Makhudu v Director of Public Prosecutions

The appellant, a sergeant in the South African Police Service, was charged with attempted murder and convicted in the regional court, Pietersburg, of assault with intent to do grievous bodily harm. The incident occurred at the Seshego police station where the complainant had reported pursuant to a charge of crimen injuria laid by the appellant. While the complainant was waiting in an office, the appellant entered and shot him twice with his service pistol, causing serious injuries. There was a dispute as to whether the appellant had been provoked by insults from the complainant. The magistrate convicted the appellant and sentenced him to seven years’ imprisonment. On appeal, the magistrate’s ex tempore judgment on sentence could not be reconstructed, as it had not been recorded and the magistrate could not recall his reasons.

The appeal succeeded. The sentence of seven years’ imprisonment was set aside and replaced with a sentence of five years’ imprisonment.

The case is significant for clarifying South African law on appeals and reviews where a magistrate’s judgment on sentence is missing or cannot be reconstructed. It affirms the accused’s right to a meaningful appeal and delineates when an appellate court is entitled to consider sentence afresh. The judgment also corrects and criticises the reasoning in S v Adams, providing important guidance on the duties of magistrates and reviewing courts.