THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
CASE NO:   454/2007

In the matter between

MANDLA MISHACK MLIMO                                          APPELLANT

and

THE STATE                                                                    RESPONDENT

CORAM:
FARLAM, MTHIYANE JJA and KGOMO AJA

HEARD:

15 FEBRUARY 2008
DELIVERED:
18 MARCH 2008

Summary: Appellant indicted in the High Court for murder and attempted
murder of husband and wife arising out of a shooting incident -

Whether judge’s conduct during trial rendered it unfair.

Expert witness – whether trial court was entitled to accept the
evidence of a witness who had not completed a diploma in ballistics
as expert evidence – whether the witness’s experience in the said
field was sufficient.
Neutral Citation: MM Mlimo v The State (454/07) [2008] ZASCA 7
(18 March 2008).

MTHIYANE JA

MTHIYANE JA:

[1] The appellant was arraigned in the Pretoria High Court before Els
J, on charges of murder, attempted murder and robbery with aggravating
circumstances. He was acquitted on the charge of robbery with
aggravating circumstances but convicted on the first two counts and
sentenced to life imprisonment for murder and twelve years’
imprisonment for attempted murder. The sentence of twelve years’
imprisonment was not ordered to run concurrently with the life sentence.
The appellant appeals to this court with its leave, against his convictions
and sentences.

[2] The charges arose out of an incident in Laudium, Pretoria. At about
18.30 on 6 November 2005 Mrs Alida Rahman, her husband and their
children returned home from a visit. When her husband, Mr Abdul
Rahman (the deceased), stopped the car in the driveway and got out to
open the gate, Mrs Rahman noticed that the gate was already partially
open. Suspecting something amiss, she tried to warn the deceased against
alighting, but found that the deceased had already stepped out of the
vehicle and had his back to the door. The deceased then suddenly urged
her to get out of the car but before doing so she attempted to reach for the
hooter in order to raise the alarm. At that point a hand clutching a gun
emerged from behind the deceased and a shot went off. She was shot in
her right hand before reaching the hooter. This caused her to slide back
and fall onto the ground. For a brief moment she did not know where her
husband or her children, a boy and a girl aged 9 and 11 respectively,
were. She heard a car drive away from the scene. Crawling on her knees,
she reached for the door and managed to get her children out of the car.

She then crawled onto the right side of the car where she found the
deceased lying sprawled on the road with a bullet wound in his chest.

[3] The appellant pleaded not guilty to the charges and in his plea
explanation in terms of s 115 of the Criminal Procedure Act 51 of 1977
pleaded a complete denial and placed all the elements of the charges
against him in issue. It therefore followed that in order to secure a
conviction the State had to lead all relevant evidence to link the appellant
to the commission of the offences charged.

[4] The State called Dr Robert Gabriel Ngude, who conducted a post
mortem examination on the deceased on 6 December 2005 and thereafter
prepared the medical legal post mortem report in which the cause of death
is given as:
‘Gunshot wounds to the chest.’

[5] The appellant did not dispute that he was the licensed holder and
owner of a semi-automatic pistol, described as a 40 S&W Calibre Vektor
Model SP2, bearing serial number 101368. The State called
Superintendent Zwelabo Solomon Sindane to give evidence as a ballistics
expert. He testified that he had ballistically tested the appellant’s firearm
and concluded that the bullet that was removed from the body of the
deceased and the two empty cartridges that were found at the scene were
fired from it. This conclusion was arrived at after Sindane had compared
the exhibits removed from the scene of the crime and with the bullet
removed from the deceased’s body with the bullets and the cartridges
fired from the appellant’s firearm. He had examined them by ‘coupling
them underneath the microscope’ and found marks that matched. This,

said the witness, convinced him that the bullets and the cartridges
concerned were fired from the appellant’s firearm.

[6] The other witnesses called were Inspectors Thomas Willem
Knoesen and David Shibambu who gave evidence concerning the
recovery of the firearm. These two officers accompanied the appellant to
the house of his friend, Mr Ernest Matlou, where the firearm was found
under a bed. Shibambu said that the appellant explained that he left his
firearm with Matlou for safekeeping. He went on to say his house had
been broken into previously and that he feared his firearm might be stolen
if it remained there.

[7] During cross-examination it was put to Knoesen that when the
firearm was recovered it was in a safe under the bed. Knoesen disputed
this and stuck to his version. Nothing turns on this dispute; it does not
explain away the possession of the firearm at the time of the shooting of
the deceased and his wife. A possible explanation which was, however,
later disputed by the appellant emerged at the bail hearing. During his
evidence at those proceedings Knoesen told the court that the appellant
had told him that on the day of the shooting he was driving a car
belonging to a friend, Raymond. He had his firearm strapped to his belt in
a holster. While he was driving Raymond shouted for him to stop and
claimed that he had seen a person who owed him (Raymond) money. The
appellant stopped the vehicle as requested whereupon Raymond snatched
the firearm, jumped out of the vehicle and started firing shots at the
person. He thereafter jumped back into the car and the appellant drove
off. This was disputed during cross-examination. It was suggested that the
appellant had informed Knoesen that the firearm had always been in his

possession, except for the period after his arrest when he handed it to
Matlou for safekeeping.

[8] The appellant closed his case without calling evidence in his
defence. This after his application for a discharge at the end of the state’s
case in terms of s 174 of the Criminal Procedure Act was refused. The
trial judge expressed the view that there was at that stage a fairly strong
prima facie case against the appellant.

[9] On appeal the appellant attacked the conviction on three bases.
First, it was contended he had not received a fair trial. The judge’s
behaviour during the trial, as evidenced by his impatience,
confrontational manner and continuous descents into the arena, submitted
counsel, rendered the trial unfair. Second, counsel submitted that the
evidence of Knoesen was unreliable and open to constitutional challenge.
The third and final point was that the trial court erred in accepting
Superintendent Sindane as an expert witness and consequently the
acceptance of his ballistics evidence.

[10] I deal first with the question whether the appellant received a fair
trial. There is no doubt that the judge participated actively in the
proceedings and there were undoubtedly times when he was impatient
with the appellant’s attorney during the trial. As I read the record the
judge did not impede cross-examination. After each verbal skirmish or
exchange between himself and the defence attorney the trial judge was
careful to invite him to proceed with his cross-examination and to
thereafter lead whatever evidence he wished to place before the court. In
my view there are times when the judge was justified in losing patience
with the defence. The point may be illustrated by reference to a stage in

the proceedings when Superintendent Sindane had already given evidence
concerning bridge marks but the attorney pressed him to deal with that
aspect once again. Undue impatience and irritability on the part of a
judicial officer is inappropriate and undesirable. A trial judge or
magistrate must ensure that ‘justice is done’. He or she should so conduct
the trial that his or her open-mindedness, impartiality and fairness are
manifest to all those who are concerned in the trial and its outcome,
especially the accused (S v Rall 1982 (1) SA 828 (A) at 831H–832A).
This is particularly so where an accused person is represented by a junior
and inexperienced counsel or attorney who might easily be intimidated by
improper conduct on the part of the court. The same cannot, however, be
said of the appellant’s attorney. He never took a step back when the
appellant’s interest demanded that he forge ahead and handled the trial
judge’s impatient interventions with ease, true to his profession. He was
steadfast and never lost his composure. Having regard to the record as a
whole I am not persuaded that the manner in which the judge conducted
himself in this case affected the fairness of the trial.

[11] I turn now to Knoesen’s evidence. Counsel submitted that it should
be rejected, firstly, because he had contradicted himself. Developing his
argument on this point Counsel drew attention to the fact that Knoesen
had initially said that the appellant had told him that he did not wish to
say anything but told the court during the bail hearing that the appellant
had related the incident involving the snatching of the firearm from him
by Raymond. Counsel submitted also that the incident involving
Raymond was so far fetched that the court should find that the appellant
in fact never said anything of the kind. Of course if that finding is made it
must therefore follow that at the time of the shooting the firearm was in
the appellant’s possession. In the absence of any explanation of how the

firearm came to be ballistically linked to the shooting, the inference is
unavoidable that the appellant was correctly implicated in the shooting.

[12] In the alternative counsel submitted that Knoesen’s evidence is
open to challenge on constitutional grounds. It was submitted that the
statements Knoesen attributed to the appellant should not be accepted on
that account. This point however flounders in the light of Knoesen’s
unchallenged evidence that the appellant was duly warned by him before
he could say anything.

[13] I turn to the third and final point, namely that the court erred in
accepting Superintendent Sindane as an expert witness. The submission is
premised on two points. First, it was said that Sindane had in his evidence
conceded that he had not completed his diploma in the ballistics course;
he still had one more year to complete. In my view a qualification is not a
sine qua non for the evidence of a witness to qualify as an expert. All will
depend on the facts of the particular case. The court may be satisfied that
despite the lack of such a qualification the witness has sufficient
qualification to express an expert opinion on the point in issue. It has
been said:
‘It is the function of the judge [including a magistrate] to decide whether the witness
has sufficient qualifications to be able to give assistance. The court must be satisfied
that the witness possesses sufficient skill, training or experience to assist it. His or her
qualifications have to be measured against the evidence he or she has to give in order
to determine whether they are sufficient to enable him or her to give relevant
evidence. It is not always necessary that the witnesses’s skill or knowledge be
acquired in the course of his or her profession – it depends on the topic. Thus, in R v
Silverlock it was said that a solicitor who had made a study of handwriting could give
expert evidence on the subject even if he had not made any professional use of his
accomplishments.’ (See DT Zeffertt. AP Paizes, A St Q Skeen The South African Law

of Evidence (2003) 302; see also Lirieka Meintjies van der Walt, ‘Science Friction:
The Nature of Expert Evidence in General and Scientific Evidence in Particular’
(2000) 117 SALJ 771 at 773-4.)

[14] There is every reason to accept Sindane as an expert witness. He is
vastly experienced in his particular field of expertise and stated that he
has been involved in no less than 3085 cases involving ballistics testing
over a period of more than 6 years. A lack of formal qualification may be
an indicator that the witness has not yet received sufficient training in the
theoretical aspects in the field in which he or she gives evidence. But this
is not the case here, given the vast experience the witness has
accumulated over the years. Significantly the challenge is not about the
content or substance of his evidence but rather, that he still had one more
year to complete the course. During argument counsel offered no
guidance as to what makes an expert an expert. In my view the vast
experience that Sindane had qualified him to be an expert and the trial
court was justified in accepting his evidence. In any event the challenge
on appeal is a volte face, which comes late in the day, as the appellant’s
attorney indicated during the trial that Sindane’s qualifications were not
disputed. Accordingly it no longer lies in the appellant’s mouth at this
stage to dispute the witness’s qualifications.

[15] The second ground upon which Sindane’s evidence was attacked
was that he had conducted the ballistics test together with another official
from whom he appeared to have sought guidance or approval. I do not
think there is any merit in this submission. It is clear from the evidence
that Sindane conducted the test himself and arrived at the conclusion to
which he did himself. In any event there is nothing wrong with officers
working in tandem when they investigate cases.

[16] Having regard to the case as a whole I do not think the trial judge
can be faulted for coming to the conclusion which he did. The evidence
established that there was a shooting in which the deceased was killed
and his wife shot and injured. The appellant’s firearm was ballistically
linked to the shooting. There was no countervailing evidence as the
appellant did not testify. Accordingly the appeal against the convictions
must fail.

[17] I turn to sentence. As already indicated the twelve year sentence
was not ordered to run concurrently with the life sentence. One would
have thought that concurrency with the life sentence would follow as a
matter of course: see s 39(2)(a)(i) of the Correctional Services Act 111 of
1998. Not so, says counsel for the appellant. He submitted that, if this
court was not minded to alter the sentence imposed, the prison authorities
might require a clear statement that the twelve year prison sentence was
to run concurrently with the life sentence. Counsel for the State did not
oppose the request. However, if the prison authorities are obliged to apply
the provisions of s 39(2)(a)(1)(i) of the Act, the sentence needs no
alteration.

[18] Accordingly the following order is made:
The appeal is dismissed.

______________________

KK MTHIYANE

JUDGE OF APPEAL

CONCUR:

FARLAM JA
KGOMO AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:

The Registrar, Supreme Court of Appeal

Date:

18 March 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

MM MLIMO v THE STATE (454/07) [2008] ZASCA 7 (18 March 2008).

[1] The SCA today dismissed the appeal by Mr Mandla Mishack Mlimo, against the judgment of
the Pretoria High Court (per Els J) in which he was convicted of murder and attempted murder and
sentenced to life imprisonment for murder and twelve years’ imprisonment for attempted murder.

[2] The trial court found that his licensed firearm, was ballistically linked to the shooting in
Laudium, Pretoria on 6 November 2005, in which Mr Abdul Rahman was killed and wife, Mrs Alida
Rahman was injured.

[3] On appeal the SCA found that the trial judge was entitled to rely on the opinion evidence of
Superintendent Sindane, who tendered evidence as an expert, even though he had not completed a
diploma in a ballistics course. The SCA found that the experience Mr Sindane had accumulated over a
period of 6 years and his involvement in no less than 3085 shooting cases qualified him to give
evidence of that nature. To this may be added the fact that he had himself conducted the ballistics test
linking Mr Mlimo’s firearm to the incident and his evidence which was not contradicted by the
defence. Mr Mlimo did not give evidence at the trial.

[4] The SCA found that Mr Mlimo was convicted and his appeal was dismissed.