M E Makhudu v Director of Public Prosecutions

The appellant, a police sergeant stationed at Seshego police station, shot and injured a complainant twice (once above the left knee and once in the right hip) at the police station using his service pistol. One bullet remained lodged in the complainant's pelvis as it was too dangerous to remove. The appellant had previously laid a charge of crimen injuria against the complainant. On 29 July 1997, the complainant came to the station at the request of an investigating officer. There was a factual dispute: the appellant claimed he was provoked by insulting language from the complainant who entered his office; the complainant denied insulting the appellant and testified that the appellant simply shot him after he failed to return a greeting. The appellant was convicted of assault with intent to do grievous bodily harm (having been charged with attempted murder) and sentenced to seven years' imprisonment by the regional court, Pietersburg. An appeal to the Transvaal Provincial Division failed.

• Whether the court a quo applied the correct test when considering an appeal against sentence where the magistrate's ex tempore judgment on sentence could not be reconstructed
• What sentence is appropriate for a police officer who shoots an unarmed member of the public at a police station using a service pistol after provocation
• Whether a reviewing court is at large to decide a case where a magistrate's oral judgment was not recorded

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

Where a magistrate's judgment on sentence was delivered ex tempore and cannot be reconstructed, and the magistrate is unable to furnish his or her reasons ex post facto, an appeal court is at large to consider the question of sentence entirely afresh without regard to the sentence imposed by the magistrate. The absence of reasons disables an appellant from demonstrating misdirections or failures to exercise proper sentencing discretion, and the possibility of such defects cannot be arbitrarily excluded. A magistrate who gives oral reasons that are not recorded is not functus officio in the same sense as a judge who gives no reasons, as statutory provision allows the magistrate to furnish reasons ex post facto if required by a reviewing judge. Magistrates are not obliged by common law or statute to ensure their judgments are contemporaneously recorded.

The Court stated that the decision in S v Adams 2001(1) SACR 59 was clearly wrong and represented a misunderstanding and misapplication of established principles. The Court noted it was tempting to draw support from Adams but felt obliged to state its error given the serious implications for the reviewing process. The Court observed that there are magistrates' courts where neither recording facilities nor shorthand writers are available, and magistrates must record evidence and rulings in longhand - they cannot be expected to do the same while orally delivering judgment. The Court emphasized that if a reviewing judge has doubts about a conviction or sentence where reasons were not recorded, the judge must call for the magistrate's reasons, and if furnished, the reviewing court is in the same position as if those reasons had been recorded contemporaneously.

This case established important principles regarding appeals against sentence where the trial court's reasons cannot be reconstructed. It clarifies the distinction between situations where a magistrate gave no reasons at all versus where reasons were given orally but not recorded. It affirms that appeal courts must be at large to reconsider sentence where the absence of recorded reasons (through no fault of the appellant) prevents proper appellate review. The case also corrected the erroneous approach in S v Adams regarding when reviewing courts are at large. Additionally, it provides guidance on sentencing for police officers who abuse their position and service weapons to assault members of the public.