Fanie Archibold Ndimande v The State

On 3 August 2003 a group of armed men wearing balaclavas attempted to rob the Amabele Spar in Ivory Park, Johannesburg. During the robbery a security guard was disarmed and fatally shot. The incident was recorded on in-store video cameras. The appellant, Fanie Archibold Ndimande, was later arrested and charged with murder, robbery with aggravating circumstances, attempted robbery, unlawful possession of a firearm and ammunition, and attempted murder. The State alleged that he was one of the perpetrators. The State’s case relied primarily on (a) the identification of the appellant by a security manager, Mr Hamilton Mbatha, who claimed to have recognised the appellant from video footage and later identified him in court, and (b) a pointing out allegedly made by the appellant to the police. The appellant disputed both, alleging that the identification was unreliable and that the pointing out was obtained after assaults and in violation of his constitutional rights, despite him having elected in a warning statement to remain silent and make a statement in court.

The appeal was upheld. The order of the full court was set aside and replaced with an order upholding the appeal and setting aside the appellant’s conviction and sentence in their entirety.

The case reinforces constitutional protections in criminal procedure, particularly the exclusion of evidence obtained in violation of the right to silence and the right to a fair trial. It underscores the strict caution required when dealing with single-witness identification and dock identification, especially where objective evidence such as video footage is not produced. The judgment affirms the importance of s 35(5) of the Constitution in safeguarding the integrity of the criminal justice system, even in serious violent crime cases.