aggravating circumstances, which meant that each one
of them would serve an effective term of 18 years’
imprisonment.
[2] The
appellant and his co-accused, as the first and second appellants,
appealed to the KwaZulu-Natal High Court, Pietermaritzburg
(Gorven J
and Pillay AJ) against both their conviction and sentence. The appeal
succeeded partially. Their conviction and sentence
in respect of the
robbery with aggravating circumstances and the charges of attempted
murder were confirmed but the conviction
for the unlawful possession
of firearms was set aside. In respect of the latter charges, the
court found that sections 4
1
and 5
2
of the
Firearms Control Act 60 of 2000
which the appellant and his
co-accused allegedly contravened, only came into effect on 1 July
2004. It therefore followed that
the conviction for a contravention
of these sections on 9 February 2004 had to be set aside and so, too,
the 3-year sentence imposed
therefor. The sentences imposed by the
magistrate for the robbery (15 years) and the attempted murders (5
years for each count)
were upheld. The court ordered the two 5-year
sentences to run concurrently with the 15-year sentence imposed by
the magistrate
on the charge of robbery with aggravating
circumstances. The court granted leave to the appellant and his
co-accused to appeal
to this court against their conviction only. The
appellant’s co-accused however passed on before the hearing of
this appeal.
The present appeal therefore only concerns Mr Ngcamu,
who was the first appellant in the court below and it is convenient
in this
appeal to refer to him simply as ‘the appellant’.
[3] The
charges of robbery with aggravating circumstances and attempted
murder arose from an incident at a BP filling station and
garage in
Clare Estate on the morning of 9 February 2004.
At
about 10:15 Mr Dingaan Mabuza and Mr Tobias Mhlongo employed by Coin
Security, a cash-in-transit company, arrived at the above
premises.
Mhlongo alighted from the vehicle in order to remove the cashbox from
the drop-safe containing cash and replace it with
an empty cashbox.
Mabuza remained at the wheel. While Mhlongo was on the forecourt he
was accosted by two men armed with firearms.
They pointed their
firearms at him and took the laden cashbox and his firearm from him
by force. They then ran to a silver-grey
Honda Ballade which was
parked on the edge of the garage forecourt with its doors open. It is
not clear how many occupants were
in the vehicle after the two
robbers entered. There was however one other person in the vehicle,
the driver.
[4] As
the vehicle moved away
Mabuza gave chase. He suspected that the vehicle belonged to the
appellant. It was a Honda Ballade, the same make as the appellant’s
and bore the same colour, the only difference being that it had ‘ND’
(Durban) registration plates, whereas the appellant’s
vehicle
was Mpumalanga registered, with ‘MP’ registration plates.
As he continued the chase, one or more persons in
the Honda fired
shots at him. Mabuza returned fire, shattering the Honda’s rear
window and causing the driver of the Honda
to turn and look behind
towards Mabuza. Mabuza then recognised the driver as the appellant,
whom he knew well.
[5] Mabuza’s
chase
was unsuccessful as he lost the getaway vehicle in the traffic. The
vehicle was subsequently found abandoned in Clermont, a township
near
Durban. Upon inspection by Inspector Duma Makhaye of
the
Pinetown Police he found that ‘ND’ registration plates
were stuck on top of its original plates bearing registration
number
CMT 412 MP, with which the police were able to trace the appellant as
the owner. Makhaye handed the matter over to the Serious
and Violent
Crimes Unit, which took charge of the case. Upon searching the
vehicle, Inspector Thabethe of that Unit found a Coin
Security metal
seal underneath the driver’s seat and some personal documents
belonging to the appellant, which displayed
his residential address:
26 Gillian Court, 6 Mc Arthur Street, Durban.
[6]
Inspector
Thabethe, the investigating officer, thereafter made several attempts
to contact the appellant, without success. He visited
the appellant’s
apartment on two occasions but could not find him. He left messages
for the appellant to contact him but
the appellant did not respond.
About a week later on 15 February 2004, Thabethe and other police
officers visited the appellant’s
apartment and arrested him for
the robbery and the other related charges referred to above.
[7] In
his defence the appellant denied that h
e
was the driver of the Honda Ballade used in the robbery. He admitted
that the vehicle belonged to him but alleged that it had
been taken
away from him by force in a hijacking, on the morning of 9 February
2004 ─ the day of the robbery ─ at about
08:45 at Dududu.
The robbery took place at about 10:15 that morning. Indeed it was
common cause that he had reported the hijacking
incident at
Amanzimtoti Police Station that day at about 14:30. The hijacking
complaint was later transferred to the Scottburgh
Police Station, as
Dududu fell within Scottburgh.
[8]
Both
the magistrate and the high court rejected the appellant’s
version that he had been hijacked as a red herring and accepted
Mabuza’s identification of the appellant as the person who was
driving the Honda Ballade used in the robbery. The question
in this
appeal is whether there is a reasonable possibility that the
appellant’s version might be true. Of course if that
is the
case, then it would mean that Mabuza was mistaken, and that the
appellant was not the driver of the getaway vehicle.
[9] Counsel
for the appellant
submitted
that the evidence of Mabuza had to be approached with caution given
the fallibility of human observation. He drew attention
to a number
of features in the evidence which gave rise to the possibility that
Mabuza might have made a mistake in his identification:
He said
Mabuza was describing a mobile scene through an armoured glass; there
was exchange of gun fire; the getaway vehicle was
not very close; and
the appellant was in the front seat during the chase.
[10] It
is true as was laid down by this court in the classical case of
S
v Mthetwa
3
that because of the fallibility of human observation, evidence of
identification is approached by the courts with some caution.
In this
regard Holmes JA said:
‘
It
is not enough for the identifying witness to be honest: the
reliability of his observation must also be tested. This depends
on
various factors, such as lighting, visibility, and eyesight; the
proximity of the witness; his opportunity for observation,
both as to
time and situation; the extent of his prior knowledge of the accused;
the mobility of the scene; corroboration; suggestibility,
the
accused’s face, voice, build, gait, and dress; the result of
identification parades, if any; and, of course, the evidence
by or on
behalf of the accused. The list is not exhaustive. These factors, or
such of them as are applicable in a particular case,
are not
individually decisive, but must be
weighed
one against the other, in the light of the totality of the evidence,
and the probabilities; see cases such as
R.
v. Masemang
,
1950 (2) S.A. 488
(A.D.);
R.
v. Dladla and Others
,
1962 (1) S.A. 307
(A.D.) at p. 310C;
S.
v. Mehlape
,
1963 (2) S.A. 29
(A.D.).’
I
n
the present matter and on the totality of the evidence I do not think
that there is any possibility of Mabuza having been mistaken
as to
the identity of the appellant. He and the appellant
had
worked together for Coin Security until approximately a week before
this robbery and had on occasion been, a crew together in
the same
Coin Security vehicle. They were friends and came from the same area,
which was attested to by the appellant himself in
his evidence. In
response to a question in cross examination he said of his
relationship with Mabuza:
‘
He
is my friend, we grew up together. We drink together. We attend
functions together’.
There can
therefore be no question that Mabuza and the appellant knew each
other well.
[11] The
factors mentioned by counsel taken singly or cumulatively do not
detract from the reliability of Mabuza’s evidence
of
identification of the appellant. The incident occurred in broad
daylight; although there was an exchange of gunfire Mabuza did
not
feel threatened because he was seated in a bulletproof vehicle;
his view to the vehicle was not impeded by the armoured glass as
suggested by counsel; he was able to observe an ‘ND’
registration plate that was stuck on the original registration plates
of the Honda; if he could observe the registration plates
without any
difficulty ─ and this was not disputed ─ there is no
logical reason why he could not identify the face
of somebody who was
well known to him. During the chase Mabuza was as close as 8 to 10
metres from the Honda and his view was not
obstructed in any way
especially after its rear view windscreen was shattered by the shots
he fired at it. It is true as counsel
argued
that the scene was mobile but it is clear that the events were not
taking place at such a frenetic pace that Mabuza could
have made a
mistake as to what was happening. Counsel’s submission that
Mabuza had to make split-second observation is clearly
an over
exaggeration.
[12] In
my view on a conspectus of all the evidence in this case, the
conclusion is unavoidable that the appellant participated in the
robbery using his own vehicle. When he realised that he had been
identified he opened a false charge alleging that he had been
hijacked, which never occurred.
[
13] It
is little wonder that his version that he was hijacked does not bear
scrutiny. It is riddled with serious flaws. According
to the
appellant, he was hijacked in the early morning at 08:45 but he only
reported the incident at 14:30 in the afternoon at
Amanzimtoti Police
Station, which was further away from the scene of the robbery.
Although the Dududu main road where he was hijacked
is only some 3 to
4 kilometres from Scottburgh Police Station, he for some inexplicable
reason, elected to report the incident
at Amanzimtoti Police Station
in a different area, a long way away from Scottburgh, some five hours
later, despite the fact that
he got a lift from the scene of the
robbery to convey him to Amanzimtoti Police Station. It is also not
clear why it took him so
long to report the incident.
[14
] The
appellant’s conduct after the hijacking reflects an
inexplicable lack of interest in contacting the police. After the
recovery of his vehicle soon after the robbery, police left messages
at his apartment for him to contact them but he failed to
do so. The
police only managed to track him down when they arrived at his
apartment on 15 February 2004 when he
was
eventually arrested. When asked about the reason for his failure to
respond to messages left by the police he replied that he
did not
know why the members of the Serious and Violent Crimes Unit were
looking for him, a not so convincing response. Why should
it matter
which police unit was looking for him ─ if he had laid a
complaint with the police concerning his vehicle and he
was to be
informed that it had been recovered? It seems as if the appellant was
trying to keep as far away from the police as possible
─
strange behaviour for someone who in the ordinary course of events
would have been delighted that his vehicle had been
recovered and so
soon after the hijacking.
[15
] Another
strange feature of this robbery, mentioned by the magistrate in his
judgment, is that the false registration plates were
stuck over the
original plates. On the probabilities it is unlikely that the
hijackers would have done this if they wished to use
the vehicle to
commit a robbery. In all probability they would have ripped off the
original registration plates and replaced them
with false
registration plates before using the vehicle and this would have
enabled them to avoid early detection. What the robbers
did here, on
the appellant’s version, as found by the magistrate, correctly
in my view, is consistent with the conduct of
an owner who did not
want his vehicle to be lost in the system once it is recovered. This
conclusion is reinforced by the finding
in the vehicle of the
appellant’s documents with his address on them. I agree with
the magistrate that the appellant threw
a red herring to the
investigating officers on his robbery charge by having to report the
case of a hijacking at Amanzimtoti Police
Station, which never
occurred.
[16
] The
high court’s rejection of the appellant’s version is also
unassailable. It found that the appellant’s version
if true,
required the
coming
together of the following unlikely coincidences. The appellant’s
vehicle is hijacked that morning. It is then used
within a short time
as the getaway vehicle in the robbery. By chance the victims of that
robbery are his former employers, whose
employment he had left a few
days before. One of the robbers in this robbery is armed with a
weapon which is a standard issue to
the employees of Coin Security.
What is more, the driver of the getaway vehicle turns out to be
somebody who looks remarkably like
him, so much so, that Mabuza who
knew the appellant well and in consequence could not be easily
mistaken. On this identification,
by mistake misidentifies this
driver as the appellant. Pillay AJ correctly concluded, in my view,
that the combination of circumstances
is so far fetched that the
hijacking version cannot reasonably possibly be true. The conclusion
reached by both courts below in
their rejection of the appellant’s
version can therefore not be faulted.
[17
] Counsel
for the appellant also criticised Mabuza for not informing the
investigating officer, Inspector Thabethe at the scene,
that the
person whom he had seen driving the getaway vehicle was the
appellant. What counsel overlooked is the fact that Mabuza
had
immediately informed the controller Rashid by radio control from the
scene that the person he saw driving the getaway vehicle
was the
appellant.
[18
] I
am satisfied that both of the courts below were correct in accepting
the evidence of Mabuza in his identification of the appellant
as the
driver of the Honda Ballade used by the robbers and in their
rejection of his version that he was hijacked.
[19
] I
also do not have any difficulty with the conviction on the charge of
attempted murder in respect of Mabuza. Shots were fired
at him from
the
getaway vehicle in order to discourage him from pursuing the Honda
Ballade. It matters not that he was in an armoured vehicle
and that
he did not believe that he was at risk of injury or death from this
gunfire as the bullets could not penetrate the armoured
vehicle. The
shooter had the requisite criminal intent even if they were
attempting the impossible.
[20
] What
troubles me however is the conviction of attempted murder charge in
respect of Mhlongo (count 2). There was no evidence that
the robbers
fired any shots at him. In his evidence Mhlongo repeatedly stated
that the shots from the Honda Ballade were not directed
at him but at
Mabuza who was driving the armoured vehicle. When questions were put
to counsel for the State as to the basis upon
which the appellant was
convicted on this count, she was driven to concede, correctly in my
view, that the conviction thereon was
not sustainable. Accordingly
the appellant’s appeal against the conviction on this count is
good and the conviction thereon
falls to be set aside.
[21
] In
the result the appeal against the conviction on the counts of robbery
with aggravating circumstances and the attempted murder
in respect of
Mabuza fails but the appeal against the conviction on the count of
attempted murder in respect of Mhlongo succeeds.
[22] Accordingly
the following order is made:
1
. The
appeal against the conviction of robbery with aggravating
circumstances (count 1) and attempted murder in respect of Dingaan
Elphas Mabuza (count 3) is dismissed.
2. The
appeal against the conviction on count 2 ─ the attempted murder
in respect of Tobias Dumisani Mhlongo ─ is upheld
and
paragraph
1 of the order of the court a quo is substituted with the following:
‘
1. The
appeal of both appellants against their conviction and sentences in
respect of count 2 is upheld.’
_____________________
K K Mthiyane
Judge of Appeal
APPEARANCES
APPELLANT
S: P
Misselhorn
Instructed by
Legal Aid Board, Pietermaritzburg
Legal Aid
Board, Bloemfontein
RESPONDENT:
(Ms)
A A Watt
Instructed by
The Director of Public Prosecutions, Pietermaritzburg
The
Director of Public Prosecutions,
Bloemfontein
1
Section
4
sets out a list of ‘firearms and devices [that] are
prohibited and may not be possessed or licensed in terms of this
Act’,
subject to certain exceptions.
2
Section
5
sets out a list of ‘devices [that] are not regarded as
firearms.’ Although the firearms found in possession of the
appellant and his co-accused, fell within the prohibited ‘devices’
the State had the difficulty that the operative
sections (4 and 5)
which made it an offence to possess only came into effect on 1 July
2004.
3
1972
(3) SA 766
(A) at 768 A-C; See also D T Zeffertt A P Paizes and A St
Q Skeen
The
South African Law of Evidence
5ed
(2003) p 142.