Case No: A475/2011

DPP Ref No: JPV 2000/0024

Date of Appeal: 10 May 2012

In the matter between:

STEVEN S. MAKHUBU ….............................................................Appellant

And

THE
STATE ….................................................................................Respondent

JUDGMENT

C. J. CLAASSEN J:

INTRODUCTION
1. On Wednesday, 27 March 1999, a Khulani Springbok Patrols armoured
vehicle arrived at Witwatersrand University to collect money. While the
money was being loaded into the vehicle, it was attacked by
several armed individuals. Various shots were fired by the assailants. The
security guards returned the fire. During the cross-fire, one of the security
guards and one of the attackers were killed.

2. The attackers took the money and loaded it into one of the escape
vehicles. The attackers also loaded their comrade in the escape vehicle
and dumped his body somewhere in Eldorado Park.

3. Five men were charged with two counts of murder, three counts of
attempted murder, two counts of robbery with aggravating circumstances
and four counts of contravening the Firearms Act 75 of 1969. The trial
commenced before Heher J (as he then was) on 17 May 2001 in this
court. On 30 October 2001 Heher J delivered judgment.

4. Steven Sechaba Makhubu was arraigned in the court a quo as accused 1.

He was convicted in the court a quo on count 1, i.e. murder, count 4, i.e.
attempted murder, count 6, i.e. robbery with aggravating circumstances,
count 7, i.e. robbery with aggravating circumstances and counts 8, 9, 10
and 11, i.e. two counts of unlawful possession of machine guns, one
count of illegal possession of arms and one count of illegal possession of
ammunition. The next day he was sentenced to life imprisonment, twenty
 years’ imprisonment effectively on counts 4, 6 and 7 and fifteen years’
imprisonment effectively on counts 8, 9, 10 and 11.

5. Accused 1, the appellant, was granted leave to appeal against both his
convictions and sentences. Due to the absence of Heher J, the application
for leave to appeal was heard and granted by Satchwell J.

ISSUES ON APPEAL

6. The single question for decision is whether or not the court a quo was
correct in finding that the appellant was one of the attackers on the day of
the armed robbery. The appellant raised an alibi as a defence. This
defence was rejected largely on the basis of evidence that fingerprints
belonging to the appellant were found on the getaway vehicles. In this
regard the expert testimony of two fingerprint experts, Captain Abrahams
and Captain Nagel, was tendered by the State.

THE EVIDENCE

7. The evidence of Captain Abrahams that he had lifted a middle fingerprint

of the appellant’s left hand from the Khulani armoured vehicle, was
heavily criticised in the courta quo. He was given a copy of the print that
he had lifted (Exhibit “W”) and asked to describe the features which he
 said were the features seen in the fingerprints of accused 1. The court a
quo held as follows:

“It would not be an exaggeration to say that he made a botch of that attempt,
pointing out ridges that he previously described as bifurcations and
bifurcations that he described as ridges. His explanation for this was that he
cannot identify a bifurcation on a lifted print without looking at a print which is
known to be that of an accused. He testified that he does also look for
differences in prints.”

8. Needless to say, counsel for the appellant submitted in her heads of

argument that the court a quo misdirected itself in relying upon the
evidence of Abrahams. She submitted that he was fallible and
contradicted his evidence in chief in relation to characteristics of the
fingerprint compared to the admitted specimen of the appellant’s print.

9. I find it unnecessary to analyse the evidence of Abrahams and will for

purposes of this appeal accept that his evidence is unreliable and that it
stands to be rejected. However, that is not dispositive of the appeal.

10. The expert testimony of Captain Nagel was not criticised at all in the
heads of argument of counsel for the appellant. Captain Nagel was also
closely cross-examined in the court a quo. He stood his ground and did
not deviate from his evidence in chief. He testified that he was on the
scene of the crime shortly after it was committed. He lifted a fingerprint
from the Khulani vehicle at 14:36 on 24 March 1999. This fingerprint
pointed upwards and was found at the position which he described as
 approximately at point “P” on the photograph exhibit J35. He received a
set of the appellant’s fingerprint (Exhibit “U”) and compared the two prints.
He found that the left middle fingerprint of the two sets of prints was
identical. On exhibit “U” he indicated nine ridge marks which
corresponded to the appellant’s fingerprint (Only seven ridge marks are
required). On the day he gave evidence he took another set of the
appellant’s fingerprints and found that the left middle finger also coincided
with the two sets which he previously had seen. He further said that the
fingerprint which he had lifted from the Khulani vehicle was extremely
clear and that he was absolutely certain it belonged to the appellant.

11. Counsel for the appellant did not attack the evidence of Captain Nagel
in argument and rightly so. It would seem to me that his evidence was
beyond reproach and that the court a quo was justified in accepting his
evidence. In most criminal cases the court is favoured with the expert
testimony of only one fingerprint expert. It is therefore not strange to rely
on the single testimony of one fingerprint expert in convicting an accused.

12. The record placed before this court of appeal was incomplete. It
contained none of the exhibits. Despite this deficiency in the record,
counsel for the appellant submitted “that the appeal can be argued without
the said prints.” The wisdom of this approach was not questioned by
counsel for the State. In my view, this is not a practice which should be
allowed only in exceptional circumstances. The special circumstances that
persuaded me to continue with this appeal despite the incompleteness of
the record, are as follows:
 1. The appeal was argued within a very narrow ambit.1 It was sought to
upset the judgment of the court a quo only in regard to the fingerprint
evidence and more particularly, the evidence of only one of the
experts. No other evidence was under scrutiny. Once it is decided not
to place any reliance on the evidence of Abrahams, the exhibits
handed in by him become irrelevant.

2. Since the evidence of the other expert was not attacked, the exhibits
handed by him also became irrelevant for the purpose of this appeal.

3. This matter has dragged on for eleven years. It is, in my view, of

paramount importance that finality should be reached in regard to the
guilt of the appellant. He has, in the meantime, served more than ten
years of his sentence. Although the particular long delay is
deprecated, it would not be in the interest of justice to delay the matter
further for purposes of compiling a complete record. In my view, the
record is adequate for purposes of dispensing justice in this appeal.

13. Finally, the expert evidence of Nagel is to be preferred to that of

Abrahams for another reason. Nagel lifted the print on the day of the
incident while it was still fresh. Abrahams lifted prints the next day on 25
March 1999. The prints were therefore at least twenty four hours old. In
addition, Abrahams had only seven years’ experience whereas Nagel had
eleven years of experience in the discipline of lifting and comparing
fingerprints. In my view, the opinion evidence of Nagel as an expert
complied with the requirements set out in S v Gumede 1982 (4) SA
561 (T).
14. The appellant could not admit or deny that these were in fact his
fingerprints. He did not dispute the expert qualifications of Nagel. He was
unable to give any acceptable explanation for the appearance of a
fingerprint on the Khulani vehicle which corresponded to his own
fingerprint. Since the appeal against the conviction of the appellant
centred around the evidence of fingerprints exclusively, the court a
quo was justified, in my view, to find that the fingerprints of the appellant
were found on the Khulani armoured vehicle on the day of the incident.
Since no other issue on the merits of the appellant’s conviction was
raised, I conclude that the appeal against the convictions must be
dismissed.

SENTENCE

15. The sentence passed by the court a quo does not induce a sense of
shock. Counsel for the appellant could not direct our attention to any
misdirection committed by the court a quo when passing sentence. In my
view, the cumulative effects of the various sentences were duly taken into
account by ordering that certain of the sentences were to be served
concurrently. In any event, the fact that life imprisonment was imposed on
count 1, caused the other sentences to be subsumed into such life
imprisonment. In such circumstances the cumulative effect of sentences
become of lesser importance.

16. In my view, the appeal against the sentences must also fail. I make the
following order:
The appeal against both the convictions and the sentences is dismissed.