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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
High Court Case No: P34/2025
Regional Court Case No: RC2/17/2023
(1) Reportable: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
SIGNATURE
DATE: 26 August 2025
In the matter between:
OYAMA MENDU Applicant
And
THE STATE Respondent
These judgment prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties I their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be August 2025.
SHORT REASONS
RETIEF J
INTRODUCTION
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[1] On the 17 November 2023 at the Reginal Magistrates Court in Springs,
before the learned Magistrate, Mr J .D, Herman [Court a quo], the applicant was
found guilty of the 3 (three) charges put to him, namely that he on the 20 February
2023 at Pollak Park, Springs robbed Ms L R Nkosi [Ms Nkosi] and Ms N Ncanana
(Ms Ncanana) with aggravating circumstances as intended in terms of section 1 of
Act 51 of 1977 [robbery] and that he kidnapped Ms Ncanana [the charges].
[2] The applicant 9 February 2024 was sentenced to 15 years in respect of
each count of robbery (count 1 and 3) and for 5 years for the kidnapping (count
2), and the sentences of counts 2 and 3 were to run concurrently with count 1. The
applicant applied to the Court a quo for leave to appeal his conviction but, such
leave was refused. He now petitions this Court seeking leave to appeal his
conviction.
GROUNDS OF APPEAL
[3] The nub of the applicant's petition to this Court is that the State, absent
physical evidence, failed to proof its case beyond a reasonable doubt in that the
States case was solely based on the testimony of four eye-witnesses who
positively identified the applicant as being the perpetrator of the robberies and the
kidnapping, and that the cautionary rule applied to two of them. The cautionary
rule application in that, the one eye-witness, B[…] N[…], was a 12 year old boy
[the minor] and the other Ms Ncanana, a complainant was a single witness.
[4] It is common cause that the State only relied on the identification of the
applicant to prove its case as there was no physical evidence, no fingerprints, only
the stolen motor vehicle was recovered, no DNA and no firearm was retrieved.
However, each case must be considered on its own merits and is case specific for
that very reason. This case was considered by the on that basis. The specific
circumstances of this case concern the perpetration of the crimes at 2 (two)
different crime scenes, involving eye-witnesses who, save for the minor, were
different crime scenes, involving eye-witnesses who, save for the minor, were
not mere spectators but with whom, the applicant conversed with whilst he was in
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close proximity to them. The first crime was committed at the home of the Nkosi
family where the applicant robbed Ms Nkosi of cash, her cell phone and her
2013 Opel Corsa [vehicle] at gun point [crime 1]. The applicant then fled from the
scene of the Nkosi home in Ms Nkosi's vehicle only to then kidnapped Ms
Ncanana and to take took to her home where he robbed her television and two
cell phones, at gun point [crime 2]. Ms Nkosi found her abandoned vehicle in the
driveway of Ms Ncanana's house.
[5] Against this backdrop this Court cre -onsiders the reliability of
identification evidence presented by the State upon which the Court a quo relied
and which it reconsidered when the application for leave was argued before it.
This Court is reminded that: "Facial characteristics are a more reliable and
enduring source of identification than variable features such as hairstyle or
clothing...”.1 According to the testimony of all the eye-witnesses, the applicant did
not wear a face mask at the time both crimes were perpetrated. The applicant's
facial characteristics were therefore visible to all the eye-witnesses and,
especially to Ms Ncanana, who was able to observe him over a longer period of
time whist he too, openly conversed with her.2 Furthermore, the minor testified to
the fact that hat he recognised the applicant, he was Lion's father. Lion, was a
fellow student who travelled to school with the minor in "lift club'. Ms Ncanana
also recognised the applicant. She testified to the fact that she had personally
seen him in the neighbourhood together with his brother.
[6] Over and above this, all the eye- witnesses testimony regarding the
applicant's variable identification features at the time, his clothes (faded pink polar
neck with black jeans}, his hairstyle and that the fact that was chubby, remained
consistent. Notwithstanding the fact that such variable features by their very
nature change any change, as in this case, all the eye witnesses positively identified
nature change any change, as in this case, all the eye witnesses positively identified
the applicant in the witness box at the date of the hearing. this includes the minor.
1 S v Charzen (344/05) [2006] ZASCA 147 at par 14.
2 S v Mthethwa 1972 (3) SA 766 (A) in which Holmes JA spoke to a number of factors when testing
the reliability of an eye-witnesses observation. A number of the factors was eyesight, the proximity of
the witness, his opportunity for observation and the extent of his prior knowledge of the accused.
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[7] Over and above what has been mentioned, the applicant's most reliable
facial characteristic and most distinguishing feature was his gold teeth which all the
eye- witnesses observed and testified to. Irrespective of any inconsistency arising
from the number of such gold teeth, all of eye-witnesses, testified to the fact that he
had gold teeth. It was never put them that the applicant did not have gold teeth nor,
that they could not have been in a position to observe his gold teeth. Although the
applicant did not testify. The record shoes that during the Court A quos questioning of
the applicant his gold teeth were observed.
[8] The high watermark of the applicant's application speaks to the reliance
of the evidence due to certain inconsistencies present in the testimony of the eye-
witnesses relating to his variable features. In this way the applicant places weight on
the matter of S v Dewani.3 However, the Court a quo correctly placed weight on the
factors as set out in S v Mthethwa.4
[9] The applicant did not testify, he closed his case without calling any
other witness to testify to facts which, may have required an answer.
[10] Considering all the application, this Court is not inclined to grant leave and as
such, the application must fail.
[11] The following order:
1. Leave to appeal against the conviction is refused.
L.A. RETIE
Judge of the High Court
Gauteng Division
I agree
3 2014 WCH 18 at par 188.
4 See footnote 2.
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J.G. RAUTENBACH
Acting Judge of the High Court
Gauteng Division