THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   076/2010

In the matter between:

MICHAEL NDUNA                                                                       Appellant

and

THE STATE                                                                                Respondent

Neutral citation: Nduna v S (076/10) [2010] ZASCA 120 (30 September
2010)

Coram:
LEWIS and BOSIELO JJA and EBRAHIM AJA

Heard:
13 September 2010
Delivered:
30 September 2010

Summary:
Evidence – similar facts – modus operandi consistent on
different charges of robbery – when inference of guilt can
be drawn – presence of fingerprints on vehicle involved
in robberies – probative value of fingerprint.

_____________________________________________________________________

ORDER

On appeal from: Western Cape High Court (Cape Town) (Goliath and
Le Grange JJ sitting as court of appeal):

The appeal is dismissed.
___________________________________________________________

JUDGMENT

EBRAHIM AJA (Lewis and Bosielo JJA concurring)

[1] This appeal is concerned with the probative value of fingerprint
evidence which formed the basis for the conviction of the appellant on
two charges of armed robbery. He was arraigned for trial in the regional
court in Cape Town and, on conviction, sentenced on each charge to a
term of 15 years’ imprisonment. The learned magistrate ordered that ten
years of the sentence on the first charge was to run concurrently with the
sentence imposed on the second charge, resulting in an effective sentence
of 20 years’ imprisonment.

[2] An appeal to the Western Cape High Court against these
convictions was dismissed. The high court considered that the sentences
imposed warranted interference on the ground that the trial court had not
heeded their cumulative effect. The high court considered that a sentence
of 15 years’ imprisonment was appropriate. Accordingly the effective
sentence of 20 years’ imprisonment was set aside, and in its place an

order was granted that the sentences of 15 years’ imprisonment imposed
on each of the two charges were to run concurrently.

[3] The high court granted the appellant leave to appeal to this court
against his convictions only. The appeal before us was argued on the
basis that the only evidence linking the appellant to both charges against
him was that of his fingerprints found on the two vehicles involved in the
two armed robberies and that this was insufficient to prove guilt beyond
reasonable doubt.

[4] Before dealing with this issue it is necessary to give an overview of
the evidence presented by the complainants on the robbery charges. The
trial commenced on 3 December 2007. David Alexander, a businessman,
testified in respect of the first charge. He said that on the afternoon of
Friday 11 June 1999 he left his offices situated in the Bo-Kaap area, Cape
Town in the company of his driver, Nigel Julius, in order to go to
Nedbank in Strand Street to draw cash to pay his employees’ wages.
Having drawn approximately R4 000 they left the bank at 2.55 pm and
returned to the office just after 3.00 pm. He was a passenger in the
vehicle, which he described as ‘our little Nissan van’ and in his hand he
carried the money he had drawn from the bank, which was not in any
kind of wrapping.

[5] On arrival at the office he alighted from the vehicle and as he and
the driver walked towards the front door of the business, a white venture
panel van pulled up, the right side rear door opened and a man got out
and ran towards him. When this man was directly in front of Alexander
he produced a firearm (a silver pistol) which he held against Alexander’s
head. Alexander dropped the money to the ground. The man picked up

the money and ran back to the white van, got in and the vehicle sped off.
An attempt to apprehend the robber by an employee who gave chase was
unsuccessful. Alexander said that he was unable to identify his assailant
save to say that he was a ‘dark complexioned person’. He provided the
police with the registration number of the vehicle, CA 766235, which he
managed to take down as the Venture made its getaway. He conceded
that the robbery occurred in broad daylight. He explained that he was
unable to make an identification because his attention was riveted on the
firearm held to his head.

[6] His driver, Julius, corroborated this evidence in material respects.
He also testified that the robbers climbed into the passenger side of the
Venture van through a door which lifts at the rear of the vehicle. He was
not able to tell the court if there were others in the Venture van but he did
confirm that the man who had pointed the firearm at Alexander was not
the driver of the vehicle.

[7] Joshua Abrahams, the complainant on the second charge of armed
robbery, which occurred on the afternoon of 26 January 2007 at
approximately 12.45 pm, testified that he had drawn cash in the sum of
R54 300 from the Standard Bank, in N1 City, Cape Town. He was
driving a white Isuzu bakkie, registration number CA 455247, belonging
to the company that employed him. He placed the money in the cubby
hole and drove back to work. As he turned into the parking area of his
place of employment in Kensington, Cape Town, he saw a Mercedes
Benz vehicle also turn into the parking area, make a u-turn and then
reverse out of his line of vision. As he eased his vehicle into its parking
place, he looked in his rear view mirror and saw three men come running
from behind his vehicle, with firearms in their hands. He locked his door,

and the passenger side door of the bakkie. One of the men went to the
front of his vehicle and the other two to the sides, one on the right and
one on the left.  The men broke the windows with their firearms, pointed
these at him and shouted to him to hand over the money. Having broken
the glass of the side window of the bakkie on the passenger side one of
the men opened the passenger door, and took the money from the cubby
hole. The man who took the money hit him on the shoulder with his
firearm. The men then left.

[8] Abrahams said they were not wearing any gloves so that their
hands were uncovered. He conceded under cross-examination that the
Isuzu bakkie was used on a daily basis by himself and other employees
throughout the Western Cape. He explained his inability to describe the
robbers as a consequence of his state of shock. All he could see was ‘guns
in front of me, guns on the side’. He was adamant, however, that the man
who was standing with his firearm on his side (that is the right side) of
the bakkie had approached him from the rear of the bakkie. That was the
only way to get to the vehicle as it was parked in a space limited by a
wall in front of the vehicle and another wall on the right hand side of the
vehicle.

[9] The expert evidence on fingerprints was as follows. At
approximately 3 pm on 11 June 1999, Graham Crowster, an Inspector
with the South African Police Services, with 20 years experience in the
force, received a radio report whilst on duty in Adderley Street, Cape
Town of the armed robbery which had taken place at Alexander’s
business premises requesting that he be on the alert for suspects.
Approximately five minutes later, in front of the provincial offices in
Wale Street, he came across a white Venture vehicle, with registration

number CA 766235, its windows and doors locked. He established that
the vehicle had been stolen in Mitchells Plain. He waited for the
investigating officer to arrive and then left to make a statement at the
Cape Town Police Station.

[10] At 5.30 pm Greg Hail, a fingerprint expert from the local criminal
record centre in Cape Town, examined the vehicle and lifted an
identifiable left thumb print, taken from the left door, directly above the
door handle. He produced photographic enlargements of the fingerprint
lifted from the vehicle door and of a print taken from the left thumb of a
set of fingerprints which he marked with the name ‘Michael Nduna’. He
concluded that they were identical, having established seven points of
similarity between them. As a further test, before the commencement of
his testimony, Hail took a fresh set of left thumb prints from the appellant
which he then compared to the print lifted from the vehicle and to the left
thumb print on the set of prints marked ‘Michale Nduna’ and found that
all three sets were identical to each other. He concluded that the print
which he had lifted from the left door of the white Venture vehicle was
that of the left thumb of the appellant.

[11] Inspector Hendrik Johannes Schreuder of the SAPS, also an expert
in the field of fingerprint evidence, attended the scene of the robbery in
Kensington 26 January 2007 where he examined the white bakkie, with
registration CA 455247. From the right hand side of the bakkie, on the
canopy just behind the door frame, he lifted a palm print. In addition he
also lifted fingerprints from both sides of the bakkie which he testified
were not prints implicating the appellant. He lifted ten prints altogether.
He said that in order to imprint a palm print on a vehicle surface, full
pressure of the palm onto the surface is required. In this case, full

pressure of the palm was exerted on to the vehicle. Embarking on the
same procedure as did Hail in order to establish the identity of the palm
print, he compared the print he had lifted from the bakkie with a set of
fingerprints which he received from the investigating officer. He
concluded that the print was that of the right palm of the appellant, having
found seven points of similarity.

[12] No questions were put to Hail or Schreuder challenging the
authenticity of the prints lifted by them, nor was their evidence
challenged on appeal. It must accordingly be accepted that the appellant’s
left thumb print and right palm print, respectively, were found on the
vehicles involved in the two armed robberies. Although it was argued that
the failure to give evidence on the age of the prints reduced their
probative value, the appellant did not challenge the state’s evidence that
the prints lifted were his. In the light of this evidence, it was conceded by
counsel for the appellant that the application in terms of s 174 of the
Criminal Procedure Act 51 of 1977 for the discharge of the appellant at
the close of the respondent’s case was ill-conceived and had been rightly
refused. The probative value of fingerprint evidence is undoubted: S v
Legote 2001 (2) SACR 179 (SCA) para 3.

[13] The appellant testified in his defence. His response to the
fingerprint evidence was that in 1999 he was employed by Blue Ribbon
Bakery as a van assistant, delivering bread throughout the Western Cape,
his hours of duty being from 6 am to 3 pm. His areas of delivery were
Salt River, Woodstock and Cape Town. He knew nothing about the white
Venture vehicle and nothing about the first robbery charge against him. In
January 2007 he was unemployed and knew nothing about the second
robbery. He frequently visited the N1 Centre in Cape Town with his

children, especially his youngest child who liked to play the games at the
centre. He testified that he delivered bread in 1999 to shops in the Bo-
Kaap area, from Monday through to Saturday, that the delivery to each
shop was quick, with no break in between each delivery. He said the first
deliveries were done in the morning in the Bo-Kaap area and the rest
thereafter, with his workday ending at 3 pm by which time he was free.
Sometimes his workday ended at 12 noon. When confronted with the
evidence that his palm print was found on the Isuzu bakkie he said:
‘When the motor vehicles are in the parking lot and you go and park there then there
is a possibility that you can touch someone’s vehicle when you get out of your car.’
and
‘When you pass in between the motor vehicles you could touch.’
and
‘It might be now that when I come back from the shop and I’m pushing my trolley
and then it might be that I accidentally then touch a motor vehicle.’
and
‘It might be just on that day that I touched there – it might (be) the way it was
parked.’

[14] Counsel for the appellant argued that the inference of guilt was not
the only possible inference to be drawn from the circumstantial evidence
presented in the case (R v Blom 1939 AD 202). The enquiry before us
then is whether the court a quo, on the evidence before it, could
reasonably have come to the conclusion that it was indeed the appellant
who perpetrated the robberies in question. This involves a determination
of whether the two cardinal rules of logic in Blom had been invoked: first,
the inference that the appellant committed the robberies must be
consistent with all the proved facts. If it is not, that inference cannot be
drawn. Second, the proved facts should be such that they exclude every

reasonable inference from them save that it was the appellant who was
the perpetrator.

[15] The first leg of the enquiry is clearly met: the inference that the
appellant was one of the robbers is consistent with the fingerprint
evidence. The answer to the second depends upon the probative value to
be accorded to the appellant’s thumb and palm prints found on the
Venture van and the Isuzu bakkie. Can it be said, ultimately, that his
explanation as to how his palm print came to be on the Isuzu bakkie and
his lack of knowledge as to how his thumb print came to be on the
Venture van is reasonably possibly true, such that the conclusion that the
appellant was guilty on both counts is wrong?

[16] The thrust of counsel’s argument was three-fold. First, eight years
had passed between the date of the first robbery and the date of the
appellant’s testimony. The lack of explanation for the presence of his
thumb print on the Venture van was equally consonant with an innocent
explanation as with a guilty one, as was his explanation of his palm print
on the Isuzu bakkie. Second, because the state had not led any evidence
during the trial as to the apparent age of the appellant’s thumb print and
palm print and the probable life span of these prints in the particular
positions they were found on the vehicles, the probative value of the
finger print evidence had been diminished. Third, the high court had erred
in using the evidence led on the one count in order to prove the other
count as this was an impermissible form of reasoning in determining the
guilt of the appellant. Counsel submitted that the court a quo ought to
have harboured a doubt as to the appellant’s guilt and acquitted him on
both charges.

[17] It is settled law that whilst similar fact evidence is admissible to
prove the identity of an accused person as the perpetrator of an offence, it
cannot be used to prove the commission of the crime itself. This legal
principle operates, in addition, to exclude such similar fact evidence from
being confirmatory material on another count.

[18] However, the application of the rule is not to be confused with the
situation where the rule is invoked to establish the cogency of the
evidence of a systematic course of wrongful conduct in order to render it
more probable that the offender committed each of the offences charged
in respect of such conduct (S v Gokool 1965 (3) 465 NPD at 475A-D).
The appellant’s argument, if it were to be accepted, would be tantamount
to excluding evidence of the modus operandi of the appellant merely
because he had been charged with more than one count of robbery. In
Gokool Harcourt J said (at 475D-F):
‘It is clear that each count brought against an accused person must be considered
separately and that the admissibility of evidence on each count must be tested as if
that count had been the only count against such accused ─ R v Buthelezi 1944 TPD
254. But this does not prevent material, which could be admissible under the rules
relating to similar fact evidence, from being received merely because a plurality of
counts is involved in a case.’
The ultimate test is, and must always be, the relevance of such similar
fact evidence as the foundation for its admissibility against the accused
person: the evidence will be admissible if it is relevant to an issue in the
case. This court (per Schreiner JA) stated the rule succinctly in R v
Matthews 1960 (1) SA 752 (A) at 758B-C:
‘Relevancy is based upon a blend of logic and experience lying outside the law. The
law starts with this practical or common sense relevancy and then adds material to it
or, more commonly, excludes material from it, the result being what is legally
relevant and therefore admissible. . . . Katz’s case is authority for asking oneself

whether the questioned evidence is only, in common sense, relevant to the propensity
of the appellants to commit crimes of violence, with the impermissible deduction that
they for that reason were more likely to have committed the crime charged, or
whether there is any other reason which, fairly considered, supports the relevancy of
the evidence.’

[19] R v Katz 1946 AD 71 very clearly demonstrates how the rule is to
be applied. The accused there was charged with having sold meat above
the controlled price on five separate occasions within a period of 11 days.
Evidence was admitted of a customer’s complaint some weeks before
then of the high price charged, and of the accused’s response that he was
not prepared to sell at the controlled price, on account of its relevance to
show that the accused sold in the ordinary course of business at a higher
price. This evidence of his practice made it more probable that he sold on
the five separate occasions at the higher price. Thus evidence of a modus
operandi can be used to prove the commission of an offence provided the
relevance of that evidence has been established. In my view the evidence
relating to the modus operandi on the two counts, supported by the
fingerprint evidence, is relevant and admissible. Each offence has been
established independently, but the cumulative effect of evidence of
similar conduct on both counts must weigh heavily against the appellant.

[20] Counsel referred us to the judgment of Griesel J (Van Staden AJ
concurring) in the Western Cape High Court in the matter of Jonginamba
v The State (Case No A389/10). The appellant in that matter was
convicted of the robbery of the second complainant in this case,
Abrahams, in respect of the same incident. The court on appeal set aside
Jonginamba’s conviction on the basis that the evidence of his palm print
on the Isuzu bakkie was insufficient to conclude that the only reasonable

inference to be drawn was that he was one of the robbers. I express no
view on the correctness of the decision. The evidence in this matter is
different because of the additional charge of robbery, and because the
appellant’s explanation of how his fingerprints may have been placed on
the two vehicles is not credible.

[21] It is highly unlikely that two robberies, committed in the same
fashion (the robbery by armed men of a complainant, who has just drawn
cash from a bank, as he returns to his business premises ), where the
fingerprints of one are found on the different vehicles, would be entirely
unconnected. Even though so far apart in time, the coincidence,
especially when regard is had to the fact that the fingerprints of the
appellant were lifted in each case from a vehicle proven to have been
involved in each robbery, is explicable only on the basis that the appellant
participated in each robbery.

[22] The only inference to be drawn from the proved facts is that the
appellant is guilty on both counts, and was correctly convicted.

[23] The appeal is dismissed.

___________________

S Ebrahim

Acting Judge of Appeal

APPEARANCES

APPELLANT:
RM Liddell

Instructed by Liddell Weeber & Van der
Merwe c/o Von Lires, Cooper, Barlow,
Cape Town

Ben
van
der
Merwe
Attorneys,
Bloemfontein

RESPONDENT:
(Ms) M Marshall
Instructed by The Director of Public
Prosecutions, Cape Town
The Director of Public Prosecutions,
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

30 September 2010

STATUS:
Immediate

Nduna v S (076/10) [2010] ZASCA 120 (30 September 2010)

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.

The Supreme Court of Appeal today dismissed an appeal brought against a finding
that evidence of fingerprints on two vehicles involved in armed robberies in Cape
Town was, in the circumstances of the case, sufficient to incriminate and convict the
appellant.

Two armed robberies of cash drawn from a bank to pay wages had taken place: one in
1999 and one in 2007. The pattern of each robbery was the same. In both cases the
fingerprints of the appellant had been found on vehicles involved in the robberies. The
appellant tried to explain the presence of his fingerprints by suggesting that he might
have touched the vehicles in passing. This explanation was not reasonably possibly
true in the light of the uncontested evidence that the prints found on the vehicles were
those of the appellant.

The trial court had convicted the appellant on both counts. The Cape High Court
dismissed an appeal, finding that the fingerprint evidence proved beyond reasonable
doubt that the appellant had been guilty of the two robberies. The SCA confirmed the
finding of the high court.