THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   665/2009

In the matter between:

THULANI NGCAMU                                                           First Appellant

SIFISO SHANGE                                                              Second Appellant

and

THE STATE                                                                                Respondent

Neutral citation: Ngcamu v The State (665/09)[2010] ZASCA 70 (26 May
2010)

Coram:
MTHIYANE, MHLANTLA JJA and SALDULKER
AJA

Heard:
13 May 2010
Delivered:
26 May 2010

Summary:
Appellant identified as the driver of a getaway vehicle
during a robbery ─ raising alibi defence ─ alleging
that he was hijacked shortly before the robbery while
driving the same vehicle ─ question on appeal ─
whether there is a reasonable possibility of his version
being true.

_____________________________________________________________________
ORDER

On appeal from: KwaZulu-Natal High Court (Pietermaritzburg) (Gorven
J and Pillay AJ sitting as court of first instance):

The appeal against the conviction of robbery with aggravating
circumstances (count 1) and attempted murder in respect of Dingaan
Elphas Mabuza (count 3) is dismissed.
The appeal against the conviction on count 2 ─ the attempted
murder in respect of Tobias Dumisani Mhlongo ─ is upheld, and
paragraph 1 of the order of the court a quo is substituted with the
following:
‘1
The appeal of both appellants against their conviction and
sentences in respect of count 2 is upheld.’
___________________________________________________________
JUDGMENT

MTHIYANE JA (Mhlantla JA and Saldulker AJA concurring)

[1] The appellant, Mr Thulani Ngcamu and a co-accused, Mr Sifiso
Shange (second appellant in the court below) were convicted in the
regional court, Durban, on one count of robbery with aggravating
circumstances, two counts of attempted murder and two counts of
unlawful possession of firearms. They were both sentenced to 15 years’
imprisonment for the robbery with aggravating circumstances, 5 years’
imprisonment for the attempted murders and 3 years’ imprisonment for
the unlawful possession of firearms, taken together for the purpose of
sentence. The two 5-year sentences for the attempted murders were
ordered to run concurrently with the 15-year sentence imposed on the

charge of robbery with aggravating circumstances, which meant that each
one of them would serve an effective term of 18 years’ imprisonment.

[2] The appellant and his co-accused, as the first and second
appellants, appealed to the KwaZulu-Natal High Court, Pietermaritzburg
(Gorven J and Pillay AJ) against both their conviction and sentence. The
appeal succeeded partially. Their conviction and sentence in respect of
the robbery with aggravating circumstances and the charges of attempted
murder were confirmed but the conviction for the unlawful possession of
firearms was set aside. In respect of the latter charges, the court found
that sections 41 and 52 of the Firearms Control Act 60 of 2000 which the
appellant and his co-accused allegedly contravened, only came into effect
on 1 July 2004. It therefore followed that the conviction for a
contravention of these sections on 9 February 2004 had to be set aside
and so, too, the 3-year sentence imposed therefor. The sentences imposed
by the magistrate for the robbery (15 years) and the attempted murders (5
years for each count) were upheld. The court ordered the two 5-year
sentences to run concurrently with the 15-year sentence imposed by the
magistrate on the charge of robbery with aggravating circumstances. The
court granted leave to the appellant and his co-accused to appeal to this
court against their conviction only. The appellant’s co-accused however
passed on before the hearing of this appeal. The present appeal therefore
only concerns Mr Ngcamu, who was the first appellant in the court below
and it is convenient in this appeal to refer to him simply as ‘the
appellant’.

1 Section 4 sets out a list of ‘firearms and devices [that] are prohibited and may not be possessed or
licensed in terms of this Act’, subject to certain exceptions.
2 Section 5 sets out a list of ‘devices [that] are not regarded as firearms.’ Although the firearms found
in possession of the appellant and his co-accused, fell within the prohibited ‘devices’ the State had the
difficulty that the operative sections (4 and 5) which made it an offence to possess only came into
effect on 1 July 2004.

[3] The charges of robbery with aggravating circumstances and
attempted murder arose from an incident at a BP filling station and garage
in Clare Estate on the morning of 9 February 2004. At about 10:15 Mr
Dingaan Mabuza and Mr Tobias Mhlongo employed by Coin Security, a
cash-in-transit company, arrived at the above premises. Mhlongo alighted
from the vehicle in order to remove the cashbox from the drop-safe
containing cash and replace it with an empty cashbox. Mabuza remained
at the wheel. While Mhlongo was on the forecourt he was accosted by
two men armed with firearms. They pointed their firearms at him and
took the laden cashbox and his firearm from him by force. They then ran
to a silver-grey Honda Ballade which was parked on the edge of the
garage forecourt with its doors open. It is not clear how many occupants
were in the vehicle after the two robbers entered. There was however one
other person in the vehicle, the driver.

[4] As the vehicle moved away Mabuza gave chase. He suspected that
the vehicle belonged to the appellant. It was a Honda Ballade, the same
make as the appellant’s and bore the same colour, the only difference
being that it had ‘ND’ (Durban) registration plates, whereas the
appellant’s vehicle was Mpumalanga registered, with ‘MP’ registration
plates. As he continued the chase, one or more persons in the Honda fired
shots at him. Mabuza returned fire, shattering the Honda’s rear window
and causing the driver of the Honda to turn and look behind towards
Mabuza. Mabuza then recognised the driver as the appellant, whom he
knew well.

[5] Mabuza’s chase was unsuccessful as he lost the getaway vehicle in
the traffic. The vehicle was subsequently found abandoned in Clermont, a
township near Durban. Upon inspection by Inspector Duma Makhaye of

the Pinetown Police he found that ‘ND’ registration plates were stuck on
top of its original plates bearing registration number CMT 412 MP, with
which the police were able to trace the appellant as the owner. Makhaye
handed the matter over to the Serious and Violent Crimes Unit, which
took charge of the case. Upon searching the vehicle, Inspector Thabethe
of that Unit found a Coin Security metal seal underneath the driver’s seat
and some personal documents belonging to the appellant, which
displayed his residential address: 26 Gillian Court, 6 Mc Arthur Street,
Durban.

[6] Inspector Thabethe, the investigating officer, thereafter made
several attempts to contact the appellant, without success. He visited the
appellant’s apartment on two occasions but could not find him. He left
messages for the appellant to contact him but the appellant did not
respond. About a week later on 15 February 2004, Thabethe and other
police officers visited the appellant’s apartment and arrested him for the
robbery and the other related charges referred to above.

[7] In his defence the appellant denied that he was the driver of the
Honda Ballade used in the robbery. He admitted that the vehicle belonged
to him but alleged that it had been taken away from him by force in a
hijacking, on the morning of 9 February 2004 ─ the day of the robbery ─
at about 08:45 at Dududu. The robbery took place at about 10:15 that
morning. Indeed it was common cause that he had reported the hijacking
incident at Amanzimtoti Police Station that day at about 14:30. The
hijacking complaint was later transferred to the Scottburgh Police Station,
as Dududu fell within Scottburgh.

[8] Both the magistrate and the high court rejected the appellant’s
version that he had been hijacked as a red herring and accepted Mabuza’s
identification of the appellant as the person who was driving the Honda
Ballade used in the robbery. The question in this appeal is whether there
is a reasonable possibility that the appellant’s version might be true. Of
course if that is the case, then it would mean that Mabuza was mistaken,
and that the appellant was not the driver of the getaway vehicle.

[9] Counsel for the appellant submitted that the evidence of Mabuza
had to be approached with caution given the fallibility of human
observation. He drew attention to a number of features in the evidence
which gave rise to the possibility that Mabuza might have made a mistake
in his identification: He said Mabuza was describing a mobile scene
through an armoured glass; there was exchange of gun fire; the getaway
vehicle was not very close; and the appellant was in the front seat during
the chase.

[10] It is true as was laid down by this court in the classical case of S v
Mthetwa3 that because of the fallibility of human observation, evidence of
identification is approached by the courts with some caution. In this
regard Holmes JA said:
‘It is not enough for the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his opportunity for observation,
both as to time and situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility, the accused’s face, voice, build,
gait, and dress; the result of identification parades, if any; and, of course, the evidence
by or on behalf of the accused. The list is not exhaustive. These factors, or such of

3 1972 (3) SA 766 (A) at 768 A-C; See also D T Zeffertt A P Paizes and A St Q Skeen The South
African Law of Evidence 5ed (2003) p 142.

them as are applicable in a particular case, are not individually decisive, but must be
weighed one against the other, in the light of the totality of the evidence, and the
probabilities; see cases such as R. v. Masemang, 1950 (2) S.A. 488 (A.D.); R. v.
Dladla and Others, 1962 (1) S.A. 307 (A.D.) at p. 310C; S. v. Mehlape, 1963 (2) S.A.
29 (A.D.).’
In the present matter and on the totality of the evidence I do not think that
there is any possibility of Mabuza having been mistaken as to the identity
of the appellant. He and the appellant had worked together for Coin
Security until approximately a week before this robbery and had on
occasion been, a crew together in the same Coin Security vehicle. They
were friends and came from the same area, which was attested to by the
appellant himself in his evidence. In response to a question in cross
examination he said of his relationship with Mabuza:
‘He is my friend, we grew up together. We drink together. We attend functions
together’.
There can therefore be no question that Mabuza and the appellant knew
each other well.

[11] The factors mentioned by counsel taken singly or cumulatively do
not detract from the reliability of Mabuza’s evidence of identification of
the appellant. The incident occurred in broad daylight; although there was
an exchange of gunfire Mabuza did not feel threatened because he was
seated in a bulletproof vehicle; his view to the vehicle was not impeded
by the armoured glass as suggested by counsel; he was able to observe an
‘ND’ registration plate that was stuck on the original registration plates of
the Honda; if he could observe the registration plates without any
difficulty ─ and this was not disputed ─ there is no logical reason why he
could not identify the face of somebody who was well known to him.
During the chase Mabuza was as close as 8 to 10 metres from the Honda
and his view was not obstructed in any way especially after its rear view

windscreen was shattered by the shots he fired at it. It is true as counsel
argued that the scene was mobile but it is clear that the events were not
taking place at such a frenetic pace that Mabuza could have made a
mistake as to what was happening. Counsel’s submission that Mabuza
had to make split-second observation is clearly an over exaggeration.

[12] In my view on a conspectus of all the evidence in this case, the
conclusion is unavoidable that the appellant participated in the robbery
using his own vehicle. When he realised that he had been identified he
opened a false charge alleging that he had been hijacked, which never
occurred.

[13] It is little wonder that his version that he was hijacked does not
bear scrutiny. It is riddled with serious flaws. According to the appellant,
he was hijacked in the early morning at 08:45 but he only reported the
incident at 14:30 in the afternoon at Amanzimtoti Police Station, which
was further away from the scene of the robbery. Although the Dududu
main road where he was hijacked is only some 3 to 4 kilometres from
Scottburgh Police Station, he for some inexplicable reason, elected to
report the incident at Amanzimtoti Police Station in a different area, a
long way away from Scottburgh, some five hours later, despite the fact
that he got a lift from the scene of the robbery to convey him to
Amanzimtoti Police Station. It is also not clear why it took him so long to
report the incident.

[14] The appellant’s conduct after the hijacking reflects an inexplicable
lack of interest in contacting the police. After the recovery of his vehicle
soon after the robbery, police left messages at his apartment for him to
contact them but he failed to do so. The police only managed to track him

down when they arrived at his apartment on 15 February 2004 when he
was eventually arrested. When asked about the reason for his failure to
respond to messages left by the police he replied that he did not know
why the members of the Serious and Violent Crimes Unit were looking
for him, a not so convincing response. Why should it matter which police
unit was looking for him ─ if he had laid a complaint with the police
concerning his vehicle and he was to be informed that it had been
recovered? It seems as if the appellant was trying to keep as far away
from the police as possible ─ strange behaviour for someone who in the
ordinary course of events would have been delighted that his vehicle had
been recovered and so soon after the hijacking.

[15] Another strange feature of this robbery, mentioned by the
magistrate in his judgment, is that the false registration plates were stuck
over the original plates. On the probabilities it is unlikely that the
hijackers would have done this if they wished to use the vehicle to
commit a robbery. In all probability they would have ripped off the
original registration plates and replaced them with false registration plates
before using the vehicle and this would have enabled them to avoid early
detection. What the robbers did here, on the appellant’s version, as found
by the magistrate, correctly in my view, is consistent with the conduct of
an owner who did not want his vehicle to be lost in the system once it is
recovered. This conclusion is reinforced by the finding in the vehicle of
the appellant’s documents with his address on them. I agree with the
magistrate that the appellant threw a red herring to the investigating
officers on his robbery charge by having to report the case of a hijacking
at Amanzimtoti Police Station, which never occurred.

[16] The high court’s rejection of the appellant’s version is also
unassailable. It found that the appellant’s version if true, required the
coming together of the following unlikely coincidences. The appellant’s
vehicle is hijacked that morning. It is then used within a short time as the
getaway vehicle in the robbery. By chance the victims of that robbery are
his former employers, whose employment he had left a few days before.
One of the robbers in this robbery is armed with a weapon which is a
standard issue to the employees of Coin Security. What is more, the
driver of the getaway vehicle turns out to be somebody who looks
remarkably like him, so much so, that Mabuza who knew the appellant
well and in consequence could not be easily mistaken. On this
identification, by mistake misidentifies this driver as the appellant. Pillay
AJ correctly concluded, in my view, that the combination of
circumstances is so far fetched that the hijacking version cannot
reasonably possibly be true. The conclusion reached by both courts below
in their rejection of the appellant’s version can therefore not be faulted.

[17] Counsel for the appellant also criticised Mabuza for not informing
the investigating officer, Inspector Thabethe at the scene, that the person
whom he had seen driving the getaway vehicle was the appellant. What
counsel overlooked is the fact that Mabuza had immediately informed the
controller Rashid by radio control from the scene that the person he saw
driving the getaway vehicle was the appellant.

[18] I am satisfied that both of the courts below were correct in
accepting the evidence of Mabuza in his identification of the appellant as
the driver of the Honda Ballade used by the robbers and in their rejection
of his version that he was hijacked.

[19] I also do not have any difficulty with the conviction on the charge
of attempted murder in respect of Mabuza. Shots were fired at him from
the getaway vehicle in order to discourage him from pursuing the Honda
Ballade. It matters not that he was in an armoured vehicle and that he did
not believe that he was at risk of injury or death from this gunfire as the
bullets could not penetrate the armoured vehicle. The shooter had the
requisite criminal intent even if they were attempting the impossible.

[20] What troubles me however is the conviction of attempted murder
charge in respect of Mhlongo (count 2). There was no evidence that the
robbers fired any shots at him. In his evidence Mhlongo repeatedly stated
that the shots from the Honda Ballade were not directed at him but at
Mabuza who was driving the armoured vehicle. When questions were put
to counsel for the State as to the basis upon which the appellant was
convicted on this count, she was driven to concede, correctly in my view,
that the conviction thereon was not sustainable. Accordingly the
appellant’s appeal against the conviction on this count is good and the
conviction thereon falls to be set aside.

[21] In the result the appeal against the conviction on the counts of
robbery with aggravating circumstances and the attempted murder in
respect of Mabuza fails but the appeal against the conviction on the count
of attempted murder in respect of Mhlongo succeeds.

[22] Accordingly the following order is made:
1.
The appeal against the conviction of robbery with aggravating
circumstances (count 1) and attempted murder in respect of Dingaan
Elphas Mabuza (count 3) is dismissed.

2.
The appeal against the conviction on count 2 ─ the attempted
murder in respect of Tobias Dumisani Mhlongo ─ is upheld and
paragraph 1 of the order of the court a quo is substituted with the
following:
‘1.
The appeal of both appellants against their conviction and
sentences in respect of count 2 is upheld.’

_____________________

K K Mthiyane

Judge of Appeal

APPEARANCES

APPELLANTS:
P Misselhorn

Instructed
by
Legal
Aid
Board,
Pietermaritzburg

Legal Aid Board, Bloemfontein

RESPONDENT:
(Ms) A A Watt
Instructed by The Director of Public
Prosecutions, Pietermaritzburg
The Director of Public Prosecutions,
Bloemfontein