THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No 99/10

In the matter between:

MLUNGISI 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

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.

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
[14] 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.
[15] 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.

5 At 82C-D.

[16] 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 Mlimo6 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

6 2008 (2) SACR 48 (SCA) para 13.

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 & others7 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’.

7 1986 (3) SA 485 (E) at 490H-I; Motata v Nair NO 2009 (2) SA 575 (T) para 21.

[23]  In S v Ramgobin & others8 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

8 1986 (4) SA 117 (N).

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, their 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.

[30] Accordingly the following order is made:

The appeal against the conviction and sentence is dismissed.

9 Magmoed v Janse van Rengsburg and others 1993 (1) SACR 67 (A).
10 Tandwa at  615I-j; see footnote (1) above.

___________________________
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

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2010
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.
* * *
MDLONGWA V THE STATE

The Supreme Court of Appeal (SCA) today dismissed an appeal by the appellant against
his conviction on a charge of robbery with aggravating circumstances and a sentence of 20
years’ imprisonment.

The appellant was charged with a co-accused in a regional court with the robbery that
occurred at  the NBS bank, in Dundee. The State relied in proving its case on the dock
identification of the robbers by a security officer who was stationed at the bank on the
morning of the robbery; a 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; and
the evidence of an expert witness who was a police inspector attached to the Facial
Identification Unit in the South African Police Service for 18years. The appellant chose not
to testify.

The regional court found that the State had proved its case against the appellant beyond
reasonable doubt. It convicted and sentenced him accordingly. The appellant appealed to
the KwaZulu-Natal High Court (Pietermaritzburg) but his appeal to that court was
dismissed. However, the high court granted him leave to appeal to the SCA against both
conviction and sentence.

The sole issue before the SCA was whether the appellant was properly identified as one of
the robbers. The appellant challenged the State’s case on three legs. Firstly, that the security
officer’s evidence was unsatisfactory and contradictory, and that no reliance could be
placed on his dock identification, more especially since no identification parade was held.
Secondly, that the expert witness was no ‘expert’ as she lacked academic qualifications and
that her findings that there were 13 points of similarities in the facial comparison that she
did from a photograph taken of the appellant and the individual appearing in the video
footage, were thus unacceptable. And thirdly, that the video footage of the robbery was not
the original and should not have been admitted in evidence.

In dismissing the appeal, the SCA held in respect of the first leg of attack that the security
officer’s evidence was corroborated by the video footage, that his dock identification of the
appellant did not make his evidence less credible and that the alleged contradictions were
not material. It held in respect of the second leg of attack that, although a lack of academic
qualifications may sometimes be regarded as indicative of a lack of sufficient training, this
was not so in this case having regard to the vast experience that the expert witness had
accumulated over a certain number of years.

There was no reason to doubt the accuracy of her findings, that one of the individuals
captured on the video footage during the robbery was the appellant.  In respect of the third
leg of attack the SCA held that no tampering with the video footage took place and that
there appeared no reason to reject its authenticity and originality. Therefore, its
admissibility could not be questioned. The SCA held further that 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 the expert Inspector Naude to make the facial comparisons. The
video footage of the robbery constituted real evidence and what emerged from it
unmistakably was the identification of the appellant and accused five being present at the
NBS bank and participating in a bank robbery.

In the face of incriminating evidence that the appellant was involved in the bank robbery,
the appellant chose not to testify, nor adduce any counterveilling evidence in his defence.
Furthermore the appellant’s bald denial through his legal representative that he was not the
person depicted in the photograph taken by a police witness, Inspector Khoza nor the one
appearing in the video footage was rejected as false. The SCA held that the evidence
cumulatively established the identification of the appellant as one of the robbers in the NBS
bank beyond a reasonable doubt. The appellant was properly identified as one of the
robbers and correctly convicted.

As regards sentence, the SCA held that in view of 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.
The sentence of 20years was not a shocking one but a salutary one.

---ends---