Mandla Mishack Mlimo v The State

On 6 November 2005, at approximately 18:30 in Laudium, Pretoria, Mr Abdul Rahman (deceased) and his wife Mrs Alida Rahman returned home with their two children. When the deceased got out of the vehicle to open the partially open gate, Mrs Rahman tried to warn him. As she reached for the car hooter to raise an alarm, a hand clutching a gun emerged from behind the deceased and a shot was fired. Mrs Rahman was shot in her right hand and the deceased was shot in the chest and died. The appellant was the licensed owner of a semi-automatic pistol (40 S&W Calibre Vektor Model SP2, serial number 101368). Ballistics testing by Superintendent Sindane linked this firearm to the bullets that killed the deceased and injured Mrs Rahman. The firearm was recovered from under a bed at the house of the appellant's friend, Mr Ernest Matlou, where the appellant had allegedly left it for safekeeping. The appellant was arraigned in the Pretoria High Court before Els J on charges of murder, attempted murder and robbery with aggravating circumstances. He pleaded not guilty and gave no evidence in his defense.

• Whether the trial judge's conduct during the trial rendered it unfair
• Whether the evidence of Inspector Knoesen was unreliable and open to constitutional challenge
• Whether the trial court was entitled to accept Superintendent Sindane as an expert witness despite him not having completed a diploma in ballistics
• Whether the ballistics evidence linking the appellant's firearm to the shooting was properly admitted and reliable
• Whether the twelve-year sentence for attempted murder should run concurrently with the life sentence for murder

The appeal against both convictions and sentences was dismissed. The appellant's conviction for murder with a sentence of life imprisonment and conviction for attempted murder with a sentence of twelve years' imprisonment were upheld.

The binding legal principles established are: (1) A trial judge's active participation and occasional impatience does not render a trial unfair per se, provided cross-examination is not impeded, the defense is allowed to lead evidence, and the accused's interests are adequately protected. The test is whether justice was done and whether the judge's open-mindedness, impartiality and fairness were manifest to all concerned. (2) Formal academic qualifications are not a sine qua non for a witness to be accepted as an expert. The court must be satisfied that the witness possesses sufficient skill, training or experience to assist it, measured against the evidence to be given. Extensive practical experience in a field (such as 3085 ballistics cases over 6 years) can qualify a witness as an expert even without completing formal qualifications. (3) Where the State establishes a ballistic link between an accused's firearm and a shooting, the accused was in possession of the firearm, and no countervailing evidence or explanation is provided by the accused, the inference that the accused committed the shooting is unavoidable. (4) Under s 39(2)(a)(i) of the Correctional Services Act 111 of 1998, a determinate sentence runs concurrently with a life sentence as a matter of law.

The court made obiter observations emphasizing that undue impatience and irritability on the part of a judicial officer is inappropriate and undesirable, and that trial judges and magistrates must ensure that justice is done by conducting trials in a manner that manifests open-mindedness, impartiality and fairness to all concerned, especially the accused. This is particularly important where an accused is represented by junior and inexperienced counsel or attorneys who might easily be intimidated. The court also commented that there is nothing wrong with officials working in tandem when investigating cases, in response to the challenge that Sindane appeared to have sought guidance from another official during ballistics testing. On sentencing, the court noted obiter that while the trial court did not expressly order the sentences to run concurrently, the prison authorities are obliged to apply s 39(2)(a)(i) of the Correctional Services Act, which provides for concurrency by operation of law.

This case is significant in South African criminal law and evidence for establishing important principles regarding: (1) what constitutes an unfair trial based on judicial conduct - affirming that active judicial participation and occasional impatience do not necessarily render a trial unfair if cross-examination is not impeded and the accused's interests are protected; (2) the qualification requirements for expert witnesses, particularly that formal academic qualifications are not essential where a witness has sufficient practical experience and training in the relevant field; (3) the acceptance of ballistics evidence and the standards for qualifying ballistics experts; and (4) the application of s 39(2)(a)(i) of the Correctional Services Act regarding concurrent sentences when a life sentence is imposed alongside a determinate sentence.