Recent Case: Law of Evidence

• Date: 04 March 2021
• Published date: 04 March 2021
• DOI: https://doi.org/10.47348/SACJ/v33/i3a14
• Pages: 771-782
• Author: Visser, J.

Law of Evidence

JO-MARÍ VISSER

University of the Free State

1 Presiding officers conducting independent research to

supplement facts

In Van der Walt v S ((CCT180/19) [2020] ZACC 19; 2020 (2) SACR

371 (CC)) the Constitutional Court upheld an appeal following the

applicant’s conviction and sentence to ve years’ imprisonment by the

eMalahleni (Witbank) Regional Cour t on a charge of culpable homicide

in 2016 (at paras [1]–[2]).

The applicant, an obstetrician and gynaecologist, was accused of

providing a patient with negligent care following her child’s birth, and

that this negligence resulted in her death (at para [2]). In the court

a quo the state handed up several exhibits and adduced the testimony

of three witnesses, one of whom was an expert medical witness (at

paras [5]–[6]). The applicant assumed that all undisputed exhibits were

successfully admitted. But at the point when the court handed down

its judgment it declared some exhibits admitted, and some rejected

from admission (at para [5]).

The appeal to the Constitutional Court followed an unsuccessful

appeal to the high court and a refusal by the Supreme Court of Appeal

to grant special leave to appeal (at para [2]). While the Constitutional

Court found that the appeal on sentence did not engage its jurisdiction

and therefore refused leave to appeal against sentence (at paras [18],

[21]), the court did grant leave to appeal against the conviction on

grounds that he suffered an unfair trial in that the trial court in fringed

his right as an accused person to lead and challenge evidence as

stipulated in s 35(3)(i) of the Constitution of the Republic of South

Africa, 1996 (at para [3]).

The fair trial challenge was founded on three grounds: rst, the

magistrate in the tr ial court decided the admissibility of various pieces

of potential evidence for the rst time at the end of the tr ial, when

delivering judgment (at para [4]). This ground will be discussed under

the following subheading below.

Secondly, the applicant submitted that causation was not adequately

proved in the trial (at para [7]), but the Constitutional Court held

that this did not engage its jurisd iction and never considered this

submission (at para [17]).

As third ground, t he applicant submitted that his fair tr ial right to

adduce and challenge evidence in terms of s 35(3)(i) of the Constitution

Recent cases 771

https://doi.org/10.47348/SACJ/v33/i3a14

(2020) 33 SACJ 771

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