THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 559/09
No precedential significance

In the matter between:

MBULELO MAJIKAZANA

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation:
Majikazana v The State (559/09) [2010] ZASCA 29 (26
March 2010)

CORAM:

MPATI P, VAN HEERDEN, MHLANTLA, SHONGWE
JJA et THERON AJA

HEARD:

2 MARCH 2010

DELIVERED:
26 MARCH 2010

SUMMARY:
Criminal Procedure – fair trial – murder – fact of presiding
judge previously having heard and dismissed bail appeal
not brought to his attention at commencement of trial – no
credibility findings made in bail application and on appeal
– in absence of any irregularity actual bias to be proved
for finding of failure of justice where no application made
for judge's recusal..

Fire and firearms – firearms – possession of in
contravention of s 2 of Act 75 of 1969 – mens rea an
element for contravention of the section – use of firearm
for unlawful purpose establishes mens rea.

ORDER

On appeal from:
Eastern Cape High Court (Grahamstown) (Froneman J
sitting as court of first instance).
The following order is made:
1.
The appeal against the conviction on count 2 (murder) is dismissed.
2.
The appeal against the sentence of 25 years' imprisonment imposed
upon the appellant in respect of count 2 succeeds. The sentence is set aside
and replaced with one of fifteen years' imprisonment.
3.
The appeal against the conviction and sentence on count 3 (unlawful
possession of a firearm) is dismissed.
4.
The appeal against the conviction on count 4 (unlawful possession of
ammunition) succeeds and the conviction and sentence are set aside.
5.
The sentence on count 2 is backdated to 4 December 2000, being the
date on which sentences were imposed by the trial court.

JUDGMENT

MPATI P (Van Heerden, Mhlantla, Shongwe JJA et Theron AJA concurring):

[1] The appellant was convicted by the Eastern Cape High Court,
Grahamstown (Froneman J) of murder (count 2), and unlawful possession of
a firearm and ammunition in contravention of s 2 and 36 of Act 75 of 1969
(counts 3 and 4) respectively. He was sentenced to 25 years' imprisonment in
respect of the murder conviction and two years' and one year's imprisonment
in respect of counts 3 and 4 respectively. The last mentioned two sentences
were ordered to run concurrently with the sentence on count 2.

[2] The appellant, who was the first accused before the trial court, was
indicted with two other accused persons, namely Mr Mbuyiseli Twani
(accused 2) and Mr Lonwabo Fofo Jacobs (accused 3). Mr Twani and Mr
Jacobs were charged with attempted murder (count 1) and the former also

with an alternative to count 1, viz incitement to commit murder. They were
both found not guilty and discharged.

[3] It appears that immediately after he had been sentenced on 4
December 2000 the appellant instructed the attorney who had represented
him before the court below to appeal against the convictions and the
sentences imposed upon him. On 25 March 2002 the attorney filed an
application for leave to appeal only against the sentence of 25 years'
imprisonment. He did so without an application for condonation for the late
filing of the application. After the passing of the appellant's attorney, a new
firm of attorneys was appointed which discovered, during the course of their
investigations, that Froneman J, who presided in the trial, had also presided
over, and dismissed, an appeal against the refusal of bail by the Regional
Court, Grahamstown, in an application brought by the appellant and his co-
accused. The bail appeal was disposed of on 7 April 2000, approximately
seven months before the commencement of the criminal trial.

[4] On making the discovery mentioned above, the appellant's attorney
lodged an application for condonation for the appellant's failure to timeously
prosecute his application for leave to appeal. He also filed an amended
application for leave to appeal, which now also contained an application for
leave to appeal against the convictions of murder and the unlawful possession
of a firearm and ammunition. In addition, the attorney lodged an application for
a special entry to be made on the record on the ground that the proceedings
were irregular, in that the trial judge, having presided in the bail appeal, had at
the time of the trial been aware of the evidence adduced during the bail
appeal. For this reason, so it was contended, the appellant suffered prejudice.

[5] Although the court a quo was of the view that there were no reasonable
prospects of success on appeal on either the convictions or sentences
imposed upon the appellant, it decided to grant the leave sought because it
was prepared to grant the application for a special entry. The court thus made
the following special entry on the record of the criminal trial:

'The Judge presiding in this trial also presided in a bail appeal brought by Mr
Majikazana, the first accused, in case number 91/2000 and handed down
judgment dismissing the appeal in April 2000. A copy of the record and
judgment in the bail appeal is attached hereto marked "A". This fact was not
brought to the attention of the presiding judge before or during the trial or
before judgment was delivered. The accused contends that the presiding
judge would have been aware of the evidence adduced during the bail
application at the criminal trial, but when the fact of the earlier bail appeal was
brought to the attention of the presiding judge in 2008 he had no independent
recollection of being aware of it at the time of the criminal trial. He considers
that, had he been aware of that fact before the trial started he would have
informed the legal representatives thereof and would probably have arranged
for another colleague to hear the matter. Had the fact been disclosed during
the trial he might also then have recused himself as the presiding judge.'
As has been mentioned, leave to appeal against the appellant's convictions
and sentences was also granted.

[6] Both counsel for the appellant and the State were agreed that there is
no indication on the record that the trial judge showed any bias. A thorough
perusal of the record has led me to the same conclusion. I could find no
evidence of any bias on the part of the court a quo. Counsel for the appellant
argued, however, that the proper enquiry is not whether the record exhibits
any sign of bias by the presiding judge, but rather whether the ordinary
reasonable lay person would have a reasonable apprehension of bias in the
circumstances of this case.

[7] The appellant was charged with murder and the unlawful possession of
a firearm and ammunition. The particulars of the murder charge were that on
or about 9 October 1999 he unlawfully and intentionally killed Mandla Mda, a
53 year old male person (the deceased) at or near Fort Beaufort Hospital with
a firearm. It is common cause that the firearm that was used in the shooting of
the deceased belonged to Mr Jacobs (accused 3), but was in the possession
of the appellant. At the bail application the appellant denied that he killed the
deceased. He testified that he never entered the hospital where, it was

common cause, the deceased was shot and killed on the day in question.
During the trial, however, the appellant admitted that he had indeed entered
the hospital and that he had shot the deceased. He also admitted that the
deceased died as a result of the injuries he sustained from shots fired by him
(appellant). He testified that when he shot the deceased he was acting in self-
defence.

[8] Counsel for the appellant submitted that an ordinary reasonable person
in the circumstances of this case 'would have a reasonable apprehension that
the presiding officer who had heard the bail appeal might be biased when
hearing the trial'. This, according to counsel, was because (a) the appellant
had made 'an about turn in his defence to the murder count'; (b) at the bail
hearing an allegation was made of a previous assault in which the appellant
had been involved and where he had allegedly used a firearm; and (c) the
presiding judge had himself indicated that, if he had been confronted with
these facts before the commencement of the trial, he might well not have
proceeded with it. Counsel contended further that, if an unsuccessful
application had been made for the recusal of the presiding judge, the trial
would have been a nullity. And because an ordinary reasonable person
would, in this case, have had a reasonable apprehension of bias, it should be
found, even in the absence of an application for a recusal, that the
proceedings fell short of the constitutional guarantee of a fair trial and thus a
failure of justice had occurred.

[9] The record of the bail proceedings formed part of the record before us.
On the question of an alleged previous use of a firearm during an alleged
assault, the appellant testified that he had never been charged with any
offence involving an assault where he was alleged to have used a firearm,
although his firearm was subsequently confiscated by the police. He therefore
had no criminal charges pending against him. In refusing bail the regional
magistrate made no credibility findings against the appellant, nor against the
latter's co-accused. He refused bail purely on the basis that the appellant had
failed to adduce evidence to satisfy him that exceptional circumstances

existed which, in the interests of justice, permitted his release.1 In the appeal
against the refusal of bail, Froneman J found no fault with the magistrate's
reasoning and conclusion. In doing so he made no credibility findings.2

[10] Section 322(1)(a) of the Criminal Procedure Act ('the Act') provides
that, in a case of an appeal against a conviction or of any question of law
reserved, the court of appeal may allow the appeal if it thinks that the
judgment of the trial court should be set aside on the ground of a wrong
decision of any question of law or that on any ground there was a failure of
justice. It was contended on behalf of the appellant that by presiding in the
appellant's trial Froneman J committed an irregularity. The Constitutional
Court has held that the meaning of the concept of a failure of justice in
s 322(1) of the Act must now be understood to raise the question whether the
alleged irregularity stated in the special entry has led to an unfair trial.3

[11] What is of importance in this matter is that no application was made for
the trial judge's recusal. Counsel for the appellant submitted that during the
trial neither the appellant, nor his counsel, it seemed, was aware of the fact
that the trial judge had also heard the bail appeal, as the appellant was not
represented by the same firm of attorneys in the regional court and in the High
Court. Section 60(11B)(c) of the Act prescribes that the record of the bail
proceedings, excluding information relating to the accused's previous
convictions or charges pending against him or her or whether he or she has
been released on bail in respect of those charges, shall form part of the record
of the trial of the accused following upon such bail proceedings. It is therefore
highly probable, in my view, that the appellant's legal representative at the trial
would have had sight of the record of the bail proceedings before the regional
magistrate and on appeal at some stage during the trial or even before its
commencement. It must therefore be inferred that the appellant's legal

1 Section 60(11)(a) of the Criminal Procedure Act 51 of 1977.
2 Compare S v Somciza 1990 (1) SA 361 (A) at 365H-I, where this court held that it was
highly undesirable that an accused who had been found guilty by a magistrate and whose
conviction and sentence had been set aside, should be retried, or that his trial should be
continued, before the same magistrate, who had made strong credibility findings in respect of
all the State witnesses.
3 S v Jaipal 2005 (1) SACR 215 (CC) para 39.

representative was aware that Froneman J had heard the appellant's bail
appeal, but that he took a conscious decision against asking for the judge's
recusal in accordance with his instructions and the appellant's defence.

[12] In President of the Republic of South Africa & others v South African
Rugby Football Union & others4 the Constitutional Court held that a judge who
sits in a case in which she or he is disqualified from sitting because, seen
objectively, there exists a reasonable apprehension that she or he might be
biased, acts in a manner inconsistent with s 34 of the Constitution and in
breach of the requirements of s 165(2) and the prescribed oath of office.
Because of the failure, on the part of the appellant and his legal
representative, to apply for the recusal of the trial judge, the inference must be
that there was no reasonable apprehension of bias before and during the trial.
But, on the assumption that none of them had realised that Froneman J had
dealt with the bail appeal, this court has said that the special entry procedure
'is a useful, or perhaps even necessary, one when the irregularity or illegality
complained of is discovered only after the conclusion of the trial'.5

[13] It seems to me that where, as in the present matter, no application was
made for the trial judge's recusal before or during the proceedings, and the
judge never entertained the question of his or her recusal in his or her mind,
actual bias would have to be proved for an appeal, based on a special entry,
to succeed. In those circumstances, the convicted accused's weapon would
be the record of the proceedings and the reasoned decision of the presiding
officer which allow for close scrutiny for any evidence of bias. As counsel for
the appellant has conceded, there is nothing on the record in the present
matter to indicate that the trial judge was in any way biased. In view of the fact
that counsel made no submissions relating to the merits of the appeal on the
murder conviction, and wisely so, it follows that the appeal in respect of that
conviction must fail.

4 1999 (4) SA 147 (CC) para 30.
5 Sefatsa & others v Attorney-General, Transvaal, & another 1989 (1) SA 821 (A) at 843H.

[14] I proceed to deal with counts 3 and 4 (unlawful possession of a firearm
and ammunition). It is common cause that the firearm (a 9mm calibre Norinco
pistol) with which the appellant shot and killed the deceased was the property
of Mr Jacobs (accused 3). The facts that led to the appellant's being in
possession of the firearm and ammunition are briefly the following. The
appellant, his erstwhile co-accused and the deceased, were all members of
the Fort Beaufort branch of Uncedo Taxi Association, which had split into two
factions. The appellant and his co-accused belonged to a small faction, while
the deceased was part of the main faction. There were hostilities between the
two factions.

[15] During the afternoon of 9 October 1999 a fight broke out at the Fort
Beaufort Taxi rank involving an assault upon the appellant by certain
members of the main faction and during which Mr Jacobs was stabbed.6
Having fallen onto the ground as a result of being stabbed and whilst being
assaulted further, Mr Jacobs managed to draw his licensed firearm and fired
three shots in the direction of his assailants, who scattered and moved away
from him. This gave him an opportunity to get up and run to the appellant's
combi where he found the appellant, Mr Twani, and a Mr Thamsanqa
Grootboom. (There was some evidence that at least two shots were also fired
subsequently by a member of the main group.) It is not in dispute that the
appellant, Mr Twani, and Mr Jacobs left the scene in the appellant's combi
which was driven by Mr Grootboom. As they drove away Mr Jacobs replaced
the magazine in his firearm with a fully loaded one, but then requested that he
be taken to the hospital as he was feeling weak as a result of the stab wound.
Upon their arrival at the Fort Beaufort Provincial Hospital Mr Twani called for a
stretcher.

[16] It is common cause that Mr Jacobs did not enter the Fort Beaufort
Hospital. He testified that after their arrival at the hospital he was taken out of
the combi and conveyed in a bakkie that was driven by one Mr Xolani
Nondumo, to a hospital at Alice, where he was admitted. It was at the hospital

6 The acceptance of Mr Jacobs' evidence by the court a quo was not challenged.

at Alice where the appellant later informed him that he (appellant) had taken
possession of his shoes, firearm and certain other personal items.
[17] The appellant testified that on their way to the Fort Beaufort Hospital
they7 enquired from Mr Jacobs as to how he was feeling. The latter did not
respond, but his firearm 'dropped to the combi'. The appellant took possession
of it because, he said, 'the combi was mine'. When asked under cross-
examination whether he had a licence to possess the firearm he said:
'M'Lord, the car that belongs to . . . myself, the firearm of accused no 3
dropped into the car belonging to me, if I live [leave it?] and that firearm is
found just lying in the car belonging to me, I am the first person to be asked
about it.'
From this explanation I think it can be accepted that the appellant's intention
was to safeguard Mr Jacobs' firearm and to return it to him at the appropriate
time.

[18] It was not in dispute at the trial that at all relevant times the appellant
was the holder of a licence to possess a firearm and did indeed lawfully
possess one.8 At the end of the appellant's cross-examination the following is
recorded:
'And I put it to you lastly that you were in an unlawful possession of Mr
Jacobs' firearm and ammunition . . .. That is correct.'
The appellant's legal representative did not seek to clarify this response in re-
examination.

[19] In this court Mr Els, for the State, submitted that the appellant should
not have been convicted on count 4 (unlawful possession of ammunition). I
agree. It is alleged in the indictment that the appellant 'unlawfully had nine
rounds of 9mm calibre ammunition in his possession, whilst not being in lawful
possession of a firearm from which the aforementioned ammunition could be
discharged'. As has been mentioned above, the appellant lawfully possessed
a firearm from which, according to his undisputed evidence, 9mm calibre

7 The appellant said: '. . . we enquired from Mr Jacobs . . ..'
8 He described it as a '9mm CZ'.

ammunition could be discharged. It follows that his appeal against his
conviction on count 4 must succeed.

[20] In respect of the unlawful possession of the firearm counsel for the
appellant contended that it is reasonably possible that the appellant did not
consider his taking possession of the firearm as unlawful and that he should
therefore receive the benefit of the doubt.  Counsel argued that, in taking
possession of the firearm under the circumstances in which he did, the
appellant thought that he was acting with due care and diligence. In convicting
the appellant on this charge (and that of the unlawful possession of
ammunition) the trial court reasoned as follows:
'As far as the unlawful possession of the firearm and ammunition are
concerned the accused admitted that he did not have a licence for the firearm
and the ammunition. His taking into possession of these items to safeguard
them does not appear to be covered by any exemption in the relevant Act.
Even if there was an implied permission to safeguard the firearm on behalf of
accused no 3 there was no need to take the firearm with him into the hospital.
The mere fact that he did so adds to the suspicion of his intent in going into
[the] hospital.'
It is necessary to place these remarks by the trial judge in their proper context.

[21] I have mentioned above that when the appellant and his companions
arrived at the Fort Beaufort Hospital with the injured Mr Jacobs, Mr Twani
called for a stretcher. The evidence was that on the advice of Ms Xoliswa
Mahlanyana, an employee at the hospital, Mr Twani, in the company of the
appellant, went into the casualty section where the former took a stretcher
which he pushed out and towards the appellant's combi and there assisted in
placing Mr Jacobs on it. At that stage, however, the deceased, who had been
grazed by a bullet in his right hip at the taxi rank, was already inside the
casualty section, having been conveyed there by a colleague, Mr Fetty
Notana. He had been placed on a wheelchair by a male nurse, Mr Themba
Mvimbeli. The appellant apparently saw the deceased and, instead of going
back to his vehicle with Mr Twani to assist Mr Jacobs, he advanced towards
the deceased, who was being wheeled away by Mr Mvimbeli, precisely so as

to hide him from members of the appellant's group.9 A nursing sister, Ms
Zukiswa Dasheka, testified that she attempted to intervene by blocking the
appellant from getting to the deceased, but that the appellant warned her to
move aside 'if you don’t want me to shoot you'. From a distance of
approximately four to five paces, according to Ms Mahlanyane, the appellant
produced a firearm and shot the deceased three times. He did so despite
pleas for mercy from the deceased, who had raised both hands, and Mr
Mvimbeli. Before the appellant had produced the firearm, he uttered the
following words, directing himself at the deceased: 'Oh, you are here', and 'I
have arrived now', or words to that effect. The deceased subsequently died
from injuries sustained as a result of the shooting. It was upon hearing these
shots that Mr Twani suggested that Mr Jacobs be taken to the hospital at
Alice.

[22] Possession of a firearm without a licence was, at the relevant time,
prohibited by s 2 of the Arms and Ammunition Act,10 except in certain
circumstances prescribed in the Act, but which are not relevant for present
purposes. A person who contravened the provisions of s 2 made himself or
herself guilty of an offence (s 39(1)(h)). However, proof of possession of a
firearm without a licence did not necessarily lead to a conviction. This court
has held that mens rea, in the sense of knowledge of unlawfulness
(wederregtelikheidsbewussyn), was an element of the offence11 and the State
bore the onus of proving it.12

[23] Mr Jacobs was unable to explain how his firearm came to be in the
possession of the appellant. In those circumstances, the appellant's version
that he took possession of the firearm when it 'dropped to the combi' and his
explanation for taking it into his possession must, in my view, be accepted.
Properly construed the appellant's version was that he took the firearm
because he realised that if it were to be found in his vehicle he would be

9 The deceased had told Mr Mvimbeli about the fighting at the taxi rank.
10 75 of 1969, now repealed by the Firearms Control Act 60 of 2000.
11 S v Potwane 1983 (1) SA 868 (A).
12 Compare S v Ngwenya 1979 (2) SA 96 (A) at 100A-C.

expected to explain its presence. I am prepared to accept that when he took
possession of the firearm the appellant did not have the necessary mens rea
to found criminal liability. The same, however, cannot be said after the
shooting. I agree with counsel for the State that after he had intentionally shot
the deceased in the circumstances testified to by the three hospital employees
and accepted by the trial court, the appellant could not have believed that he
was still holding the firearm innocently. He knew that he was in possession of
the firearm without a licence and that he had used it in the commission of an
offence. He must have realised, after the shooting, that he had just committed
an offence with a firearm for which he had no licence. The mens rea was
therefore established. It cannot be argued that, at the time the appellant
decided to use the firearm to shoot the deceased, he was still merely
safeguarding it. It follows, in my view, that the appellant was correctly
convicted of the unlawful possession of the firearm.

[24] No submissions were made on behalf of the appellant regarding the
sentence imposed upon him by the trial court in respect of this conviction. It
therefore remains for me to consider the appeal against the sentence of 25
years' imprisonment imposed in respect of the murder conviction. In
considering sentence the court a quo took the following factors into account:
The appellant was, at the time of the commission of the offence, 27 years of
age, unmarried, but with one child whom he maintained. During 1996 he was
injured in a taxi-related shooting as a result of which he had to undergo
surgery and, at the time of the trial, was still receiving medical treatment for
the injury he had sustained. The court found that the appellant 'did not go to
the hospital in a pre-meditated fashion to shoot the deceased' and that he had
been unaware of the deceased's presence there. The fact that the appellant
had been in custody for almost fourteen months since the day of the incident
was also taken into account. The court then went on to say:
'I accept these submissions on your behalf by your legal representative and
an acceptance of these submissions means that there is no obligatory
sentence that you must be imprisoned for life.'

[25] It seems to me, however, that the court a quo did not apply its mind to
the provisions of s 51(2)(a)(i) of the Criminal Law Amendment Act13 which
ordained that a first offender, who had been convicted of murder where the
murder was not planned or pre-meditated, shall be sentenced to imprisonment
'for a period not less than 15 years'.

[26] The appellant was a first offender. There is no indication, on the record,
that the court a quo considered the statutory minimum sentence of 15 years'
imprisonment for first offenders as a starting point for arriving at an
appropriate sentence. The failure by the court a quo to apply its mind to the
provisions of the relevant Act constitutes a misdirection, in my view. This court
is therefore at large to consider sentence afresh.

[27] Counsel for the State informed us that he would not advance any
submissions to support a sentence in excess of the prescribed minimum of
fifteen years' imprisonment. It is true, as observed by the court a quo, that the
appellant had committed the most serious crime that one could imagine,
namely the unlawful killing of another human being. The court also remarked
that the appellant 'killed this person in a hospital when he was defenceless in
a wheelchair'. It is also true that offences related to taxi violence were, at the
time, prevalent in the country, but I doubt whether these factors would have
driven the court below to have considered imposing a sentence in excess of
the statutory minimum of 15 years' imprisonment, had it applied its mind to the
relevant statutory provision. There is certainly nothing on the record to
indicate that the court intended to impose a sentence in excess of the
statutory minimum.14

[28] Counsel for the appellant did not contend that substantial and
compelling circumstances exist which would justify the imposition of a lesser
sentence than the prescribed minimum sentence. I am satisfied that none
exist. We were urged, however, to consider deducting, from the sentence to
be imposed, the equivalent of the period of the appellant's incarceration from

13 105 of 1997.
14 Compare S v Mbatha 2009 (2) SACR 623 (KZP).

the date of the commission of the offences to the date upon which he was
ultimately sentenced by the trial court, viz a period of approximately 14
months. In this regard counsel relied on the decision of this court in S v
Vilakazi.15 I do not think that a sentence of fifteen years' imprisonment will be
disproportionate to the seriousness of the offence (murder) committed by the
appellant. I am accordingly not persuaded that there should be any
deductions from it.

[29] In the result the following order is made:
1.
The appeal against the conviction on count 2 (murder) is dismissed.
2.
The appeal against the sentence of 25 years' imprisonment imposed
upon the appellant in respect of count 2 succeeds. The sentence is set aside
and replaced with one of 15 years' imprisonment.
3.
The appeal against the conviction and sentence on count 3 (unlawful
possession of a firearm) is dismissed.
4.
The appeal against the conviction on count 4 (unlawful possession of
ammunition) succeeds and the conviction and sentence are set aside.
5.
The sentence on count 2 is backdated to 4 December 2000, being the
date on which the sentences were imposed by the trial court.

………………………..
L MPATI P
JUDGE OF APPEAL

15 2009 (1) SACR 552 (SCA).

Counsel For Appellant:

MS E CROUS
Instructed by:

GRAHAMSTOWN JUSTICE CENTRE

GRAHAMSTOWN
Correspondents:

BLOEMFONTEIN JUSTICE CENTRE

BLOEMFONTEIN
Counsel for Respondent:
D ELS
Instructed By:

DIRECTOR OF PUBLIC PROSECUTIONS

GRAHAMSTOWN
Correspondents:

DIRECTOR OF PUBLIC PROSECUTIONS

BLOEMFONTEIN