Nduna v The State

The appellant was convicted of two counts of armed robbery in the regional court in Cape Town and sentenced to 15 years' imprisonment on each count. The first robbery occurred on 11 June 1999 when complainant David Alexander was robbed of approximately R4 000 after drawing money from a Nedbank branch in Cape Town. A man from a white Venture van (registration CA 766235) produced a firearm and robbed Alexander of the cash. The second robbery occurred on 26 January 2007 when complainant Joshua Abrahams was robbed of R54 300 after drawing cash from Standard Bank at N1 City. Three armed men in a Mercedes Benz vehicle broke into his Isuzu bakkie (registration CA 455247) and stole the money from the cubby hole. Neither complainant could identify the perpetrators. The only evidence linking the appellant to both robberies was fingerprint evidence: his left thumb print was found on the left door of the Venture van used in the first robbery, and his right palm print was found on the right side canopy of the Isuzu bakkie involved in the second robbery. The appellant appealed his convictions to the Western Cape High Court, which dismissed the appeal but reduced the effective sentence from 20 years to 15 years' imprisonment (with sentences running concurrently). The appellant testified he worked as a bread delivery assistant in 1999 and was unemployed in 2007, offering innocent explanations for how his fingerprints could have been on the vehicles.

• Whether fingerprint evidence alone was sufficient to prove guilt beyond reasonable doubt on two charges of armed robbery
• Whether the inference of guilt was the only reasonable inference to be drawn from the circumstantial evidence
• The probative value of fingerprint evidence in the absence of evidence regarding the age of the fingerprints
• Whether evidence of modus operandi on one count could be used to establish guilt on another count, or whether this constituted impermissible use of similar fact evidence
• Whether the two cardinal rules in R v Blom were satisfied in determining guilt from circumstantial evidence

The appeal against conviction was dismissed. The convictions on both counts of armed robbery were upheld.

Fingerprint evidence, when properly authenticated and unchallenged, has significant probative value and can be sufficient to ground a conviction for robbery even in the absence of eyewitness identification or evidence regarding the age of the fingerprints. Where an accused's fingerprints are found on vehicles used in multiple offences with a consistent modus operandi (robberies of persons who had just withdrawn cash from banks, committed by armed men using vehicles), and the accused provides no credible explanation for the presence of those fingerprints, the only reasonable inference consistent with the proved facts is that the accused participated in those offences. Evidence of modus operandi is admissible and relevant to prove identity where it demonstrates a systematic course of wrongful conduct, provided such evidence is used to establish identity rather than merely to prove propensity to commit crime. The coincidence of fingerprints on vehicles used in separate but similar robberies, even if separated by years, is explicable only on the basis of the accused's participation in both crimes, particularly where the pattern of offending is distinctive and consistent.

The court noted that the application for discharge under section 174 of the Criminal Procedure Act 51 of 1977 at the close of the state's case was 'ill-conceived and had been rightly refused', given the strength of the fingerprint evidence. The court referenced the case of Jonginamba v The State (Case No A389/10), decided by the Western Cape High Court, which concerned the same victim (Abrahams) and the same robbery incident as the second count in this case, but where Jonginamba's conviction was set aside on the basis that his palm print alone was insufficient evidence. Ebrahim AJA expressly declined to express a view on the correctness of that decision, noting that the evidence in the present case was different due to the additional charge of robbery and the appellant's lack of credible explanation. This suggests the court may have had reservations about the Jonginamba decision but found it unnecessary to address directly.

This case is significant in South African criminal law for establishing principles regarding: (1) The probative value of fingerprint evidence as sufficient to ground a conviction even in the absence of other direct evidence linking an accused to a crime. (2) The application of the Blom test for circumstantial evidence in cases involving fingerprint evidence. (3) The admissibility of similar fact evidence and modus operandi evidence across multiple counts where such evidence is relevant to establish identity of the perpetrator rather than merely to prove propensity to commit crime. (4) The court's approach to coincidence in criminal cases - where an accused's fingerprints are found on vehicles used in multiple robberies with similar patterns, the only reasonable inference is participation in those crimes. (5) That the absence of evidence regarding the age of fingerprints does not necessarily diminish their probative value where the overall circumstances point to guilt. The judgment reinforces that fingerprint evidence, when properly authenticated and considered in the context of the overall evidence including modus operandi, can be sufficient to sustain a conviction beyond reasonable doubt.