Court name
High Court of eSwatini

Rex v Ngcobo () [2000] SZHC 41 (05 April 2000);

Law report citations
Media neutral citation
[2000] SZHC 41
Coram
Sapire, CJ









1


SWAZILAND
HIGH COURT


Rex


vs


Simon
Ngcobo


Cri.
Trial No. 52/1999


Coram
Sapire, CJ


For
Crown Mr. Sibandze


For
Defence Mr. C. Ntiwane


JUDGMENT


(05/04/2000)


The
accused, one Simon Ngcobo, stands indicted on two counts. The first
is the theft of a motor vehicle and the second count is one of
robbery. No more need be said about the first count as the
prosecution led no evidence whatsoever to connect the accused with
the commission of the offence alleged, and at an earlier stage of the
trial I found him not guilty on this charge.


As
far as the count of robbery (count 2), is concerned, evidence was led
by the crown and the accused himself gave evidence.


There
were two eye witnesses to the robbery, one was Mnisi and the other
one was Mdluli. There was a third witness Mabaso, who was the Manager
of the bank in which the robbery took place. Although he was an eye
witness he was not able to identify any of the robbers.


2


There
can be no doubt whatsoever that there was a robbery on the 23rd
April, 1998 at the Simunye Standard Bank in the Lubombo District and
that the robbers made off with nearly 2 million Emalangeni. The
amount stated in the indictment is E1,965,580.72. But the evidence is
of a slightly different amount. Little turns on the exact amount. But
the amount taken is very substantial.


There
is uncontested evidence as to how the customers and staff of the bank
were threatened and the manager was forced to open the security doors
permitting the money to be taken. The witnesses were forced to
participate in the process. The assailants were clearly armed and one
of them appears to have acquired his arm from one of the eye
witnesses whose pistol was removed from him.


The
witnesses made reports to the Police and nothing further was heard
until some months later when three persons, Thami Dlamini, George
Mahlasela and the accused were arrested. They had landed on a flight
from Johannesburg at Matsapha. Officials perceived something
suspicious about the three persons. It is not clear what the
suspicion was. They were stopped and the bags which they were
carrying were examined. Each of the bags contained money mostly in
notes issued by the central bank of Swaziland. Most of the money was
in Thami's bag while George Mahlasela's bag contained much less. The
black bag carried by the accused person contained E15 412.68.


They
were arrested and subsequently charged with this offence.


For
some reasons unexplained to this court Thami is apparently in
Johannesburg while George, according to the evidence, is dead having
been shot in circumstances which were not described to this court.


The
question now is, whether the accused person has been satisfactorily
identified as one of the robbers.


After
the arrest of the three persons, identification parades were held.
The evidence as to the conduct of the parades is that they were held
in the correct manner in that every precaution was taken to ensure
that the suspects could not be identified


3


or
pointed out other than by recognition by the witness in controlled
conditions. Precautions were taken so that the witnesses could not
communicate among themselves as to who they had pointed out or
anything else that happened on the parade.


The
evidence given by Fakudze who was in charge of the parade relevant to
this case was that the suspect was the accused. The parade was held
in the Simunye Magistrate Court room on the 11th July 1998 four
months after the robbery had taken place. The particulars of what
took place on the parade was recorded by Fakudze on the Police form
which is provided for this purpose.


The
first witness apparently called was Simon Mdluli who had testified in
this court that he had indeed pointed out the accused on the parade
as one of those involved in the offence. This evidence was confirmed
by Fakudze.


The
next witness according to the evidence of Fakudze is that the second
witness was Victor Mabaso who failed to identify the suspect.


Mnisi
himself who claimed to have pointed out the accused was supported by
Fakudze who confirmed that this happened.


In
regard to the pointing out by Mdluli, the accused when giving
evidence did not deny that he had been pointed out but suggested that
he suspected that the witness may have been informed of who the
person was who he should point out. There is nothing to substantiate
such a suspicion. The pointing out on the parade seems to have been
regular in every material respect.


As
far as the identification by Patrick Mnisi is concerned the accused
denies that this took place at all and says that Mnisi did not point
out anybody. This is in direct conflict with what Mnisi himself said
and what was observed by Fakudze while carrying out the parade. There
is no reason why Mnisi or the officer should deliberately lie. I find
no basis for any reasonable doubt in accepting that both of them
would conspire to present false evidence to this court.


4


The
accused's denial is in direct conflict with two acceptable witnesses.


There
is one aspect of the parade to which I should make a reference and
that is that a Police Officer was present to take photographs of what
took place. This man is supposed to be a Government photographer. The
work that he produced is entirely useless.

He
attributes this to the batteries in his camera being weak so that the
flash was not working properly. It is amazing how an officer should
go on such an important mission with expensive but defective
equipment. In any event I am not sure how far the photographs would
have taken the matter. What would be of more use in these
circumstances is if a television cassette were taken of the
continuous conduct of the persons on the parade. A picture of one man
with his hand on the shoulder of another does not indicate what went
on before. The pictures are out of focus and take in poor light.


Mr.
Ntiwane who appears for the accused person said that this evidence
should operate in favour of the accused. He also said that another
aspect of this witness's evidence is in conflict as it is with the
other evidence given because the photographer said that all the
witnesses including Mabaso identified the accused. I do not see how
this evidence could in any way damage the evidence of the witnesses
who said that they pointed out the suspect, and of Fakudze confirming
that this happened. The parade took place four months after the
event.


Mr.
Ntiwane has been strenuous in his argument that the court must be
very careful in considering the evidence of identification. He has
correctly referred me to R v Shekelele & Another in which the
question of identification was discussed by the presiding judges.


A
great deal of Mr. Ntiwane's attack on the identification based on the
fact that the accused has a scar or depression on his forehead at or
near the hairline, and this was not mentioned by the identifying
witnesses. It is true that this blemish on his face is visible on the
inspection, but it is not necessarily something which could be
described as so outstanding a feature that it could not be missed by
somebody. But in any event neither of the identifying witnesses made
mention of this scar.


5


It
is also true that neither of the witnesses were able to say anything
more than in general terms that they recognise the person and were
unable to mention any distinguishing features which separated them
from other people of similar description. But the observations of
Dowling J in the case cited relate to cases where there is an
identification otherwise than on a parade. The purpose of an
identification parade is to test whether recognition by a witness who
claims to be able to identify somebody or who says "I will
recognize him if I see him again" is reliable. That is why the
identification parade was held in this case. Each of these two
witnesses saw the robbers for the first time, at the time of the
robbery. Much argument was directed to the circumstances which it was
said would make identification difficult. I must however find despite
everything which may have militated against recognition, both the eye
witnesses identified the accused. The identification was made
independently of each other and in circumstances which may be
described as laboratory conditions calculated to prevent any
injustice. The corroboration by theses witnesses of each other cannot
be coincdence.


Notwithstanding
this positive identification the accused denies that he was a
participant in the commission of the offence. That cannot reasonably
possibly be true. The coincidence of the two independant
identifications rules out the possibility of a mistake.


I
do not have to consider the accused's explanation for his possession
of the money. The behaviour of the accused and his companions at the
airport which gave rise to the suspicion is in no way relevant to my
assessment of his participation in the robbery. His account of his
possession of a comparatively large amount of money, unlikely as it
seems, plays no part in the logical assessment of his guilt. The
evidence of the two eye witnesses and their identification places the
accused on the scene of the robbery and as a participant therein
beyond reasonable doubt.


I
accordingly find him guilty of robbery on count 2.


SENTENCE.


6


The
question of sentence is always a difficult one. A bank robbery is a
special type of robbery which has this feature, robbers find it a
comparatively easy way of getting a lot of money. Morally it is not
more serious than the robbery where parties are invaded in their
homes where the pickings are not likely to be as great. From the
community point of view it is perhaps more serious where an
individual's house is intruded, and he is threatened with violence by
a robber or robbers armed with weapons.


On
the other hand the proceeds of a successful bank robbery, are so much
greater that where the culprits are convicted the sentence must be
such, so to nullify the effects of the "reward".


It
is true as Mr. Ntiwane says that nobody was actually injured or
seriously injured in the commission of this offence. This is however
is so, largely because the bank staff are trained not to "play
the hero" and to submit quietly in order to avoid injury. But
the robbers were armed. Even where there is no injury the sentence
for armed robbery must be such, as not only to punish the accused but
by example to make others contemplating bank robberies to know that
the risks are very great. The public would be outraged to think that
a bank robber who steals short of E2m would be let out after a very
short time to enjoy the fruits of the money, of which little if any,
has been recovered in this case.


The
accused is a first offender. The offence was obviously planned. The
culprits had ample time to contemplate the criminality and
consequences of their acts. Bank robbery is not an offence in which
you get a second chance. No question of contrition arises in the
present circumstances.


It
is an unfortunate feature of the administration of justice that
people spend a long time in prison as waiting trial prisoners and
this has to be taken into account in passing sentence. I intend to
deal with this in the usual fashion by ordering that the sentence
which I am about to impose is to be deemed to have commenced on the
date of the accused's arrest. He was taken into custody on the 8th
July 1998.


7


Relevant
considerations are the fact that no harm was done in the physical
sense to the victims, but also that the money which was stolen has
not been recovered.


The
sentence which I impose is 15 years imprisonment and it is deemed to
have commenced on the 8th of July, 1998.


Sapire,
CJ