In S v Mdlongwa232 the appellant, Mr Mlungisi Mdlongwa, and four other persons were charged in the Regional Court Dundee with robbery with aggravating circumstances, unlawful possession of firearms and ammunition. The appellant and other accused were convicted of robbery with aggravating circumstances and acquitted on 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.
The court granted him leave to appeal to the Supreme Court of Appeal against both the conviction and sentence.233 The sole issue for determination on appeal was whether the appellant had been properly identified as one of the robbers.234 The appellant challenged the state’s case on three legs:
First, it was submitted that the evidence of the security officer, Sikhumbuzo Mbatha, who had been on duty at the NBS Building Society where the robbery took place, was unsatisfactory and contradictory, and that no reliance could be placed on his dock
232 2010 (2) SACR 419 (SCA). 233 Par [1]. 234 Par [5].
identification, especially since no prior identification parade had been held. The court held that the evidence was in line with the video footage.
Secondly, it was argued that the expert called by the state as a facial comparison expert, Inspector Naude, was no “expert”, as she lacked academic qualifications and that her findings were thus unacceptable because they were not of a generally accepted standard. The court held that there was no reason to doubt the accuracy of the findings of Inspector Naude.
Thirdly, the appellant contended that the video footage of the robbery was not the original and should not have been admitted in evidence. The court held that the video footage was original and constituted real evidence.
In S v Ramgobin and others 1986 4 SA 117 (N) it was held that for video tape recordings to be admissible in evidence it had to be proved that the exhibits were original recordings and that there was no reasonable possibility of ‘some interference’ with the recordings. In this case there could be no question that the aforesaid video evidence was admissible. The judge further noted that in his view no tampering took place with the video footage. Consequently, there appeared to be no reason to reject the authenticity of the footage downloaded by Viljoen from the surveillance cameras installed at the bank. The judge continued and remarked as follows235:
“In any event it need[ed] to 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 facial comparisons.
The court accepted that the appellant had been properly identified by the video footage.236
The court pointed out that photographs were taken by Inspector Khoza of the appellant and accused 5, ex post facto, two weeks after the incident and handed over to Inspector Ahmed, who 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 5, that there were 13 points of similarity between the photograph of the appellant (exhibit K) and the person appearing in the video footage and the photograph of accused 5 and the video footage. Based on her findings of points of similarity, she
235
Par [24].
236 Par [25].
concluded that the persons appearing in the video footage were the appellant and accused 5. The court accepted this form of identification.237
In reply to the argument that Inspector Naude was “no expert”, the judge opined that:
In this case there appears to be every reason to accept Inspector Naude as an expert. A lack of academic qualifications may sometimes be regarded as indicative of a lack of sufficient training, but this is not the case here, taking into account the vast experience that Inspector Naude accumulated over 30 years of which Inspector Naude testified that she was a police officer for 30 years. She has been stationed at 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. She had done over 500 facial comparisons. She has testified in court in a number of cases and this was her twentieth case238.
The court accepted her conclusions in that regard.239
The case of Mdlongwa indicates that the court accepts ascertainment of bodily features of a person even if an expert identifies the person from video footage using a photo of that person. This means that identification of a person can be conducted from video footage and a photograph using a method called facial comparison. This is another development in photo identification.
Van Heerden, 240 suggests that the value of a preliminary photo identification parade can be improved if, in conjunction with the general principles governing identification parades, the following conditions are met:
(a) The album must contain at least 10 photographs of people in ordinary civilian clothes.
(b) The photographs must bear no names or identifying signs.
(c) The album must later be an exhibit in court.
(d) The identified photograph must be compared carefully with the description given before the preliminary identification.
237 Par [17]. 238 Par [18]. 239 Par [18 and 19]. 240
᾽n Kriminalistieke Ondersoek van Falsiteit met Verwysing na die Probleem in Johannesburg (Unpublished DLitt et Phil thesis)(1967) Pretoria 312.
(e) If more than one witness is available, only one must be used for the preliminary investigation and the others must make their identifications at an identification parade.
Most of the proposals made by Van Heerden are already being applied by the police and the courts.241 In Mdlongwa the identification was done by using a photograph and video footage images.
In S v Ndika and Others242 the appellant contended that a policeman who had observed him as one of the multiple robbers who had burst into the police charge office had not had sufficient opportunity to observe and subsequently identify him. The court held that while it was true that the opportunity for observation of the physical features of the person whom the policeman professed to be able to identify was relatively short, there was certainly enough time for a person such as the policeman under personal threat of harm from the other robber to register the facial and other physical characteristics of that person. The policeman managed to identify the appellant from a set of eight photographs.
The court ruled on the use of such evidence in general that there was justified criticism of such photographic identification parades but if such a method was used, it was not axiomatic that the results were to be ignored. The court held that the evidence of the policeman as a witness was honestly given and it excluded any possibility of foul play in the sense that the police contrived to steer him in the direction of identifying the particular photograph rather than some other photograph. Marais, however, noted that a larger spread of photographs than eight would give greater assurance on the reliability of the identification.243
The rules of a photographic identification parade are similar to the normal identification parade except for the fact that at the photographic identification parade the arrested person or the accused is not at the parade in person and the person consequently does not have the right to legal representation.244