S v Mdlongwa

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Mhlantla JA and Saldulker AJA
• Judgment Date: 31 May 2010
• Citation: 2010 (2) SACR 419 (SCA)
• Docket Number: 99/10
• Hearing Date: 12 May 2010
• Counsel: SB Mngadi for the appellant.AA Watt (DPP, Pietermaritzburg and Bloemfontein) for the State.
• Court: Supreme Court of Appeal

Saldulker AJA:

[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 5 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 G 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 H 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 I 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 J

Saldulker AJA

A Protection Solutions, stationed at the bank that morning, video footage of the bank robbery taken by digital closed-circuit television (CCTV) cameras which were in place at the bank at the time of the robbery (where both accused 5 and the appellant are seen participating in a bank robbery, and where the latter is seen wearing a blue T-shirt), and the B evidence of Inspector Naude, a member of long standing with the South African Police Service, who was attached to the Facial Identification Unit for 18 years, and who made a facial comparison of the appellant and accused 5, 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 C 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 D 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 E 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.

F [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 haircut and the other as wearing a blue Adidas skipper and G 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 4 at the trial.

H [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. I 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 J a hostage, but then left her in the cubicle. Thereafter the robbers left the

Saldulker AJA

bank. Mbatha testified that the robber who assaulted Mabaso wore short A pants and a blue T-shirt, and in court identified him as accused 5.

[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 5 wore a blue T-shirt, and that the appellant stood next to him carrying a firearm. This B was in stark contrast to what the appellant and accused 5 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 5 cannot be seen in isolation. If one examines Mbatha's evidence, except for the description of the C clothing worn by two of the robbers, whom he identified as the appellant and accused 5, 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...