Majikazana v The State

The appellant, Mbulelo Majikazana, was convicted in the Eastern Cape High Court, Grahamstown, of murder and unlawful possession of a firearm and ammunition under the Arms and Ammunition Act 75 of 1969. He was sentenced to 25 years' imprisonment for murder and two years and one year respectively for the firearm and ammunition offences (concurrent with the murder sentence). The victim, Mandla Mda (aged 53), was a member of a rival faction of the Uncedo Taxi Association in Fort Beaufort. On 9 October 1999, a fight erupted at the taxi rank involving the appellant and his associates. One of the appellant's co-accused, Jacobs, was stabbed and fired his licensed firearm in self-defence before leaving the scene in the appellant's combi. Jacobs' firearm "dropped" in the combi, and the appellant took possession of it. Upon arrival at Fort Beaufort Hospital, the appellant entered the casualty section and shot the deceased (who had been grazed by a bullet at the taxi rank earlier) three times from close range while the deceased was in a wheelchair. The deceased died from his injuries. After conviction and sentence on 4 December 2000, the appellant's attorney filed a late application for leave to appeal. A new attorney discovered that the trial judge, Froneman J, had previously presided over and dismissed the appellant's bail appeal on 7 April 2000, approximately seven months before the trial. This fact was not brought to the judge's attention at the commencement or during the trial. The judge indicated that had he been aware, he would have informed the parties and probably arranged for another colleague to hear the matter.

• Whether the fact that the trial judge had previously heard and dismissed the appellant's bail appeal, without this being disclosed, resulted in a failure of justice and an unfair trial
• Whether actual bias or a reasonable apprehension of bias must be established where no application for recusal was made
• Whether the appellant unlawfully possessed a firearm in contravention of section 2 of the Arms and Ammunition Act 75 of 1969, considering the element of mens rea
• Whether the appellant unlawfully possessed ammunition where he lawfully possessed a firearm capable of discharging such ammunition
• Whether the sentence of 25 years' imprisonment for murder was appropriate in light of the statutory minimum sentence under section 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997

1. Appeal against conviction on count 2 (murder) dismissed. 2. Appeal against sentence on count 2 succeeds. Sentence of 25 years' imprisonment set aside and replaced with 15 years' imprisonment. 3. Appeal against conviction and sentence on count 3 (unlawful possession of a firearm) dismissed. 4. Appeal against conviction on count 4 (unlawful possession of ammunition) succeeds. Conviction and sentence set aside. 5. Sentence on count 2 backdated to 4 December 2000 (date of original sentencing).

1. Where no application for recusal is made before or during trial and the presiding judge does not consider recusal, actual bias (not merely a reasonable apprehension of bias) must be proved for an appeal based on a special entry alleging judicial bias to succeed. 2. The offence of unlawful possession of a firearm under section 2 of the Arms and Ammunition Act 75 of 1969 requires proof of mens rea in the form of knowledge of unlawfulness. The State bears the onus of proving this element. 3. Using a firearm to commit an unlawful act (such as murder) establishes the mens rea required for conviction of unlawful possession of that firearm, even if initial possession was innocent or for safeguarding purposes. 4. A person cannot be convicted of unlawful possession of ammunition where he lawfully possesses a firearm from which that ammunition can be discharged, as this negates an essential element of the offence as charged. 5. A trial court's failure to apply its mind to prescribed minimum sentences under section 51(2)(a)(i) of the Criminal Law Amendment Act 105 of 1997 constitutes a misdirection, entitling an appellate court to impose sentence afresh.

The Court noted that it was "highly probable" that the appellant's legal representative at trial would have had sight of the bail proceedings record (which by statute forms part of the trial record under section 60(11B)(c) of the Criminal Procedure Act) and therefore would have known that Froneman J presided over the bail appeal. The Court inferred that counsel took a conscious decision not to seek recusal in accordance with instructions and the appellant's trial strategy (particularly given the change in the appellant's defence from denial to self-defence). The Court also observed that section 60(11B)(c) prescribes that the record of bail proceedings (excluding previous convictions or pending charges) shall form part of the record of the subsequent trial. The Court remarked that it was "highly undesirable" (citing S v Somciza 1990 (1) SA 361 (A)) for an accused to be retried before the same magistrate who had made strong credibility findings, though distinguished this from the present case where no credibility findings were made during the bail proceedings. The special entry procedure is described as "useful, or perhaps even necessary" when an irregularity is discovered only after the conclusion of the trial (citing Sefatsa & others v Attorney-General, Transvaal, & another 1989 (1) SA 821 (A)).

This judgment is significant for several principles in South African criminal law and procedure: **Fair trial and judicial bias:** It clarifies that where no application for recusal is made and no irregularity occurred during trial, an appellant relying on a special entry procedure must prove actual bias (not merely a reasonable apprehension of bias) to succeed on appeal. Mere retrospective concern is insufficient. **Special entry procedure:** The case illustrates the utility of the special entry procedure under section 322(1)(a) of the Criminal Procedure Act when an irregularity or illegality is discovered only after trial. However, it limits the circumstances in which such a procedure will succeed. **Mens rea in firearms offences:** The judgment confirms that mens rea (knowledge of unlawfulness) is an essential element of the offence of unlawful possession of a firearm under section 2 of the Arms and Ammunition Act 75 of 1969. It establishes that using a firearm for an unlawful purpose (such as committing murder) can establish the requisite mens rea, even where initial possession may have been innocent. **Sentencing - mandatory minimums:** The case demonstrates the importance of trial courts applying their minds to prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997. Failure to do so constitutes a misdirection entitling an appellate court to reconsider sentence afresh. **Ammunition possession:** The judgment clarifies that possession of ammunition is not unlawful where the accused lawfully possesses a firearm capable of discharging that ammunition, as required by the statutory definition of the offence.