Recent Case: Criminal procedure

JurisdictionSouth Africa
AuthorMichael Cowling
Citation(2001) 14 SACJ 414
Pages414-425
Published date24 May 2019
Date24 May 2019
414
SACJ •
(2001) 14 •
SAS
Criminal Procedure
MICHAEL COWLING
University of Natal, Pietermaritzburg
Appeal - incomplete record
In
Makhudu v Director of Public Prosecutions
2000 (1) SACR 495 (SCA) the
accused was convicted of assault with intent to do grievous bodily harm and
sentenced to seven years' imprisonment. He appealed against the sentence
which required the furnishing of the trial magistrate's reasons for imposing
such a sentence. But the magistrate's judgment on sentence was not available.
The reason for this is that it had not been mechanically recorded and neither
had it been recorded in writing. In fact, at the time of the appeal the magistrate
indicated that the judgment on sentence was delivered ex tempore and he was
no longer able to remember what he had said in this respect. However, he
submitted that he could recall having considered all the sentencing options
prior to imposing what he regarded as an appropriate and just sentence.
On appeal, the High Court considered whether the sentence imposed
induced a sense of shock. But how was the court to determine this in the
absence of any reasons by the magistrate? The court simply concluded that
the sentence was not shocking and therefore dismissed the appeal — which
was in respect of both the conviction as well as the sentence. However, as
pointed out by the Supreme Court of Appeal (at 499
b-c):
'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.' The High Court, by approaching the appeal as though
there was an adequate record before it, failed to consider that the appellant
was not to blame for these circumstances and also did not put itself in a
position from where it was able to appraise the question of sentence from an
entirely fresh perspective.
Instead the High Court did not interfere with the sentence, purely on the
basis that it did not induce a sense of shock and that it was not convinced that
the magistrate did not exercise his discretion properly when imposing the
sentence. The Supreme Court of Appeal noted (at 499e) that the absence of a
record setting out reasons means that any appellant is effectively 'disabled ...
from demonstrating the existence of any misdirections or any other failure to
exercise a proper sentencing discretion'. Thus, the finding by the High Court
that there was no indication that the magistrate had not exercised his
discretion properly was purely speculative.
(2001) 14 SACJ 414
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