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[2010] ZASCA 82
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S v Mdlongwa (99/10) [2010] ZASCA 82; 2010 (2) SACR 419 (SCA) (31 May 2010)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No
99/10
In
the matter between:
M
LUNGISI
MDLONGWA Appellant
and
THE
STATE Respondent
Neutral
citation:
Mdlongwa
v The State
(99/10)
[2010] ZASCA 82
(31 May 2010)
Coram:
Mthiyane
and Mhlantla JJA and Saldulker AJA
Heard:
12
May 2010
Delivered:
31
May 2010
Summary:
Robbery
with aggravating circumstances
─
State relying on dock identification of appellant
─
facial comparison
made by expert from photograph taken ex post facto and video footage
of the bank recorded during the robbery.
Identification of the
appellant as one of the robbers sufficiently established. Appeal
dismissed and conviction and sentence of
twenty years’
imprisonment confirmed.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
KwaZulu-Natal High
Court (Pietermaritzburg) (Swain J and Radebe AJ sitting as court of
appeal):
The appeal against the conviction and sentence is
dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
SALDULKER AJA ( MTHIYANE AND MHLANTLA
JJA
concurring)
[1]
The
appellant, Mr Mlungisi Mdlongwa, and four other persons were charged
in the Regional Court in Dundee, with robbery with aggravating
circumstances, unlawful possession of firearms and ammunition. The
appellant and accused five were convicted of robbery with
aggravating
circumstances and acquitted on the other charges. The appellant was
sentenced to 20 years’ imprisonment. His
appeal against both
the conviction and sentence was dismissed by the KwaZulu–Natal
High Court (Swain J and Radebe AJ concurring).
The court granted him
leave to appeal to this court, against both the conviction and
sentence.
[2
]
The charges arose from an incident on 11 February 2004, at about
09h30, when a bank robbery took place at the NBS Building
Society
(the bank), situated at the Pick n Pay centre, in Dundee,
KwaZulu-Natal, as set out in the charge sheet.
[3
] The
appellant pleaded not guilty to the charges and advanced an alibi
defence. Through his counsel he denied that he was the person
depicted in the photograph taken by a police witness Inspector Khoza
and in the video footage of the robbery, both of which formed
part of
the evidence produced in court. The appellant did not testify in his
defence at the trial.
[4
]
The State relied on the dock identification of the robbers by Mr
Sikhumbuzo Mbatha, a security officer employed by Roman Protection
Solutions, stationed at the bank that morning, video footage of the
bank robbery taken by digital close circuit television (CCTV)
cameras
which were in place at the bank at the time of the robbery (where
both accused five and the appellant are seen participating
in a bank
robbery, and where the latter is seen wearing a blue t-shirt) and the
evidence of Inspector Naude, a member of long standing
with the South
African Police Services, who was attached to the Facial
Identification Unit for 18 years, and who made a facial
comparison of
the appellant and accused five, from photographs taken of them
(exhibit K and exhibit L), by Inspector Khoza two
weeks after the
robbery and video stills (exhibit F29 and F30) taken from the video
footage. It therefore followed that in order
to secure a conviction
the state had to lead a chain of evidence to link the appellant to
the robbery.
[
5]
The sole issue for determination on appeal is whether the appellant
was properly identified as one of the robbers. The appellant
challenged the State’s case on three legs. Firstly, it was
submitted that Mbatha’s testimony was unsatisfactory and
contradictory, that no reliance could be placed on his dock
identification, more especially since no identification parade was
held. Secondly, that the expert, Inspector Naude, called by the State
as a facial comparison expert was no ‘expert’,
as she
lacked academic qualifications and that her findings were thus
unacceptable because it was not of a generally accepted
standard.
Thirdly, that the video footage of the robbery was not the original
and should not have been admitted in evidence. I
turn to consider
these challenges in the factual matrix.
[6] I deal first with the evidence
of Mbatha. He testified that he was on duty at the bank on the day in
question. He stood at
the entrance where he searched every person
that entered the bank, using a metal detector. As he stood there,
three persons appeared.
He testified that he could only identify the
two that approached and spoke to him. He described one as having a
short hair cut
and the other as wearing a blue Adidas skipper and an
Adidas pants. The third person stood at a lotto machine which was
situated
at a restaurant opposite the bank. One of the two that
approached him, asked ‘whether he had seen people robbing a
bank’,
to which he did not respond. He identified this person
as the appellant, who was accused four at the trial.
[
7] This
person, whom he identified as the appellant, then drew a firearm and
pointed it to the ground and ordered him to allow
the other two into
the bank. At this stage, three robbers and Mbatha then entered the
bank, passed two doors within a cubicle
and walked into the banking
hall. As they did so, two other robbers, followed, now numbering
five. The first person to enter
the bank pointed a firearm at Mr
Mabaso who worked at the enquiries counter. The latter was then
assaulted with a crowbar and
ordered to open the door of the tellers’
section, which was opened by Ms Ayesha Ismail, one of the tellers.
[
8] The
robbers then proceeded to take the money and grabbed Ismail as a
hostage but then left her in the cubicle. Thereafter the
robbers left
the bank. Mbatha testified that the robber who assaulted Mabaso wore
short pants and a blue t-shirt and in court identified
him as accused
five.
[
9]
Mbatha’s evidence was criticised by counsel for the appellant
especially with regard to the description of the clothing
allegedly
worn by the appellant. According to Mbatha’s testimony, accused
five wore a blue t-shirt, and that the appellant
stood next to him
carrying a firearm. This was in stark contrast to what the
appellant and accused five are seen wearing in the
video stills. It
is the appellant who is seen wearing a blue t-shirt. In my view
Mbatha’s contradictory evidence in respect
of the clothing worn
by the appellant and accused five cannot be seen in isolation. If
one examines Mbatha’s evidence, except
for the description of
the clothing worn by two of the robbers, whom he identified as the
appellant and accused five, his testimony
is completely in line with
what is portrayed on the video footage and the stills as having taken
place during the robbery. Mbatha’s
evidence that one of the
robbers wore a blue Adidas t-shirt was corroborated by Ms Botes, a
branch manager at the NBS bank. She
testified that she was seated in
her office, when she was confronted by one of the robbers wearing a
blue t-shirt with an inscription
in white with a capital letter ‘A’,
and who ordered her to open the safe.
[10] Additionally, merely because
Mbatha made a dock identification of the appellant and accused five,
does not make his evidence
less credible. Generally, a dock
identification carries little weight, unless it is shown to be
sourced in an independent preceding
identification.
1
But there is no rule of law that a dock identification must be
discounted altogether, especially where it does not stand alone.
Mbatha had ample opportunity at least to observe two of the robbers
who participated in the robbery as is visible from the video
footage
and who were later identified as the appellant and accused five in
the facial comparison made by inspector Naude, an aspect
to which I
shall return to later, thus supporting his dock identification of
them.
[11] As is apparent from the
aforegoing, Mbatha’s testimony is not the sole testimony relied
upon by the State. As already
indicated, his description of how the
robbery unfolded is corroborated by the video footage. Although there
were contradictions
in his testimony as to the clothing worn by the
appellant and accused five and his statement to the police, when his
evidence is
assessed as a whole these contradictions are not material
and pale into insignificance. He may have been innocently mistaken
about
the apparel of the robbers, which is understandable in the
circumstances, given that a gun was pointed at him. As was stated by
Nugent J in
S v Van
der Meyden,
2
‘
A
court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond
reasonable doubt, and so too does it not look at the exculpatory
evidence in isolation to determine whether it is reasonably possible
that it might be true.’
3
‘
A
court does not base its conclusions, whether it be to convict or to
acquit, on only part of the evidence:’
4
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond a reasonable doubt, and
the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.’
5
[12] Mbatha had no reason to falsely
implicate the appellant and accused five in the robbery. I am
satisfied that Mbatha’s
identification of the appellant as
being involved in the NBS robbery taken together with the other
evidence in this case, establishes
the appellant’s
participation in the robbery.
[13] I turn to the evidence of
Inspector Naude. But before doing so, it is necessary to refer
briefly to the challenge levelled
against the evidentiary material
that she relied on in reaching her conclusion that the appellant was
one of the robbers.
VIDEO FOOTAGE
[1
4] Inspector
Naude analysed the still photographs of the video footage recorded at
the bank during the robbery. Ms Botes testified
that there were nine
surveillance cameras strategically installed inside the bank, at the
door and at the ATM machine. All nine
cameras were connected to a
video machine. On the morning of the robbery, the video footage and
the video cassette remained under
lock and key until it was handed
over to Mr Henk Viljoen, the regional security manager for the Nedcor
Group.
[1
5] Viljoen
confirmed that the digital CCTV recorders were installed at the NBS
bank which recorded all footage on a hard drive and
transmitted those
onto a computer. This was stored in the treasury area of the bank.
Each of the video cameras were hooked up to
one system which recorded
onto three separate hard drives. The hard drives were serviced and
tested on a weekly basis to ensure
that the cameras were recording
and functioning properly. No member of staff had access to download
any information or to tamper
with information that was stored on the
hard drive.
[1
6] When
Viljoen viewed the video footage, he downloaded the information,
(which he was solely authorised to do) for the police
to print video
stills of what occurred in the bank robbery, and handed the footage
over to Inspector Ahmed. He stated that although
he did not have any
computer qualification, the technicians and the manufacturers of the
digital video recorder system had shown
him how to operate it.
PHOTOGRAPHS
[17] I turn to the photographs.
Photographs were taken by Inspector Khoza of the appellant and
accused five, ex post facto, two
weeks after the incident and handed
over to Inspector Ahmed. The latter handed over the two photographs
and the video footage to
Inspector Naude to do a facial comparison.
Inspector Naude found in her facial comparison analysis of both the
appellant and accused
five, that there were points of similarities,
between the photograph of the appellant (exhibit K) and the person
appearing in the
video footage (exhibit F29) and the photograph of
accused five (exhibit L) and the video footage (
exhibit
F30). Based on her findings of points of similarities, she concluded
that the persons appearing in the video footage were
the appellant
and accused five. For the purposes of this judgement it is not
necessary to refer to the details in regard to the
facial comparison
of accused 5, except to point out that the court below appears to
have inadvertently confused exhibits L and
F30 as being that of the
appellant. The evidence of Inspector Khoza, that he took the
photograph of the appellant was not seriously
disputed. All that the
appellant said was to deny through his legal representative that he
was the person depicted in the photograph
taken by Inspector Khoza.
That denial however, took the matter nowhere because the appellant
did not testify in his defence. In
this regard Inspector Khoza’s
evidence stood alone.
[18] In this case there appears to
be every reason to accept Inspector Naude as an expert. The merits of
her findings were not seriously
impugned. All that was argued was
that she lacked academic qualifications. A lack of academic
qualification may sometimes be regarded
as indicative of a lack of
sufficient training, but this is not the case here, if one has regard
to the vast experience that Inspector
Naude accumulated over a number
of years. Inspector Naude testified that she was a police officer
for 30 years. She has been
stationed at the Pretoria Criminal Record
Centre, in the Facial Identification Unit for 18 years. The work at
the unit involved
developing facial reconstruction from skulls,
facial comparisons and facial compilations. Nationally she was
involved in the training
of all facial identification units.
Although she did not have any academic qualifications, she had run
three workshops at the
University of Pretoria and was studying
osteology at the University of Pretoria. She had done over five
hundred facial comparisons
and thousands of facial compilations. She
had testified in court on a number of occasions and this was her
twentieth case. In this
regard the judgment of this court in
S
v Mlimo
6
is in point. In that case Mthiyane JA said:
‘
In my
view a qualification is not a
sine
qua non
for the evidence of a witness to qualify as an expert. All will
depend on the facts of the particular case. The court may be
satisfied
that despite the lack of such a qualification the witness
has sufficient qualification to express an expert opinion on the
point
in issue. It has been said:
It is the
function of the judge [including a magistrate] to decide whether the
witness has sufficient qualifications to be able
to give assistance.
The court must be satisfied that the witness possesses sufficient
skill, training or experience to assist it.
His or her qualifications
have to be measured against the evidence he or she has to give in
order to determine whether they are
sufficient to enable him or her
to give relevant evidence. It is not always necessary that the
witnesses’ skill or knowledge
be acquired in the course of his
or her profession it depends on the topic. Thus, in
R
v Silverlock
it was said that a solicitor who had made a study of handwriting
could give expert evidence on the subject even if he had not made
any
professional use of his accomplishments. (See DT Zeffert, AP Paizes &
A St Q Skeen
The
South African Law of Evidence
(2003) at 302; see also Lirieka Meintjies-Van der Walt, ‘Science
fiction: The nature of expert evidence in general and scientific
evidence in particular’
(2000) 117 SALJ 771
at 773-4.)’
[19] In this matter, inspector Naude
had received two photographs, the photograph of the appellant
(exhibit K) and the photograph
of accused five (exhibit L) from
Inspector Ahmed, as well as a copy of the video footage of the bank
robbery. She was instructed
to do a facial comparison of the
individuals appearing in the photographs and the video footage.
[20] The methods that she employed
were in terms of the standards generally accepted in her department,
and were based on her vast
experience. She found 13 points of
similarities between the facial features of the person in the video
footage, (exhibit F29) and
the photograph of the appellant (exhibit
K). Thus she was able to establish the link that the person appearing
in the video footage
of the robbery was the appellant. The courts
below were justified in accepting her conclusions in that regard.
[21] Although Inspector Naude chose
to do the facial comparison from only two photographs, this does not
detract from the conclusions
that she arrived at. There were other
individuals appearing in the video footage. Her evidence was
sufficient to establish a link
that one of the individuals captured
on the video footage during the robbery was the appellant. There is
no reason to doubt the
accuracy of her findings. The fact that she
was unable to identify the appellant in court as the person appearing
in the footage
was irrelevant, and was not the purpose of her
testimony. The results of her findings as reflected in the points of
similarities
established between the photograph taken by Inspector
Khoza and the still photographs downloaded from the video footage,
are sufficient
to link the appellant to the robbery.
[22]
I
turn to the third and final challenge, namely that the video footage
was not the original. Viljoen testified that each branch
had its own
hard drive from which the video footage images in which the appellant
and his co-accused were captured, were downloaded.
There can
therefore be no question that the video footage was original and
therefore constituted real evidence. The submission
by the
appellant’s counsel to the contrary is therefore without
substance. In
S v
Mpumlo & others
7
it was stated that a video film, like a tape recording,
‘is
real evidence, as distinct from documentary evidence, and, provided
it is relevant, it may be produced as admissible evidence,
subject of
course to any dispute that may arise either as to its authenticity or
the interpretation thereof’.
[23]
In
S v Ramgobin &
others
8
it was held that for video tape recordings to be admissible in
evidence it must be proved that the exhibits are original recordings
and that there exists no reasonable possibility of ‘some
interference’ with the recordings.
In this case there can be no question
that the aforesaid video evidence was admissible.
Viljoen
testified that he was solely authorised to download the video footage
of the robbery from the bank’s digital CCTV
cameras which were
installed at the NBS bank. He handed these to Inspector Ahmed.
Botes confirmed that they were instructed not
to touch the video
footage which remained under lock and key until it was retrieved by
Viljoen. In my view no tampering took place
with the video footage.
Consequently, there appears to be no reason to reject the
authenticity and the originality of the video
footage downloaded by
Viljoen from the surveillance cameras installed at the bank.
[
24] In
any event, it need not be established that the original footage was
used because the purpose of introducing the video footage
into
evidence was to identify the scene where the robbery took place, to
enable the witness to identify the robbers and for Inspector
Naude to
make the facial comparisons. (See
S
v Ramgobin and others
at 125E-H.) As I have already indicated the video footage of the
robbery constitutes real evidence as it was taken from the
surveillance
cameras installed at the bank. The video footage
provides corroboration for Mbatha’s testimony as to what
occurred during
the robbery. What emerged from the video stills is
unmistakably the identification of the appellant and accused five
being present
at the NBS bank and participating in a bank robbery.
[
25] Having
regard to the totality of the evidence, the appellant was properly
identified as one of the robbers of the NBS bank.
In the face of
incriminating evidence that the appellant was involved in the bank
robbery, he adduced no counterveilling evidence
in his defence.
Despite video footage recording his presence at the bank, the
appellant chose not to testify. Where there is direct
evidence
implicating an accused in the commission of an offence, the
prosecution case is
ipso
facto
strengthened
where such evidence is uncontroverted due to the failure of the
accused to testify.
9
Furthermore the appellant’s bald denial that he was not the
person depicted in the photograph taken by Inspector Khoza nor
the
one appearing in the video footage must be rejected as false.
[26] An accused has the
constitutional right to remain silent but this choice must be
exercised decisively as ‘the choice
to remain silent in the
face of evidence suggestive of complicity must, in an appropriate
case, lead to an inference of guilt’.
10
[27] In my view all of the State’s
evidence, cumulatively, established the identification of the
appellant as one of the
robbers in the NBS bank beyond a reasonable
doubt. The appellant was correctly convicted. Accordingly, the appeal
against the conviction
must fail.
[
28] I
turn to consider the appeal against the sentence. Counsel for the
appellant contended that the court below did not properly
exercise
its discretion in sentencing the appellant to twenty years’
imprisonment, five more years than the minimum prescribed.
In
advancing these submissions, he stated that the appellant was a
first offender, that he had been incarcerated for more than
a year
and that no one had been injured during the robbery.
[
29] It
is trite that this court may only interfere if a misdirection has
been committed by the sentencing court. In my view no such
occurred.
The aggravating features of this robbery far outweigh the mitigating.
In my view the brazen conduct of the appellant
and his co-accused in
entering a bank, and robbing it with impunity in the presence of
innocent members of the public and assaulting
a staff member, is
deserving of the sentence imposed. It is not a shocking sentence but
a salutary one.
In my view, t
heir
brazen conduct is deserving of the sentence imposed. It is neither
excessively severe nor harsh that it must be interfered
with. It
follows therefore that the appeal against sentence also fails.
[3
0] Accordingly
the following order is made:
T
he
appeal against the conviction and sentence is dismissed.
___________________________
H
K Saldulker
Acting Judge of Appeal
APPEARANCES:
APPELLANT/S: S B Mngadi
Mlungisi Mdlongwa (In person)
RESPONDENT/S: A A Watt
Instructed by The director of
Public Prosecutions, Pietermaritzburg
The Director of Public Prosecutions, Bloemfontein
1
S v Tandwa
2008
(1) SACR 613
(SCA) at 617b-d.
2
1999 (2) SA 79
(W).
3
Van der Meyden
at 81A-B.
4
At 82A.
5
At 82C-D.
6
[2008] ZASCA 7
;
2008 (2) SACR 48
(SCA) para 13.
7
1986 (3) SA 485
(E) at 490H-I;
Motata
v Nair NO
2009 (2) SA 575
(T) para 21.
8
1986 (4) SA 117 (N).
9
Magmoed v Janse van Rengsburg and others
[1992] ZASCA 208
;
1993
(1) SACR 67
(A).
10
Tandwa
at
615I-j; see footnote (1) above.