On 9 February 2004, at approximately 10:15, two armed men robbed a cash-in-transit vehicle at a BP filling station in Clare Estate, Durban. They took a cashbox and a firearm from Mr Tobias Mhlongo, an employee of Coin Security, and fled in a silver-grey Honda Ballade. Mr Dingaan Mabuza, another Coin Security employee who remained in the vehicle, gave chase. During the chase, shots were fired at Mabuza from the Honda Ballade, and he returned fire, shattering the rear window of the getaway vehicle. Mabuza identified the driver of the Honda as Thulani Ngcamu, the appellant, whom he knew well as a former colleague and friend who had worked for Coin Security until approximately one week before the robbery. The getaway vehicle was later found abandoned in Clermont township. Police discovered the vehicle bore false 'ND' registration plates stuck over the original 'MP' plates, which traced the vehicle to the appellant. Personal documents belonging to the appellant were found in the vehicle. The appellant reported the vehicle as hijacked at Amanzimtoti Police Station at approximately 14:30 on the same day, claiming he had been hijacked at Dududu at 08:45 that morning. The appellant and a co-accused (Sifiso Shange) were convicted in the regional court of robbery with aggravating circumstances, two counts of attempted murder, and two counts of unlawful possession of firearms.
1. The appeal against conviction for robbery with aggravating circumstances (count 1) and attempted murder in respect of Dingaan Elphas Mabuza (count 3) was dismissed. 2. The appeal against conviction for attempted murder in respect of Tobias Dumisani Mhlongo (count 2) was upheld, and the conviction on count 2 was set aside. The sentences imposed by the magistrate (15 years for robbery, 5 years for attempted murder running concurrently) remained in force in respect of the counts where convictions were upheld.
The binding legal principles established are: (1) Identification evidence must be approached with caution due to the fallibility of human observation, but where a witness knows the accused well, had good opportunity to observe under favourable conditions (daylight, close proximity, unobstructed view), and immediately reports the identification, such evidence can be highly reliable. (2) In assessing identification evidence, courts must weigh all relevant factors (lighting, visibility, proximity, opportunity for observation, prior knowledge, mobility of scene, corroboration) against each other in light of the totality of evidence and probabilities. (3) An alibi defence must be assessed against the totality of the evidence and objective probabilities; where it requires the acceptance of multiple far-fetched coincidences and is contradicted by the accused's own conduct and objective evidence, it can be rejected as not reasonably possibly true. (4) A conviction for attempted murder requires evidence that the accused directed their actions towards the specific complainant with the requisite intent; a conviction cannot stand where there is no evidence that the accused targeted or attempted to harm that particular complainant.
The court made obiter observations regarding the application of the doctrine of impossibility to attempted murder, noting that it matters not that the victim was in an armoured vehicle and did not believe he was at risk of injury or death, as 'the shooter had the requisite criminal intent even if they were attempting the impossible.' The court also observed on the implausibility of the hijackers' alleged conduct in merely sticking false registration plates over the original plates rather than removing them entirely, noting that this was 'consistent with the conduct of an owner who did not want his vehicle to be lost in the system once it is recovered.' The court further noted the suspicious coincidence that the robbery targeted the appellant's former employers (whom he had left only a week before) and that one of the robbers was armed with a weapon that was standard issue to Coin Security employees.
This case is significant in South African criminal law and evidence for its application of the principles governing identification evidence established in S v Mthetwa 1972 (3) SA 766 (A). The judgment demonstrates the proper approach to assessing the reliability of identification evidence, emphasizing that courts must consider multiple factors including: the witness's prior knowledge of the accused, lighting and visibility, proximity, opportunity for observation, and the overall probabilities. The case illustrates how courts should approach alibi defences and assess their credibility in light of the totality of the evidence and objective circumstances. It reaffirms that where an identification is made by a witness who knows the accused well, under favourable viewing conditions, and where the alibi defence is implausible and contradicted by objective evidence, courts are entitled to reject the defence and uphold the conviction. The case also demonstrates judicial vigilance in ensuring that convictions are supported by evidence, as shown by the court's willingness to set aside the attempted murder conviction in respect of Mhlongo where no evidence supported it.