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VOL 32 NO 2 2019

TABLE OF CONTENTS

ARTICLES
Lirieka Meintjes-van der Walt & Mercy Chirwa Fingerprint
evidence under scrutiny: Issues raised by six international
forensic reports (Part 1) 155

Bright Nkrumah How did we get here? Reflections on the
UDHR and South Africans with albinism 181

Hendrik Lochner & Juanida Horne Regional court
magistrates’ recommendations for improving the efficacy of
taking statements from children 202

COMMENT
Khulekani Khumalo A commentary on the principles
underpinning the crime of public violence committed by means
of threat of violence 223

RECENT CASES
Pieter du Toit Criminal procedure 233
Lirieka Meintjes-van der Walt Law of evidence 245
Gerhard Kemp International criminal law 266
Marita Carnelley Illegal gambling 277

 SOUTH AFRICAN JOURNAL OF CRIMINAL JUSTICE

Table of Contents

Articles
Lirieka Meintjes-van der Fingerprint evidence under scrutiny:
Walt & Mercy Chirwa Issues raised by six international
forensic reports (Part 1) 155
Bright Nkrumah How did we get here? Reflections on
the UDHR and South Africans with
albinism181
Hendrik Lochner & Regional court magistrates’
Juanida Horne recommendations for improving the
efficacy of taking statements from
children202

Comment

Khulekani Khumalo A commentary on the principles

underpinning the crime of public
violence committed by means of threat
of violence 223

Recent cases

Pieter du Toit Criminal procedure  233

Lirieka Meintjes-van
der Walt Law of evidence  245
Gerhard Kemp International criminal law 266
Marita Carnelley Illegal gambling 277
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 SOUTH AFRICAN JOURNAL OF CRIMINAL JUSTICE

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1 CR Snyman Criminal Law 5ed (1990) 555.
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3 JM Burchell ‘Wilful blindness and the criminal law’ (1985) 9 SACJ 261.
4 S v Makwanyane 1995 (2) SACR 1 (CC).
5 S v Makwanyane supra (n4) at 478I-J.
6 Snyman op cit (n1) 179.
7 Burchell op cit (n3) 262.
8 Section 2 of the Criminal Procedure Act 51 of 1977. Cf s 29.
9 A Dhlamini Family Violence in South African Criminal Law LLM (Natal)
(1960) 30.
10 Dhlamini op cit (n9) 78.
Recent Cases 245

Law of Evidence
LIRIEKA MEINTJES-VAN DER WALT
University of Fort Hare

1 Admonition to speak truth

In S v Sangweni 2019 (1) SACR 672 (KZP), the appellant appealed
against his conviction of rape and a sentence of life imprisonment,
and the court had to decide whether the evidence of the complainant,
a girl who was nine years old when the rape was committed, and 13
when she testified, was admissible.
The court referred to s 164(1) of the Criminal Procedure Act and
to cases that dealt with this issue (paras [5]-[6]). In Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional
Development 2009 (2) SACR 130 (CC), (2009 (4) SA 222 (CC); 2009 (7)
BCLR 637; [2009] ZACC 8) (para [163]) Ngcobo J held that a person who
testifies must understand what it means to speak the truth, because if
she does not know ‘what it means is to speak the truth, the child cannot
be admonished to speak the truth and is, therefore, an incompetent
witness and cannot testify’ (para [6]). In response to a question put
to her by the magistrate, the complainant replied that she knew the
oath but did not know what the consequences would be ‘after taking
the oath’. Upon her answering that she knew the difference between
telling lies and telling the truth, the magistrate proceeded to admonish
her to tell the truth (para [7]).
Ploos van Amstel J held that establishing that the child witness
understands the notion of truthful evidence, assures the reliability of
such evidence. He stated that a child can only be admonished to tell
the truth if such a child indeed understands the notion of truthful
evidence. The issue in casu was whether the magistrate had done
enough to establish that the witness understood the difference
between telling the truth and telling lies and whether she understood
the potential consequences of telling lies (para [8]). Evidence given
by a child who does not comprehend the concept of truth, cannot be
regarded as reliable. Should evidence given under such circumstances
be admitted, it would undermine the accused’s right to a fair trial (para
[10]).
Merely asking the minor complainant whether she knew the difference
between telling lies and telling the truth, without establishing whether
she understood what it means to speak the truth, that it is important
to speak the truth, and that it is wrong to tell lies (para [11]) was
considered by the court to be inadequate and it, therefore, it was held
246 SACJ . (2019) 2
that the appeal succeeded and that the conviction and sentence were
set aside (para [12]).
Another case that dealt with the admonition to speak the truth is
S v Dlamini 2019 (1) SACR 467 (KZP). The appellant was convicted
on a charge of the rape of a 6-year-old girl and was sentenced to life
imprisonment
Counsel for the appellant, relying on S v Mhlongo (AR 272/14) [2015]
ZAKZPHC 16 (27 February 2015) submitted that responses provided
by an inquiry in terms of s 164 would demonstrate whether the child
understands and can differentiate between the truth and untruth,
and the consequences of telling untruths (para [3]). With reference
to S v Raghubar 2013 (1) SACR 398 (SCA) she submitted that it is the
duty of the presiding officer to consider the maturity of the child, the
intelligence of the child and whether the child possesses a proper
appreciation of the duty to speak the truth (para [4]). The court of
appeal held that compliance with s 162 is compulsory, except where
s 163, alternatively s 164 of the CPA, is complied with (para [6]). Upon
a question by the court a quo whether the complainant understood
what it meant to take the oath, the complainant’s response was in
the negative. With reference to S v Matshivha 2014 (1) SACR 29 (SCA)
(para [10]), Masipa J (Olsen J concurring) held that, where a witness
testifies without taking the oath properly, or without making a proper
affirmation, or without being properly admonished, their evidence
lacks the status and character of evidence and is inadmissible. This
principle was followed in S v Machaba 2016 (1) SACR 1 (SCA), ([2015]
2 All SA 55, [2015] ZASCA 60) (para [11]).
A prerequisite for the activation of s164(1) is that it has to be found,
based on an inquiry by the judicial officer, that the witness lacked
an understanding of the concept of truth and of the importance of
giving truthful evidence under oath. Should such an inquiry reveal
that the witness lacks an understanding of what the oath implies, the
judicial officer, according to Zondi AJA in Matshivha, should ascertain
whether the witness is capable of distinguishing between the truth
and a lie. Should the witness be capable of making this distinction,
such a witness should be admonished to speak the truth (para [12]).
The two-part enquiry, namely that ‘there must firstly be an enquiry
by the judicial officer to determine whether the witness understands
the nature and impact of the oath. Secondly, a finding must be made
from that inquiry, which finding would determine whether or not to
admonish the witness’, as was set out in S v Matshiva 2014 (1) SACR 29
(SCA), was not followed (para [13]).
The court held that the oversight by the court a quo to issue a
ruling in terms of s 162 did not constitute an irregularity, because
the provisions of s 162 provide compliance with s 164 as an option
Recent Cases 247

(para [14]). The court’s decision was based on the fact that s 162 can
be used in order to comply with the provision of s 164 (para [14]).
The court of appeal was satisfied that the inquiry conducted by
the court a quo adequately established that the child witness had a
sufficient understanding of the nature and import of the oath and that
the witness could distinguish between truth and lies (para [14]).
The court of appeal consequently held that the examination by the
magistrate was sufficient to ensure the reliability of the child witness’s
evidence (para [14]).

2 Single child witness and identification evidence

The second issue in S v Dlamini 2019 (1) SACR 467 (KZP) in respect of
the appeal against conviction, relates to the identity of the accused and
the application of the cautionary rule on the basis of the complainant
being a single child witness. The complainant who was six years old
at the time of the incident testified that an unknown man asked her
directions and after she had given him directions, he requested her to
accompany him. When they came to a forest, he strangled her, unzipped
his trousers and ordered her to undress and then inserted his penis
into her causing her excruciating pain (para [17]). The ‘complainant
was a single witness and, in terms of the cautionary rule, her evidence
must be clear and satisfactory in all material respects’ (para [26]).
‘There was no evidence led by the state to say how the appellant was
identified as the perpetrator of the offence’ (para [27]). The appellant
was unknown to the complainant. The complainant could not describe
the man’s height, but besides mentioning the fact that he was light of
complexion, and that he was wearing white trousers and built like her
father, there was no evidence to suggest that there were any distinct
features of the complainant’s father which would have resulted in the
appellant being identified as the perpetrator (paras [18]) and [27]).
She attended a pointing out where she pointed out the accused as the
person who raped her. It was conceded by the complainant that prior
to attending the identity parade, she had seen photographs depicting
the appellant. The court was concerned about the fact that ‘when she
attended the identification parade, despite there being at least nine
people in the room when she was allowed into the room, she walked
straight to the appellant, without looking at the other people who
were participating in the identification parade’ (para [29]).
Masipa J (Olsen J concurring) referred to S v Mthetwa 1972 (3) SA
766 (A) at 768 where the court formulated the criteria to be used
in identification cases. Holmes JA agreed that it was necessary that
caution should be exercised with regard to evidence of identification.
He stated that, because human beings are fallible, mere honesty on the
248 SACJ . (2019) 2
part of an identifying witness was not enough and that the reliability
of the observations of such a witness should be tested. Factors that
should be taken into account are: ‘lighting, visibility, eyesight, the
proximity of the witness, their opportunity for observation both as to
time and situation, the extent of their prior knowledge of the accused,
mobility of the scene, corroboration, suggestibility, the accused’s face,
voice, build, gait, dress, identification parade and the evidence on
behalf of the accused’ (para [29]). See also S v Maphumulo 2010 SACR
550 (KZP) (para [29]).
With regard to dock identification, the court referred to S v Mdlongwa
2010 (2) SACR 419 (SCA) where it was held that while this kind of
identification cannot be disregarded completely, it does not carry
significant weight. The dock identification could have been affected
by the fact that the witness had seen photographs of the appellant, had
participated in an identification parade and by seeing the appellant
in the dock. It was held that the state did not prove the guilt of the
appellant beyond reasonable doubt. The court found that there was no
evidence linking the accused to the offence and that the court a quo
had misdirected itself with regard to the conviction of the appellant
(paras [30]-[31]).
This case illustrates what Cameron J stated in S v Charzen 2006
(2) SACR 143 (SCA) at (para [14]): ‘[F]acial characteristics are a more
reliable and enduring source of identification than variable features
such as hairstyle or clothing’. Therefore, without specific descriptions
of facial features which the accused had in common with the
complainant’s father, the identification was too vague to be reliable.
The identification of the appellant under the suggestive circumstances
made both the identification at the identity parade and the subsequent
dock identification unreliable.

3 Probative value of and risks associated with gunshot

primer residue expert evidence
In S v Ndudula 2019 (1) SACR 609 (ECG); (CC47/17) [2018] ZAECGHC 99
the accused was charged with murder and the unlawful possession of
one semiautomatic firearm and ammunition. She pleaded not guilty and
submitted a written plea explanation in terms of s 115. She explained
that the presence of primer residue that was detected on her hand and
on the jacket that she was wearing on the morning of the incident,
could have been transmitted to her from the deceased (para [9]).
The issue in dispute centred on the transfer of gunshot residue (GSR).
Lieutenant Colonel Gogela testified that she found primer residue in
a sample which was taken from the accused’s right hand. She did not
Recent Cases 249

provide any indication of the strength of the concentration nor did she
indicate precisely where on the right hand the test material was found.
A high concentration of gunshot residue was also found on the left
inner sleeve of the jacket; the left and right outer sleeves/cuffs; the left
pocket (inside and outside); the inside collar; and the left and right
front inner lining. Samples from the right sleeve; the right pocket; the
left and right lapels and the outside collar tested negative (para [143]).
The court referred to French, Morgan and Davy (J French,
R Morgan and J Davy ‘The secondary transfer of gunshot residue:
An experimental investigation carried out with SEM-EDX analysis’
(2014) 43 XRay Spectrometry at 56-61), where it is stated that the
presence of gunshot residue (GSR) may not always indicate that a
person discharged a firearm (para [144]). According to them, there is a
possibility that secondary transfer of GSR could have the consequence
that an alleged shooter is misidentified or could make it difficult to
distinguish between the person who actually pulled the trigger of the
firearm and persons who acquired GSR as the result of secondary
transfer (para [144]).
The court noted that ‘as at 2013, these authors were still advocating
for further experiments employing automated SEM-EDX (scanning
electron microscopy, energy dispersive X-ray analysis), which
will hopefully add to our understanding of GSR transfer evidence
and continue to improve the accuracy of interpretations which are
presented in court’ (para [144]). Stretch J remarked that although the
expert had undergone training on primer residue analysis with SEM-
EDX, he had no difficulty with the technique utilised, but that he had a
problem with the evidence that the prosecution presented to court on
the basis of the expert evidence available to them. He was not of the
opinion that conviction could be based on the evidence. For example,
in response to a question as to whether it could be possible that the
GSR could have been transferred from the deceased to the jacket of the
accused if the deceased was touched by the accused after the shooting
incident, the witness stated that the number of particles and the areas
where these were found, were such that this possibility should be
ruled out. The judge noted that this highly complex expert evidence
simply stopped at that point of questioning without the witness being
questioned on the meaning of ‘a high concentration of primer’, what
she meant by ‘the amount of particles’ or, with regard to primary
and secondary residue, in order to provide quantitative and qualitative
evidence (para [145]).
The court noted that French, Morgan and Davy (J French, R Morgan
and J Davy ‘An experimental investigation of the indirect transfer
and deposition of gunshot residue: Further studies carried out with
SEM-EDX analysis.’ (2015) 247 Forensic Sci Internat’l 14-17) contend
250 SACJ . (2019) 2
that GSR found on a person may be an indication of contact between
such a person and a surface containing GSR and referred to the
jacket left in the bedroom where the shooting took place (para [146]).
The court noted that French et al further indicate that the SEM-EDX
technique morphologically detects particles on the basis of their
size/shape characteristics and that they are scrutinised with regard
to certain elements (para [147]). This means that particles and their
context should be meticulously scrutinised. In casu, it was indicated
by the forensic witness that, in her field, forensic witnesses do not
become involved in crime scene investigations and the collection of
evidence and as such do not get involved in the investigation. Such
witnesses furthermore do not specifically require that samples from
other subjects or objects associated with the crime scene be obtained.
Such an expert witness simply expresses opinions on what is presented
to him or her. The judge indicated that he was not surprised that the
expert witness was unable to offer any valuable comment when it was
put to her that the red jacket of the accused could have been within
a two-metre radius from the shooter. However, Lt Colonel Gogela
indicated that if the jacket was in a position next to the shooter, she
would have expected ‘a lot of particles’, as was the case (para [147]).
French, Morgan and Davy contend that GSR contamination can also
happen under circumstances such as arrest. This means that limited
amounts of GSR on the hands of firearm carrying policemen or on
objects associated with policemen create a possibility of secondary
transfer contamination (para [148]). The judge emphasised the necessity
and importance of detailed evidence with regard to the collection of
the samples by the three witnesses who obtained the samples from
the accused. Evidence to this effect, was not presented to the court
(para [148]).
The court found that any GSR found on the jacket of the accused,
could have got there as the jacket was lying on the bed when the
deceased was shot. Stretch J found that the GSR that was in the sample
taken from her right hand could have been transferred to her when
she assisted the deceased or when she wiped her hands on the front
of her jacket after she had washed them in the hospital (para [153]).
The court noted that it was well documented that the fine consistency
of residue makes it vulnerable to tampering and alteration and that
the weight to be attached to such evidence hinged on many different
factors. These complicating factors referred to by O Okorocha (in ‘The
reliability of gunshot residue’ Los Angeles Forensic Toxicology Expert
Witness, 8 December 2017, available at https://www.okorieokorocha.
com/ reliability-gunshot-residue/ ) in part, persuaded the FBI to close
its test laboratory in 2006 (para [152]).
Recent Cases 251

The court referred to the authors E Lindsay et al (‘Passive exposure

and persistence of gunshot residue (GSR) on bystanders to a shooting:
comparison of shooter and bystander exposure to GSR’ (2013) 44 Can
Soc Forensic Sci J 89-96) who found that the transfer of GSR particles to
an individual who was not present when the firearm was discharged,
was even possible (para [149]). Lindsay et al indicate that, in the
process of collecting evidence with regard to a shooting incident, as
many surfaces as possible which might have been in contact with the
suspected shooter or the firearm should be scrutinised and samples
taken as soon after the shooting incident as possible. Accuracy and the
manual verification and review of results are underlined. The findings
of the research referred to by Lindsay et al also point out the possibility
of secondary transfer during arrest, when a suspect handled the
firearm or during the seizure of a firearm. The findings from this study
highlight the potential for GSR counts to assist in distinguishing the
shooter from individuals who have acquired GSR through secondary
transfer. Thus, the implications of this study include the necessity, in
this instance, to take samples from as many subjects and surfaces as
possible, to enable the reconstruction of the suspect and her red jacket
(para [150]).
The court held that the accused had to be acquitted (para [177]).
This decision by the court is supported by DL McGuire who contends
in ‘The controversy concerning gunshot residues examinations’
ForensicMagazine, 8 January 2008, (available at https://www.forensic
mag.com/ article/ 2008/08/controversy-concerning-gunshot-residues-
examinations accessed 22 July 2019) that:
‘Contamination is the major concern when reporting GSR results. GSR
particles are more delicate than the finest talcum powder and they are
invisible to the eye. GSR particles can be transferred from surface to surface
by contact, air movement, abrasion, and washing. Numerous studies for the
presence of GSR particles in police cars, police stations, police equipment,
and occupational environments have found that sources of contamination
are abundant. To report the finding of a single unique particle of GSR on
a person as a positive finding for gunshot residue is akin to reporting that
the finding of a single grain of sand upon a person’s shoe is a positive
determination that that person had recently been on a beach.’ (para [8])

With reference to a particular particle count of residue, Okorie

Okorocha notes that:
‘[B]ecause a positive test result is dependent on the composition of particles, it
is important to examine the particle count. If the particle count of the residue
presented is more than two thousand and found on skin, the likelihood of
the subject being involved, increases. Should the count be less than twenty,
the residue could have transferred from contact with a police officer. (‘How
gunshot residue helps or hinders a case’ Los Angeles Forensic Toxicology
252 SACJ . (2019) 2
Expert Witness, 13 July 2008, available at https://www.okorieokorocha.com/
how-gunshot-residue-helps-or-hinders-a-case/ accessed 17 July 2019).

In 2016 the ‘GSR Subcommittee of the Organization of Scientific Area

Committees (OSAC) for Forensic Science in the USA announced that
further research into a statistically defensible method (or methods) is
needed to push the field to the point where it is possible to provide a
probabilistic assessment of how and to what degree the results support
or refute the hypothesis that a sample was obtained from a shooter or a
bystander (OSAC ‘Specific identification of shooters’, available at https://
www.nist.gov/sites/default/files/documents/ 2016/12/06/rd_needs-_gsr-_
specific_identification_of_shooters.pdf, accessed 22 July 2019).
The following recommendations with regard to the procedures
to follow in respect of GSR evidence emerge from the judgment by
Stretch J:
1. The advisability of the expert witness to be involved in the
collection of GSR (para [147]);
2. Detailed evidence by the witnesses who collected the GSR
(para [148]);
3. When collecting GSR as many surfaces as possible, which might
have been in contact with the suspected shooter or the firearm,
should be scrutinised and samples should be taken as soon after
the shooting incident as possible (paras [148]-[149]).
4. Samples should be taken from as many subjects and surfaces
as possible, in order to enable reconstruction of the incident
(para [150]).

4 Prosecution’s duty to disclose expert evidence

In order to deal with the evidence of a police ballistics expert, the
state, at the end of the defence case in S v Ndudula, applied to have
the case reopened. Purportedly an old damaged projectile, fired before
the shooting incident in question, had been found in the garden of the
accused. This witness conclusively established that projectiles found
at the murder scene had been fired from at least two 9 millimetre
pistols (para [172]). It was pointed out by the judge that the court
had not been asked by the prosecution to find that the accused fired
with two 9 millimetre pistols (para [176]). The court found that ‘the
accused had little or no opportunity to readjust the scene and to
dispose of any weapon or weapons’ (para [172]). The judge noted that
the prosecution was aware of this well before the trial commenced
and that the prosecution did not manage adequately to deal with this
dilemma (para [172]). The prosecutor’s response was that the fact that
two 9 millimetre pistols were used, did not exclude the accused from
the commission of the offences (para [173]).
Recent Cases 253

The court in casu held that the prosecution has a duty to seek justice
and not to seek a conviction at all costs (para [175]). The court held
that safeguarding the rights of an accused person was a prosecutorial
duty and that in terms of the requirements of a constitutionally fair
trial, all prejudicial and beneficial information should be disclosed
to an accused person as soon as is reasonably possible. The court
held that it was difficult to understand why the ballistics evidence
was not revealed to the court at an earlier stage and questioned why
the accused was prosecuted on the grounds specifically set out in
the state’s indictment (para [176]). Stretch J found it incomprehensible
that ‘the damning ballistics evidence of Captain Kamteni was withheld
from this court throughout the state’s case. Indeed it may well have
remained undetected altogether, but for this court having expressed
concerns about it, and but for it having been properly placed before
me during the defence case’ (para [177]).
The prosecutorial duty mentioned by the court, but not specifically
formally referred to, is reflected in The Code of Conduct for SA
prosecutors namely ‘Part C (g) ‘to take into account all relevant
circumstances and ensure that reasonable enquiries are made about
evidence, irrespective of whether these enquiries are to the advantage
or disadvantage of the alleged offender’; as well as s 2(g) ‘as soon
as is reasonably possible, disclose to the accused person relevant
prejudicial and beneficial information, in accordance with the law or the
requirements of a fair trial’. According to G Edmond ‘(Ad)ministering
justice: Expert evidence and the professional responsibilities of
prosecutors’ (2013) 36 UNSW L J 921 at 934):
‘In relation to evidence and proof, there are expectations: “that all available
legal proof of facts is presented”, “to assist the court to arrive at the truth”
and to ensure a fair trial.’ (See, generally, L Meintjes-van der Walt (2000) 13
‘Pre-trial disclosure of expert evidence: lessons from abroad’ 145; B Gershman
‘Misuse of scientific evidence by prosecutors’ (2003) 28 Okla City Univ L Rev
17 at 18. See also B Green and F Zacharias ‘Prosecutorial neutrality’ 2004
Wisc L Rev 837; E Luna and M Wade ‘Prosecutors as judges’ (2010) 67 Wash
& Lee L Rev 1413.)

David Plater maintains that notwithstanding the defence’s right to

call rebuttal experts, the prosecutor must make a ‘full and frank’
presentation of any incriminating expert evidence it intends to rely
upon (see D Plater ‘The development of the prosecutor’s role in England
and Australia with respect to its duty of disclosure: Partisan advocate
or minister of justice?’ (2008) 25 Univ Tas L Rev 111). According to
the Crown Office and Procurator Fiscal Service in their prosecution
policy guidance/guidelines, a failure by a prosecutor to comply with
obligations to reveal adverse consequences could include inter alia
that a prosecution be halted or delayed or that a conviction be quashed
254 SACJ . (2019) 2
on appeal (see ‘Guidance booklet for expert witnesses: The role of the
expert witness and disclosure’, [n.d.], available at https://www.copfs.
gov.uk/images/Documents/Prosecution_Policy_Guidance/Guidelines_
and_Policy/Guidance%20booklet%20for%20expert%20witnesses%20
%20June%2015.pdf, accessed 28 July 2019.)

5 Assessment of expert firearm identification

In S v Ndlovu [2019] 2 All SA 773 (ECG) three persons were found
with freshly removed rhino horn, a dart gun and tranquiliser in their
possession, and were arrested in a chalet in Makana (para [49]). The
accused were charged with 10 incidents of rhino poaching each of
which gave rise to five counts of rhino poaching, which allegedly
occurred on various farms and reserves in the districts of Albany,
Jansenville, Graaff Reinet and Cradock (paras [1]-[44]).
The admissibility of the evidence regarding items found in the chalet
was contested by the defence and the defence argued that the finding
and the seizure of the items were unconstitutional as no warrant
had been issued before the operation (para [51]). The court ruled
the evidence admissible after a trial within a trial. Captain Viljoen,
Commander of the Stock Theft and Endangered Species Unit and the
Coordinator for Rhino Poaching Investigations in the Eastern Cape,
testified in the trial within a trial and subsequently, in the main trial,
confirmed the evidence given by him in the trial within a trial. The
defence attempted to discredit Viljoen’s testimony as fabrication.
The court held that criticisms of Viljoen’s evidence were not sufficient
to call his testimony into serious question. Despite Viljoen’s failure to
adhere to Police Standing Orders, his evidence stood unshaken as to
the events on the day in question.
The Court had to deal with the evidence of two state witnesses,
in the employ of the South African Police Service, regarding certain
darts recovered from some of the crime scenes. The state called a
ballistics expert, Olivier, who examined the dart gun, Exhibit 2, that
was found at the chalet and whofound that it was ‘a normal .22 Marlin
bolt action firearm which had been modified by means of shortening
the barrel in the front, sealing it up, and putting a second barrel on
top of the actual barrel’ (para [77]) and therefore a firearm in terms of
the Firearms Control Act (para [78]). He concluded that the cartridges
were primed cartridges in terms of the Firearms Control Act and the
possession of such primed cartridges without a valid licence would
constitute a contravention of s 90 of the Act read with s 250 of the
Criminal Procedure Act (para [79]).
Olivier testified that he had examined many darts recovered from
rhino poaching crime scenes. A CO2 tranquiliser gun was used to fire
Recent Cases 255

the darts in most of these examined instances and Olivier explained

that a CO2 tranquiliser gun, not unlike a shotgun barrel, has a smooth
barrel with no grooves inside it. He indicated that it is impossible
to individualise a bullet or dart fired from a smooth barrel as such
a barrel leaves marks which are the result of vibration on the bullet
or dart. He testified that, as far as he knew, that was the first time
that a tranquiliser gun with a grooved barrel like that of a normal
firearm, was recovered pertaining to a poaching incident (para [80]).
He clarified that each firearm is characterised by class marks, obtained
during the process of manufacturing which indicates the particular
make of the firearm. If the class marks on the barrel do not correspond
to the marks left on the bullet or dart, the bullet or dart could not have
been fired by that particular firearm (para [81]).
Olivier testified, supported by the evidence of Warrant Officer
Schoeman, a forensics analyst attached to the Ballistic Section of the
Forensic Science Laboratory, Port Elizabeth, ‘that the gun, Exhibit 2,
has various so-called tool marks, namely six grooves and six lands.
The inside surface of the barrel of the gun is a circle with grooves that
turn in a spiral form. The grooves are deeper than the actual surface
of the barrel, with the original surface being called the ‘lands’. The
barrel of the gun has twelve tools which leave marks on a bullet when
it is fired’ (para [82]).
Olivier further stated that ‘he examined two darts which had been
recovered from the scene of two of the rhino poaching incidents’ and
that the first thereof ‘recovered from the scene of incident number
2, namely Jansenville CAS49/10/2013 during October 2013’, … was
not fired from the grooved tranquiliser gun, Exhibit 1 (para [83]).
With regard to the second dart, recovered from the scene of a rhino
poaching incident at Spekboomberg farm, in March 2016, relating to
incident number 9, Cradock CAS159/03/2016, Olivier testified ‘that
the class marks on this dart were the same as on Exhibit 2 but that
there were not enough unique marks on the dart to individualise it
to Exhibit 2. This finding was accordingly inconclusive: he could not
exclude or include it as having been fired from Exhibit 2’ (para [84]).
Warrant Officer Schoeman received in the course of her duties certain
darts recovered from the scenes relating to incidents number 7 and 8 as
well darts from rhino poaching scenes at Port Alfred and Hoedspruit.
By means of a comparison microscope, she found that all these
darts had been fired from the tranquiliser gun, Exhibit 2 (para [85]).
This conclusion was verified by Olivier (para [86]):
‘It was put to him under cross-examination that the testing of a dart in
order to ascertain whether it was fired from a particular tranquiliser gun was
extremely novel. Olivier replied that, novel or not, the whole procedure was
precisely the same as in the case of a bullet, the only difference being that
256 SACJ . (2019) 2
instead of a bullet, a dart was involved and the actual bullet compound being
different’ (para [87]).

Under cross-examination, he explained that ‘the marks on the left

dart should correspond or continue with the marks on the right dart
and that this should be visible to the court from the photographs’. He
added ‘that not all the lines would be 100% due to the fact that the test
dart shot in the laboratory was pristine whereas certain of the darts,
found on the various scenes, sustained some damage’. The judge, with
reference to Olivier’s evidence, remarked that ‘…the biggest problem in
producing a photographic image of what was viewed in the comparison
microscope was the lighting of the microscope. The microscope gave
horizontal lighting across a face so that when a cartridge was viewed
from the top the lights shone at 90 degrees across the surface creating
the appearance of mountains and valleys and darker and lighter shades’
(para [90]). The expert explained that an examination to individualise
will start by looking at dissimilarities. If the class marks are dissimilar,
the conclusion is automatically negative (para [94]).
Warrant Officer Schoeman conducted a ‘microscopic individualisation
of fired tranquiliser darts’ of the dart marked 50638/15C from Graaff
Reinet CAS26/03/2015, as well as of the five fired tranquiliser darts
referred to in paragraph 5.1 marked Grahamstown CAS142/06/2016 and
Exhibit 2, namely a ‘13mm calibre Pneudart Incorporated tranquiliser
gun with serial numbers 91641322 and 2809’ and found that the darts
had been fired by Exhibit 2 (paras [95]-[99]). After individualising the
fired darts to the tranquiliser gun, she prepared and signed certain
affidavits in terms of s 212 of the Criminal Procedure Act 51 of 1977.
She also testified. The respective affidavits signed by her were handed
in as Exhibits C1, D1, E1 and F1 (para [95]).
The s 112 affidavit, Exhibit D1, relates to Cradock CAS11/02/2016,
incident number 8. According to this affidavit she compared the
five fired tranquiliser darts (tests) marked 809TT3, G10b and G10c
respectively to Exhibit 2 by using a comparison microscope to compare
the individual and class characteristics markings on the darts and
found ‘9.1 the tranquiliser darts mentioned in 3.1 marked 388122/16A
(Cradock CAS11/02/2016) and 7.1 marked 809T1T3, G10b, and G10c
(Grahamstown CAS142/06/2016) were fired from the same tranquiliser
gun, Exhibit 2’ (para [101]).
The affidavit, Exhibit E1, relates to the case file Port Alfred
CAS996/03/2016, in respect of Sibuya Game Reserve. She declared
that she received a sealed evidence bag relating to this case file
containing three .50 (12,7mm) calibre fired tranquiliser darts marked
397655/16AC respectively. She examined these tranquiliser darts with
the five fired tranquiliser darts from Grahamstown CAS142/06/2016)
and determined that they were fired from the same tranquiliser gun,
Recent Cases 257

Exhibit 2 (para [102]). Exhibit F1 relates to an incident at Hoedspruit,

CAS72/01/2016. Schoeman received a sealed evidence bag containing
two fired tranquiliser darts marked 463151/16A and B and respectively
and compared these with the five fired tranquiliser darts marked
809T1T3, G10b, and G10c respectively and ascertained that these two
tranquiliser darts were fired from the same tranquiliser gun, Exhibit 2
found in chalet no 8 at Makana Resort (para [103]).
Warrant Officer Schoeman’s qualifications as an expert were disputed
by the defence. Pickering J held that on the grounds of Holtzhauzen
v Roodt 1997 (4) SA 766 (W) and S v Mlimo 2008 (2) SACR 48 (SCA) at
para [13] ‘it was for the Judge to determine whether the witness has
undergone a course of special study or has experience or skill such
as will render him or her an expert in the particular subject. It is not
necessary for the expertise to have been acquired professionally’ and
he held that he was satisfied that on the basis of her qualifications,
training and experience, Schoeman could thus be accepted as an
expert (para [104]).
Regarding the so-called particular minimum threshold or standards
required to link a specific dart to a particular firearm, Warrant Officer
Schoeman was intensively questioned by the defence. In response
to the questioning, Schoeman answered that if she was comfortable
regarding the class characteristics, she would continue by moving
to individual characteristics and said ‘if there is [sic] corresponding
marks, if there is sufficient agreement, if there is[sic] contour patterns
that match up’ she would be satisfied. She indicated that there was
no threshold such as in the case of fingerprints and said ‘if there are
corresponding marks and there is follow up, then we would make that
a positive’ (para [106]).
The defence put the following to Schoeman: ‘So you are saying that
whether you find two, three, four, five corresponding marks that is
enough?’ Schoeman answered: ‘Even if there is [are] three corresponding
marks, and if there is a follow up for instance on this land we get three
corresponding marks we will go to the next groove to see if there is
[are] marks that corresponds[sic] and if we are satisfied that there is
[are] corresponding marks, we make it positive’ (para [106]).
The defence put it to her that their expert contends that in the case
of a three dimensional object such as the tested darts, the minimum
standards would be ‘to find three consecutive striation marks, two lots
of three, or one consecutive group of six striation marks’. Schoeman
responded that they ‘do not have to rely on the consecutive matching,
as they can also use the ATHPY theory of identification’ on which
she relied to conclude that there is ‘significant agreement between
contour patterns and striations marks’ (para [107]). It is not clear
whether she here referred to The Association of Firearm and Tool
258 SACJ . (2019) 2
Mark Examiners (AFTE) theory of firearm identification, but as this
is the only internationally recognised method for firearm and tool
mark identification, it must be inferred that she indeed referred to this
theory.
In response to a question as to whether ‘significant agreement’ could
be as low as two similar marks, she stated ‘no, we will go further to
see if there is[are] corresponding marks, a follow up as I explained’.
She further stated that ‘significance is determined by comparing two
or more sets of surface contour patterns that are made up of individual
peaks, regions and furrows. The agreement is significant when it
exceeds the best agreements of marks known to have been produced
by different marks and it is consistent with the agreement of marks
known to have been produced by the same tool. When there is a
significant agreement between the two tool marks it means that the
agreement is of such quantity and quality that the chances that the
marks could have been produced by another tool is so small that it
is considered to be impossible’ (para [108]). She stated that she used
the procedure followed by every ballistic expert in South Africa (para
[108]).
Schoeman further explained that the consecutive method or the
significant agreement and pattern contours method were the two
methods which could be used and indicated that the consecutive
method referred to by the defence expert was not the only reliable
method to reach a conclusion (para [112]). She confirmed that on
14 December her microscopic results were verified by Olivier (para
[113]). It was put to her, as had been put to Olivier, that the particular
procedure of testing a dart shot through a tranquiliser gun was novel
and that it ‘has never been placed before and accepted by any court
anywhere in the world, can you accept that?’ She responded that the
testing of the dart was no different from any other tool mark case
which she had previously examined (para [114]).
Schoeman specified that there were standard operating procedures
which guided her as a ballistics expert as to how to go about the
examination. She further stated that there is no minimum number of
similarities that has to be found before an exact conclusion could be
reached (para [116]). Questioned about the existence of dissimilarities,
she stated that she would look at all the similarities and ‘if I am satisfied
and my colleague who is the one who is reviewing my work is satisfied
with my results, we will go through as a positive. We do not disregard
dissimilarities, we will go further and check for more to confirm if
there is [sic] more matching marks. If it does not match up, we will
either make it as a negative or if the class characteristics are the same
and we do not have enough marks we will go for undetermined’ (para
[115]).
Recent Cases 259

The court was of the view that in these circumstances the evidence
of Olivier and Schoeman as to the standard operating procedures used
by them can be accepted. The court regarded Schoeman as a good
witness and Olivier as an excellent witness and found both of them
clearly honest and reliable (para [116]).
The court held that the obvious dissimilarities between the test
darts and the rhino scene darts as depicted on the photographs were
explained by Schoeman and Olivier as being caused by the difficulty
of producing a photograph which indicates what they saw in the
comparative microscope. This difficulty arose from depicting a curved
surface in a flat photograph as the object observed in the microscope is
three dimensional while the photograph is one dimensional (para [117]).
Schoeman and Olivier contended that it must be remembered in the
circumstances of this case that the photographic charts introduced
into evidence were intended to be aids for the court and should by no
means be regarded as definitive (para [118]).
The judge accepted that there is no onus on an accused person
to obtain his or her own expert in order to disprove the findings of
experts called by the state. In this instance, the onus was on the state to
prove, by way of acceptable ballistic evidence, that the exhibits found
at the scene were positively linked to the firearm subsequently found
in the possession of the accused. In the present matter, Schoeman’s
results were verified by Olivier whose integrity and expertise were
fully accepted by the defence. The defence expert was present in court
and was specifically invited to review the tests (para [119]). Pickering
J held that had the invitation for the defence expert to review the
results been accepted by the defence, clarity regarding ballistic issues
could have been reached. The invitation was, however, declined and
no expert evidence was led on behalf of the accused. It was held that
‘in these circumstances the evidence of Olivier and Schoeman as to
their Standard Operating Procedure and as to what was visible under
the comparison microscope stands uncontroverted and can safely be
accepted as reliable’ (para 120]). The court held that the microscope
comparison technique is well known and is regarded to be reliable
(para [121]). The court declined to look through the microscope itself
as to ‘look through certain sophisticated instruments and rely upon
its own observations when, from its limited knowledge of the subject,
it does not know whether its observations are reliable or not and
whether an inference can reliably be drawn from them or not’. The
court, therefore, relied on the evidence of the experts (para [122]).
Pickering J held as follows:
‘What appears from the above authorities, therefore, is that even with
fingerprint evidence the Court itself is not called upon to determine the
existence or otherwise of points of identity. It is a question of the reliability
260 SACJ . (2019) 2
and honesty of the expert witness. In my view, therefore, applying the
principles set out in the above cases, the State has proved beyond reasonable
doubt that the darts found at the scene of incidents number 7 and 8 were
fired from the tranquiliser gun, Exhibit 2. So too has it proved that the darts
relating to the rhino poaching incidents at Port Alfred and Hoedspruit were
fired from Exhibit 2.’ (para [130])

Referring to several authorities, the judge was of the view that, in

order to be admissible, the similar fact evidence regarding the darts
found at Port Alfred and Hoedspruit must have probative value in that
reasonable inferences can be drawn from this evidence in deciding
the facts in issue. The judge stated that the fact that other darts had
been fired from exhibit 2 in incidents where rhinos were killed and
dehorned, is ‘logically and legally relevant and of very high probative
value such as to outweigh the prejudicial potential’ (para [137]).
In the method and in the circumstances there is a concurrence of
common features between the two sets of facts such as to give rise to
the reasonable inference that the accused were involved in a course of
conduct involving rhino poaching (para 138]). The court was satisfied
that the evidence regarding the incidents at Port Alfred and Hoedspruit
was correctly admitted.
The court found the expert witnesses to be good and credible.
Pickering J concluded that the evidence given by the two state witnesses
regarding their operating procedure and what they detected under the
microscope, was uncontroverted and can safely be accepted as reliable
and that the exhibits found at the crime scene were positively linked
to the firearm subsequently found in possession of the accused (para
[137]).
The court found the state to have proved beyond reasonable doubt
that the darts found at the scene of two of the incidents were fired
from the tranquiliser gun found in the possession of the accused. It
was also proved by similar fact evidence that the darts relating to
two of the other rhino poaching incidents were fired from the same
tranquiliser gun.
Expert evidence with regard to firearm identification was central to
this case. The court had to determine whether the fired darts were in
fact shot from Exhibit 2. The following question was put to the expert,
Schoeman, by the counsel for the accused (para [94]):
‘Q: Let me ask you this … can you say conclusively without any possibility of
being incorrect that the two darts that you compared were 100% the same?
A: Which darts are we talking about?
Q: The darts that you linked as being the actual darts fired from this firearm?
A: Yes, my Lord in these cases if I verified it I am happy that they were fired
out of the same firearm.
Q: You don’t foresee the possibility that another expert may come to a
different conclusion?
Recent Cases 261

A: No my Lord. We must also remember that at ballistics if we show a court

chart, right it is an illustration of a part of specifically how this dart, it will be
one of twelve parts that we looked at, we did what is on the court chart yes
that is what we looked at, however, there are other parts that we have also
looked at, that was verified.’

Concerning the absolute certainty expressed by the expert with regard

to linking a dart to a particular firearm, it should be noted that in 2016,
the US President’s Council of Advisors on Science and Technology
(PCAST) released a report called ‘Forensic science in criminal courts:
Ensuring scientific validity of feature-comparison methods’ (2016).
This PCAST report contends that the firearm theory of identification
is clearly not a scientific theory, but rather that ‘it is a claim that
examiners applying a subjective approach can accurately individualize
the origin of a tool mark’ (PCAST Report 60). PCAST found that
firearms analysis currently falls short of the criteria for foundational
validity because there is only a single appropriately designed study
to measure validity and estimate reliability. The scientific criteria for
foundational validity require more than one such study, to demonstrate
reproducibility (PCAST Report 112). The district court in the United
States v Ashburn 88 F. Supp. 3d 239 (E.D.N.Y. 2015) relied on the
2009 National Academy of Sciences (NAS) Report and its criticisms
of the Association of Firearms and Toolmark Examiners (AFTE)
sufficiency theory in the judgment to preclude ‘this expert witness
from testifying that he is “certain” or “100% sure … [or] that a match
he identified is to the ‘exclusion of all other firearms in the world’” or
that there is a ‘practical impossibility that any other gun could have
fired the recovered materials’. If the expert relied on the AFTE theory
of identification (as referred to her in para [106]) she should not have
testified in terms of 100% certainty. Murdock emphasises that a bullet
cannot really be ‘traced’ to a particular gun but it can only be matched
with other bullets fired from the same weapon. (See JE Murdock et
al ‘The development and application of random match probabilities
to firearm and toolmark identification’ (2017) 62 J Forensic Sci 619).
Murdock contends that ‘[a]bsolute certainty opinions may have been
adopted in the past, but this type of position has been retired for some
time and no longer represents the consensus thinking of the firearm
and tool mark community’ (at 624).
The interpretation of individualisation/identification of firearms
is subjective in nature (A Schwartz ‘A systemic challenge to the
reliability and admissibility of firearms and toolmark identification’
(2005) 6 Columb Sci & Tech’y L Rev 1 at 14). As can be seen from the
cross-examination by the defence in casu, that the standards for what
constitutes a match are vague and poorly defined and consequently,
the match determination rests heavily on subjective judgment. When
262 SACJ . (2019) 2
asked to determine whether two bullets could have been fired from
the same gun, for example, firearms examiners will typically examine
the bullets under a comparison microscope to see if the striations
(markings) on the bullet are similar. However, no standards exist to
specify how many or what kind of striations must correspond before
the analyst may declare two projectiles to match.
In United States v. Glynn 578 F. Supp. 2d 567 (S.D.N.Y. 2008) the
court denied that firearms source attributions ‘could . . . be called
‘science,’ because when asked what constitutes “sufficient agreement”
between two pieces of ballistic evidence to declare a match, [the
prosecution’s expert] admitted that the assessment is subjective, in that
‘it is an opinion of mine and whether or not someone else would agree
with it is up to that individual’ (p 571). (See DH Kaye ‘Firearm-mark
evidence: Looking back and looking ahead’ (2018) 68 Case West’n Res
L Rev 723 at 729.
The district court in United States v Taylor 663 F. Supp. 2d 1170
(D.N.M. 2009) regarded the AFTE theory of sufficiency to be ‘circular’
(1170). It restated the assessment of the 2009 NAS committee that
‘a fundamental problem with tool mark and firearms analysis is the
lack of a precisely defined process. . . . AFTE has adopted a theory
of identification, but it does not provide a specific protocol’ (1178).
To cope with the absence of controlling standards for making source
attributions, the court held that the expert ‘will not be permitted
to testify that his methodology allows him to reach this conclusion
as a matter of scientific certainty [or] . . . that there is a match to
the exclusion, either practical or absolute, of all other guns’ (1180).
Instead, ‘[h]e may only testify that, in his opinion, the bullet came
from the suspect rifle to within a reasonable degree of certainty in the
firearms examination field’. (1180). (See also Kaye op cit.)
The court in United States v Willock 696 F. Supp. 2d 536 (D. Md.
2010) observed that ‘toolmark analysis guidance provided by the AFTE
lacks specificity because it allows an examiner to identify a match
based on “sufficient agreement” which the AFTE defines using the
undefined terms “exceeds the best agreement” and “consistent with.”’
(at 566).
The expert, Schoeman, stated that ‘We do not have to rely on the
consecutive matching, we can also use the ATHPY[sic] theory of
identification which I relied on that there is a significant agreement
between contour patterns and striations marks.’ (para [107]).
In response to a question as to whether ‘significant agreement’ could
be as low as two similar marks, she stated ‘no, we will go further to
see if there is[sic] corresponding marks, a follow up as I explained’.
She stated further that ‘significance is determined by comparing two
or more sets of surface contour patterns that are made up of individual
Recent Cases 263

peaks, regions and furrows. The agreement is significant when it

exceeds the best agreements of marks known to have been produced
by different marks and it is consistent with the agreement of marks
known to have been produced by the same tool. When there is a
significant agreement between the two tool marks it means that the
agreement is of such quantity and quality that the chances that the
marks could have been produced by another tool is[sic] so small that it
is considered to be impossible’ (para 108]).
With regard to the above it is pertinent to note that the AFTE Theory
of Identification as it relates to firearms and tool marks refers to
‘sufficient agreement’ and defines this notion as being:
‘related to the significant duplication of random tool marks as evidenced
by the correspondence of a pattern or combination of patterns of surface
contours. Significance is determined by the comparative examination of
two or more sets of surface contour patterns comprised of individual peaks,
ridges, and furrows. Specifically, the relative height or depth, width, curvature
and spatial relationship of the individual peaks, ridges and furrows within
one set of surface contours are defined and compared to the corresponding
features in the second set of contours. Agreement is significant when it
exceeds the best agreement demonstrated between two toolmarks known
to have been produced by different tools and is consistent with agreement
demonstrated by toolmarks known to have been produced by the same tool.
The statement that “sufficient agreement” exists between two toolmarks
means that the likelihood another tool could have made the mark is so
remote as to be considered a practical impossibility’. (See AFTE ‘Theory of
identification, Firearm Examiner Training, [n.d.], available at https://projects.
nfstc.org/firearms/ module09/fir_m09_t05_05.htm).

In Ramirez v State of Florida Supreme Court Case No SC92975,

(December 20, 2001) the court warned firearm and tool mark examiners
who rely on ‘nothing more than their own subjective criteria for
striae identification’ and are unable to put forth ‘a convincing, logical,
scientifically based explanation for the basis of their identifications’
(B Moran and J Murdock ‘Joseph Ramirez vs. State of Florida – Supreme
Court Decision, December 20 1991’ (2002) 34 AFTE J 215-226).
As seen from the Ndlovu judgment, firearm comparison expertise is
based on the assumption that forensic science interpretation is based
on an examiner’s training and experience (See para [104]). Speaking
at the Ninth Circuit Judicial Conference, Mnookin contended that
‘[i]t must take scientific study to make a field scientifically reliable’ and
that ‘[e]xperience, no matter how extensive, could not be a substitute
for scientific study’ (M Dinzeo ‘Skepticism of forensic methods urged
at 9th Circuit Conference’ Courthouse News Service 18 July 2017,
available at https://www.courthousenews.com/skepticism-forensic-
methods-urged-9th-circuit-conference/, accessed on 7 August 2018).
Moreover, Edmond believes that prosecutors, defence lawyers and
264 SACJ . (2019) 2
judges should direct attention to formal evidence of reliability and
not rely on evidence on the basis of long experience (G Edmond 2015
‘What lawyers should know about forensic sciences’ (2015) 36 Adelaide
Law Review 33 at 94).
According to Ramirez v State of Florida, Florida Supreme Court
Case No SC92975, (December 20, 2001) firearm experts must be able
to put forth ‘a convincing, logical, scientifically based explanation
for the basis of their identifications’. The court in the Ramirez case
rejected the argument by the expert that ‘I know it is a match because
I have sufficient background, training and experience.’ The judge also
rejected the argument by the firearm examiner that ‘there is absolute
certainty of his identification and that there are no objective criteria
that must be met’. Finally, in the Ramirez case, the court found the
examiner’s scientific methodology had not gone through ‘meaningful
peer-review or publication’. The Ramirez case is a good precedent for
all firearm and tool mark identification because it ensures that the
reliability of scientific methods is considered in such type of cases
(R Grzybowski et al ‘Firearm/toolmark identification: Passing the
reliability test under federal and state evidentiary standards’ (2003) 35
AFTE J 209-241).
With reference to a number of cases on fingerprint evidence (paras
[125]–[129]) Pickering J held that in terms of R v Nksatlala 1960 (3) SA
543 (A) Schreiner JA at 546CE stated that the court ‘must decide for
itself whether it can safely accept the expert’s opinion’. And in this
respect the Appellate Division in S v Nala 1965 (4) SA 360 (AD) stated
the following at 362EF:
‘Where the trial Court investigates the expert’s evidence regarding points of
identity it does so, not in order to satisfy itself that there are[is] the requisite
number of points of identity, but so as to satisfy itself that the expert’s opinion
as to the identity of the disputed fingerprint may safely be relied upon. If
the Court is itself able to discern all the points of identity relied upon by the
expert, it will no doubt more readily hold that the opinion of the expert may
safely be relied upon than in a case where, e.g., it is quite unable to discern
any of the points of identity relied upon.’

With regard to the above and with reference to the scientific and
legal references indicated above, the question arises as to whether
expert firearm identification evidence may safely be relied upon in the
absence of internationally recognised scientific substantiation.

6 The right of the accused not to testify

Another issue that arose in S v Ndlovu [2019] 2 All SA 773 (ECG)
was that none of the accused testified in their defence. When an
accused exercises his or her constitutional right not to testify, no
Recent Cases 265

adverse inference can be drawn from this, but if an accused chooses

this option, the court must consider the prima facie case of the state
(para 138]-[139]). Having regard to the totality of the evidence, albeit
circumstantial in nature, the Court found that the State had produced
evidence sufficient to establish a prima facie case which called for a
rebuttal by the accused (paras [224]-[225]). The accused’s constitutional
right to silence cannot prevent logical inferences to be drawn from
it (para [138]). In the circumstances, the evidence was sufficient to
prove that the accused are guilty of the theft of rhino horn beyond
reasonable doubt.
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