S v Mdlongwa

• Jurisdiction: South Africa
• Citation: 2010 (2) SACR 419 (SCA)

S v Mdlongwa
2010 (2) SACR 419 (SCA)

2010 (2) SACR p419

Citation	2010 (2) SACR 419 (SCA)
Case No	99/10
Court	Supreme Court of Appeal
Judge	Mthiyane JA, Mhlantla JA and Saldulker AJA
Heard	May 12, 2010
Judgment	May 31, 2010
Counsel	SB Mngadi for the appellant.; AA Watt (DPP, Pietermaritzburg and Bloemfontein) for the State.

Flynote : Sleutelwoorde

Evidence — Admissibility — Video footage — Bank security cameras — Whether such footage original — Each branch of bank having own hard drive on which footage from security video cameras captured, and from which such G footage downloaded — Video footage unquestionably original and constituting real evidence — No tampering having occurred before footage handed over to police — Consequently, neither authenticity nor originality of video footage could be rejected.

Evidence — Assessment of — Identification — Dock identification — Generally H carrying little weight, but no rule that it be discounted altogether — Witness having ample opportunity to observe two robbers, one of whom later identified as appellant — Witness having no reason to falsely implicate appellant — His evidence, taken together with other evidence in case, establishing appellant's participation in robbery.

Evidence — Expert evidence — Approach of court — Expert witness lacking academic I qualifications — Lack of academic qualification sometimes indicating lack of sufficient training, but this not case where witness having vast experience as police officer for 30 years and member of Facial Identification Unit for 18 years — Methods employed meeting standards generally accepted in relevant department — No reason to doubt accuracy of her findings. J

2010 (2) SACR p420

Headnote : Kopnota

The appellant was convicted in a regional court of robbery with aggravating circumstances and sentenced to 20 years' imprisonment. His appeal to the High Court against both conviction and sentence having failed, he approached the Supreme Court of Appeal. The matter arose from a bank robbery in which the appellant had been implicated by eyewitness and video evidence. Although he did not testify, the appellant put forward an alibi B defence. The sole issue in the appeal against conviction was the correctness of the identification, which was challenged on three grounds: that the eyewitness testimony of M, a security guard, and his dock identification of the appellant, were unreliable; that a police officer, N, who had conducted a facial comparison lacked academic qualifications, and was thus not an expert; and that the video footage of the robbery, C not being original, ought not to have been admitted.

Held, that, while M had given evidence as to the appellant's clothing that contradicted what was apparent from the video, this aspect should not be seen in isolation. The rest of his evidence was completely in line with the video footage. As to the dock identification, it would generally carry little weight, unless it was sourced in a preceding identification. However, there D was no rule that it should be discounted altogether, especially where it did not stand alone. M had had ample opportunity to observe two of the robbers, one of whom was later identified as the appellant in the police's facial comparison. In addition, M had had no reason to falsely implicate the appellant. Accordingly, his evidence, taken together with the other evidence in the case, established the appellant's participation in the robbery. E (Paragraphs [9]–[12] at 423 b–424 e.)

Held, further, that it was only N's lack of academic qualifications, not the merits of her findings, that had been challenged. While a lack of academic qualification might sometimes be indicative of a lack of sufficient training, this was not the case with N, given the vast experience she had accumulated as a police officer for 30 years and as a member of the Facial Identification F Unit for 18 years. She had done hundreds of facial comparisons and compilations and had testified thereon in court on a number of occasions. The methods she had employed were in terms of the standards generally accepted in her department. She had found 13 points of similarity between the facial features of the person in the video footage and a photograph of the appellant; this established that one of the individuals captured on the video G was the appellant. There was no reason to doubt the accuracy of her findings. (Paragraphs [18]–[21] at 425 g–426 i.)

Held, further, that each branch of the bank had its own hard drive on which footage from security video cameras was captured, and from which such footage could be downloaded. The video footage in casu was, therefore, unquestionably original and it constituted real evidence. As to the question H of possible interference with the recordings, the evidence established that no tampering had occurred before they were handed over to the police. Consequently, neither the authenticity nor the originality of the video footage could be rejected; and what emerged from it was unmistakably the identification of the appellant as one of those participating in the robbery. Against the totality of the evidence, the appellant's bald denial of involvement I must be rejected as false, and the appeal against conviction must fail. (Paragraphs [22]–[27] at 427 b–428 d.)

Held, further, regarding sentence, that the aggravating features of the robbery far outweighed the mitigating. Although the appellant was a first offender, and had spent a year in prison, the brazen conduct of entering a bank, robbing it with impunity in the presence of members of the public, and assaulting a J staff member, was deserving of the sentence imposed. The period of

2010 (2) SACR p421

imprisonment, which was five years more than the minimum prescribed, A was not a shocking sentence, but a salutary one. (Paragraphs [28] and [29] at 428 d–f.) Appeal dismissed.

Annotations:

Cases cited

Reported cases

Magmoed v Janse van Rensburg and Others 1993 (1) SACR 67 (A) (1993 (1) SA 777): referred to B

Motata v Nair NO and Another 2009 (1) SACR 263 (T) (2009 (2) SA 575): referred to

S v Mlimo 2008 (2) SACR 48 (SCA): dictum in para [13] applied

S v Mpumlo and Others 1986 (3) SA 485 (E): dictum at 490H - I applied C

S v Ramgobin and Others 1986 (4) SA 117 (N): referred to

S v Tandwa and Others 2008 (1) SACR 613 (SCA): referred to

S v Van der Meyden 1999 (1) SACR 447 (W) (1999 (2) SA 79): applied.

Case Information

Appeal against conviction and sentence handed down by a regional court and confirmed on appeal to the KwaZulu-Natal High Court, D Pietermaritzburg (Swain J and Radebe AJ). The facts appear from the judgment of Saldulker AJA, in which Mthiyane JA and Mhlantla JA concurred.

SB Mngadi for the appellant.

AA Watt (DPP, Pietermaritzburg and Bloemfontein) for the State. E

Cur adv vult.

Postea (May 31).

Judgment

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...