S v Hlongwa

• Jurisdiction: South Africa
• Citation: 2002 (2) SACR 37 (T)

S v Hlongwa
2002 (2) SACR 37 (T)

2002 (2) SACR p37

Citation	2002 (2) SACR 37 (T)
Case No	7326/2001
Court	Transvaal Provincial Division
Judge	Stegmann J and De Vos J
Heard	March 8, 2002
Judgment	March 8, 2002

Flynote : Sleutelwoorde

Evidence — Certificate in terms of s 212(4)(a) of Criminal Procedure Act 51 of 1977 — Admissibility of — Form J88 — Form J88 is intended to be completed H as unsworn certificate by doctor relating to condition of person alleged to have been involved in some way in crime — Form J88 cannot automatically be regarded as certificate contemplated by s 212(4) and (12) — To bring it within purview of those provisions, person signing certificate must also allege (i) that she or he is in service of State (or qualified in some other manner contemplated by s 212(4)) and (ii) I that she or he established facts recorded in certificate by means of examination or process requiring skill in one or more of disciplines contemplated by J

2002 (2) SACR p38

s 212(4) — Without doctor's oral evidence, non-complying certificate is not admissible at all. A

Evidence — Certificate in terms of s 212(4)(a) of Criminal Procedure Act 51 of 1977 — Admissibility of — Even where certificate or affidavit by doctor complies in every respect with s 212(4), if there is request from accused or her or his representative for doctor to be called, court must exercise its discretion under s 212(12) — When request is made by legal B representative, court should be inclined to call doctor, unless it is clear that request is frivolous — When request is made by unrepresented accused, court should enquire whether accused is prepared to disclose what it is that she or he wishes doctor to deal with in evidence — If doctor may be able to be of further assistance in matter, particularly if court is contemplating using what doctor has recorded in affidavit C or certificate for purpose of drawing inferences that have not been spelt out in affidavit or certificate by doctor, court should, in terms of s 212(12), either prepare written interrogatories for doctor, or have doctor called as witness.

Evidence — The accused — Right to remain silent — Fundamental constitutional right of accused to remain silent at all times, D including after close of prosecution case, would be subverted if its exercise were to result in any inference to effect that accused's silence amounted to admission either that she or he was guilty or that she or he had no answer to prosecution case — Correct approach is to recognise that accused's silence adds nothing to strength of prosecution case — What it does is no more than to leave prosecution E case undisturbed by any evidence that either challenges it or explains it away — Prosecution case must be evaluated on its own merits — If accused should eventually choose to break her or his silence, choice of time to do so may in some circumstances be relevant to assessment of weight to be given to her or his evidence. F

Trial — The accused — Accused not legally represented — Explanation of accused's rights — Precisely what advice and other help presiding officer must give to particular accused in particular case must inevitably be left largely to good sense of officer presiding at trial of any particular case — No rule of practice should be laid down requiring warning to be given to unrepresented accused — It is both unnecessary and confusing — If some such information G should be given to unrepresented accused, it is important that officer presiding at trial should not use obscure language — She or he should state in plain terms exactly what is meant — Unrepresented accused must be informed that she or he has right to testify and right to keep silent; that whether she or he testifies or not, she or he has right to call other witnesses to put forward any part of defence to which they H may be able to testify; and that she or he must choose whether to testify or to keep silent, and whether to call one or more witnesses — That is all that is necessary to ensure that accused understands her or his position adequately for purposes of fair trial. I

Headnote : Kopnota

Form J88, which is commonly used by district surgeons, medical officers and medical practitioners to record their findings after conducting a medical examination in a case of alleged assault or other crime, is intended to be completed as an unsworn certificate by that person relating to the condition of a person alleged to have been involved in some way in a crime. Form J88 J

2002 (2) SACR p39

cannot automatically be regarded as a certificate contemplated by s 212(4) and (12) of the A Criminal Procedure Act 51 of 1977. To bring it within the purview of those provisions, the person signing the certificate must also allege, in the certificate, (i) that she or he is in the service of the State (or qualified in some other manner contemplated by s 212(4)); and (ii) that she or he established the facts recorded in the certificate (or at least some of them, which should be specified) by means of an examination or process requiring skill in one or more of the B disciplines contemplated by s 212(4) (which should also be identified specifically). Without the doctor's oral evidence in the witness-box, a non-complying certificate is not admissible at all. This is not a mere formal rule of no great consequence. (Paragraphs [15], [18] and [21] at 44a - b, 44g - h and 45d - e.)

Even where a certificate or affidavit by a doctor complies in every C respect with s 212(4), if there is a request from the accused or her or his representative for the doctor to be called, the court must exercise its discretion under s 212(12). When the request is made by a legal representative, the court should be inclined to call the doctor, unless it is clear that the request is frivolous or that no good purpose could possibly be served by calling the doctor. On the other hand, when the request is made by an unrepresented accused, the court D should enquire whether the accused is prepared to disclose what it is that she or he wishes the doctor to deal with in evidence. If it appears that the doctor may be able to be of further assistance in the matter, and particularly if the court is contemplating using what the doctor has recorded in the affidavit or certificate for the purpose of drawing inferences that have not been spelt out in the affidavit or E certificate by the doctor, the court should, in terms of s 212(12), either prepare written interrogatories for the doctor, or have the doctor called as a witness. (Paragraph [22] at 45h - 46a.)

The fundamental constitutional right of an accused to remain silent at all times, including after the close of the prosecution case, would be subverted if its exercise were to result in any inference to the effect F that the accused's silence amounted to an admission either that she or he was guilty or that she or he had no answer to the prosecution case. The correct approach, both as a matter of law and of logic, is to recognise that the accused's silence adds nothing to the strength of the prosecution case. What it does is no more than to leave the prosecution case undisturbed by any evidence that either challenges it or explains it away. The prosecution case must be evaluated on its own G merits and without purporting to bolster it speciously by reference to the accused's exercise of her or his right to silence. If the accused should eventually choose to break her or his silence, the choice of time to do so may in some circumstances be relevant to the assessment of the weight to be given to her or his evidence. (Paragraph [45] at 51b - f.)

The matter of precisely what advice and other help the presiding H officer must give to a particular accused in a particular case must inevitably be left largely to the good sense of the officer presiding at the trial of any particular case. A Court reviewing the handling of a particular matter, or a Court of appeal, will generally confine itself to any shortcomings in the information given to the undefended accused in the circumstances of that particular matter. No rule of practice should be laid down requiring a warning to be given to I unrepresented accused. It is both unnecessary and confusing. If, however, some such information should be given to an unrepresented accused, it is important that the officer presiding at the trial should not use obscure language. She or he should state in plain terms exactly what is meant. It has been established and accepted that an unrepresented accused must be informed that she or he has the right to testify and the right to keep silent; J

2002 (2) SACR p40

that whether she or he testifies or not, she or he has the right to call other witnesses to put forward A any part of the defence to which they may be able to testify; and that she or he must choose whether to testify or to keep silent, and whether to call one or more witnesses. That is all that is necessary to ensure that the accused understands her or his position adequately for the purposes of a fair trial. To go further and to inform the accused, first, that no adverse inference may be drawn from her or his silence B alone, and then immediately to add that if she or he leaves the prosecution case unanswered, it could have adverse consequences is thoroughly confusing. Bringing confusion to the accused's mind obviously cannot promote a fair trial. (Paragraphs [52], [53], [58], [60], [66], [67] at 54g - h, 55d - f, 56g, 57d - f, 59e - f, 59h - 60a.)

Annotations:

Cases cited

Reported cases

National Director of Public Prosecutions v Phillips and Others 2001 (2) SACR 542 (W) (2002 (4) SA 60; 2002 (1) BCLR 41): considered and distinguished C

R v McMillan and Another 1958 (4) SA 461 (A): referred to

S v Agnew and Others 1996 (2) SACR 535 (C): referred to

S v Brown en...