Makhudu v Director of Public Prosecutions

• Jurisdiction: South Africa
• Judge: Marais JA, Cameron JA and Mthiyane AJA
• Judgment Date: 16 March 2001
• Citation: 2001 (1) SACR 495 (SCA)
• Hearing Date: 16 February 2001
• Counsel: S E Motloung for the appellant. G D Baloyi for the State.
• Court: Supreme Court of Appeal

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. D

[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 E 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 F 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: G

'. . . 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. H 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 I 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 J

Mthiyane AJA

shot him twice. He alleged that the appellant said that he would A 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, B 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...