REPORTABLE
Case number: 135/2000
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
M E MAKHUDU
APPELLANT
and
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
CORAM:
MARAIS, CAMERON JJA, et MTHIYANE AJA
DATE OF HEARING:
16 FEBRUARY 2001
DELIVERY DATE:
16 MARCH 2001
Reconstruction of record - ex tempore judgment on sentence unable to be
reconstructed - consequence in considering appeal against sentence.
Sentence - police sergeant shoots and injures member of public at police station
using service pistol after provocation - appropriate sentence.
______________________________________________________________
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JUDGMENT
______________________________________________________________

MTHIYANE AJA
MTHIYANE AJA:
[1] The appellant was charged with attempted murder and convicted of assault with
intent to do grievous bodily harm in the regional court, Pietersburg.  He was sentenced
to seven years’ imprisonment.  An appeal against sentence to the Transvaal Provincial
Division failed, and leave to appeal was refused.  Leave to appeal to this Court was
granted on application to it.
[2] The background to the conviction may be summarized briefly.  The appellant,
a sergeant in the South African Police Services, stationed at Seshego, had laid a charge
of crimen injuria against the complainant.  At the request of the investigating officer,
one detective Makgakane, the complainant reported at the Seshego police station but
found that Mr Makgakane was not available.  He was then asked to wait for him in one
of the offices.  While the complainant was waiting for his return, the appellant entered

the office and shot him twice, once above the left knee and once in the right hip.  One
of the bullets penetrated the right hip and remains lodged in the left pelvis, and was not
removed because it was considered too dangerous to do so.  After the shooting, one
of the appellant’s colleagues took possession of the firearm and the complainant was
removed to hospital.
[3] There was a dispute as to the events preceding the shooting.  The appellant’s
version in this regard was recorded as follows by the magistrate:
“. . . Oggend 29 Julie 1997 aan diens.  Plus minus 08:00 alleen in my
kantoor.  My kantoor toegemaak.  Iemand maak skielik die deur oop
sonder om te klop.  Toe ek na deur kyk sien ek die klaer.  Hy beledig my
toe hy begin inkom.  Sê ek het vir kak, Sotho ‘masipha’ laat arresteer.
Hy sê daardie dag wil hy my sy ware kleure wys.  Gesê ek is dom.  Ek
kom van die plase af.  Hy gaan niks met my praat nie.  Sê sy prokureurs
gaan my laat kak.
Dit het vinnig gebeur.  Ek sê hoekom elke keer as jy my ontmoet vertel
jy my so iets.  Hy sê voertsek hy praat niks met my nie.  Hy trek deur
hardop toe.  Dit klap my uit.  Ek gaan kyk waarheen gaan hy.  Op daardie
oomblik was ek baie kwaad gewees.”

The appellant then went on to describe how he lost control of himself and how he shot
the complainant.
[4] The complainant denied that he insulted the appellant.  He testified that while
waiting for Mr Makgakane’s return the appellant entered the office and greeted him.
When the complainant did not return the greeting, the appellant swore at him, drew out
his service pistol and shot him twice.  He alleged that the appellant said that he would
kill him.  He denied that he went to the appellant’s office or that he knew where it was
situated.
[5] It is not apparent from the reconstructed record (as to which more later) how
the magistrate resolved the above disputes because that part of his judgment which
gave his reasons for convicting the appellant is lacking and he is unable to recall what
he said (and, presumably, found proved).  In as much as the appellant does not
question his conviction on appeal, no more need be said about this aspect of the

matter.  For purposes of the intermediate appeal the court a quo (Van der Walt J et
Coetzee AJ) accepted that the appellant was provoked because it considered that the
appellant, a policeman of eight years’ standing, would not otherwise have acted as he
did.
[6] It is against this background that we are called upon to deal with the appeal
against sentence.  When the matter came before the court a quo what was placed
before it was a partly reconstructed record.  The magistrate’s judgment on sentence
was not available.  It had not been mechanically recorded and the magistrate stated that
his entire judgment on sentence was delivered ex tempore, and that he could not
remember what he had said in that respect.  Notwithstanding this, the magistrate
declared that he had considered all the “vonnis opsies” and stood by the seven year
sentence he imposed on the appellant.
[7] This then brings me to the two issues raised in this appeal.  First, it was argued

that the court a quo did not have a proper record before it on which the appeal against
sentence could be heard, yet it approached the matter as though there was an adequate
record before it.  By so doing, so the argument goes, the learned judges, instead of
dealing with the question of the sentence on the footing that they were at large to
consider the question afresh, applied the more restrictive test traditionally applied when
considering appeals against sentence and consequently misdirected themselves.  The
second point raised was that by mistakenly thinking that the incident giving rise to the
charge occurred on 29 July 1992 rather than on 29 July 1997, the court a quo was led
to incorrectly exaggerate the extent of the pain suffered by the complainant (who
testified in March 1998 that he was still suffering pain) and consequently over-
emphasized the seriousness of the consequences of the offence.
[8] I proceed to deal with the first issue.   The effect of the magistrate’s inability to
reconstruct the record in so far as it related to providing the reasons for having

imposed the sentence which he did, was that when the matter came before the court
a quo on appeal it was not possible to assess whether or not the sentence was
possibly vitiated by misdirection or to assess whether there had been a proper exercise
of judicial discretion.  That notwithstanding, the learned judges dealt with the question
of sentence on the footing that there could be no interference with the sentence in the
absence of material misdirection or unless the sentence imposed differed so
substantially from that which they thought appropriate that it could be said to be
startlingly inappropriate.  In so doing the court a quo applied a wrong test and
unjustifiably inhibited itself in regard to the extent to which it could interfere.  That
much is evident from its ultimate conclusion that “the sentence imposed by the
magistrate is not shocking” and from what was said in refusing leave to appeal,
namely, “Ek is nie oortuig dat die landdros nie sy diskresie behoorlik uitgeoefen het
toe hy hierdie vonnis van 7 jaar vir hierdie misdaad opgelê het nie.”    By adopting the

approach which it did, the court a quo failed to recognize the insuperable obstacles
it was placing in the way of the appellant in prosecuting his appeal in a meaningful way.
In the circumstances (for which the appellant was not to blame) the court a quo was
obliged to regard itself as being at large to consider the question of sentence entirely
afresh and without regard to the sentence imposed by the magistrate. Its failure to do
so necessitates this Court having to undertake that task.
[9] Because of the view which I take of the first issue I do not consider it necessary
to consider the materiality of the court a quo’s mistaken view of the date of the
offence.  In any event, it is not that court’s sentence which is being appealed against
but the magistrate’s sentence.
[10]     It is clear that if the appellant is to be afforded the unfettered right of appeal to
which he was then entitled, this Court must of necessity be at large to consider the
question of sentence afresh in the light of all the circumstances.  The absence of the

magistrate’s reasons for sentence and his inability to recollect them has disabled the
appellant from demonstrating the existence of any misdirections or any other failure
to exercise a proper sentencing discretion.  The possibility that the judgment on
sentence did suffer from such defects cannot simply be arbitrarily excluded.  See S v
Masuku and Others 1985(3) SA 908 (A) at 912 G - I.
[11] Tempting as it is to seek to also draw support for that approach from the
decision in S v Adams 2001(1) SACR 59, I am constrained to say that I consider the
adoption and application of that approach in that case to be clearly wrong and,
because its implications for the reviewing process are serious, it is necessary to say
so.  The reasoning there adopted, namely, that simply because a magistrate has given
an oral judgment which has not been recorded in any manner, a reviewing court is at
large to decide the case on the recorded evidence, is based upon a misunderstanding
of the principles laid down in the decided cases cited in the judgment and a

misapplication of them.
[12] Those principles do not apply where the magistrate did in fact give an oral
judgment at the trial and is in a position, if required by a reviewing judge to do so, to
furnish again ex post facto the reasons for judgment or sentence.  Neither the common
law nor any statute obliges a magistrate to ensure that his or her judgment is recorded
in such a way that a contemporaneous record of it comes into being.  Indeed there are
magistrates’ courts where neither recording facilities nor shorthand writers are available
and magistrates have perforce to record the evidence and their rulings, verdicts and
sentences in longhand.  They cannot be expected to do the same while orally delivering
judgment.  If a reviewing judge entertains doubt about the correctness of a conviction
or a sentence in such a case he or she must call for the magistrate’s reasons for the
conclusions reached.  If a magistrate furnishes them, the reviewing court is in the same
position as if those reasons had been recorded at the time they were given in court and

[13] Where, as in the present case, the magistrate is unable to furnish his or her
reasons that is an entirely different matter and the principles applied by the court in
Adams’s case come into play.  In the latter case there is nothing to suggest that the
magistrate was unable to furnish reasons and the decision to invoke those principles
must be regarded as erroneous.
[14] The decision in S v Masuku and Others (supra) on which the court in Adams’s
case relied is not in point.  The judicial officer there was a judge, not a magistrate.  The
judge had given no reasons at all either orally or otherwise for his decision at the time
and was entirely functus officio.  It was not competent for him in law to give his
reasons for the first time ex post facto.  A magistrate who did give reasons at the time
but whose reasons were not recorded, is not entirely functus officio in the same sense
in that express statutory provision is made for his reasons to be furnished again ex post
facto, if required.  (Rule 67(5) of the Magistrates’ Courts Act 32 of 1944; s 304(2)(a)

upon which the court in Adams’s case also relied for the proposition that a magistrate
is obliged to have his or her judgment recorded in some or other form is in fact
authority for the proposition that he or she is not so obliged.
[15] In considering the question of sentence afresh I bear in mind the following
mitigating factors.  The appellant is a first offender.  He  has lost his  employment as
a result of this incident.  He will have to live with the knowledge that his folly will cost
his wife and three children dearly. There is also the probability that he had been
subjected to insulting and humiliating provocation in the past and that more of the
same on the day in question enraged him.
[16] As against that, there are strongly aggravating features. The appellant was a
police officer at the time.  He shot twice an unarmed member of the public in the
police station in full view of his colleagues, using a weapon issued to him to enable him
to protect the public.  He was no longer a very young man (he was 33 years of age)

better of him.  His behaviour was utterly reprehensible and calls for a severe response.
[17] In my view, considering all the circumstances and balancing the seriousness of
the offence against the appellant’s personal circumstances, and taking into account
the interests of the community, a sentence of five years’ imprisonment would be
appropriate.  It will suffice,  I believe, to bring home to the appellant and to anyone
who may be tempted to follow his example, the seriousness of the matter.
[18] It follows that the sentence of seven years’ imprisonment imposed by the
magistrate cannot stand and must be set aside.
[19]     I make the following order:
1.
The appeal succeeds.
2.
The sentence of seven years’ imprisonment is set aside and replaced with
a sentence of five years’ imprisonment.
____________________
K K MTHIYANE
ACTING JUDGE OF
APPEAL

MARAIS JA
)Concur
CAMERON JA
)