S v Kleynhans

• Jurisdiction: South Africa
• Judge: Satchwell J and Mbha J
• Judgment Date: 25 July 2005
• Docket Number: A1659/04
• Hearing Date: 25 July 2005
• Counsel: A M van Wyk for the appellant, instructed by the Legal Aid Board. Maat for the respondent.
• Court: Witwatersrand Local Division

Satchwell J:

Introduction

[1] This judgment deals, briefly, with the circumstances under which it is appropriate to lead the opinion evidence of expert witnesses in G criminal trials. It comments on the undesirability of using social workers and other professionals as a conduit for introducing second-hand information into the Court proceedings when the accused or appellant is himself or herself perfectly capable of giving such evidence in person. H

[2] Appellant was charged with theft in the amount of R198 010,21 from her employers, over the period May 2001 to April 2002. She pleaded guilty and was sentenced to serve a term of five years' imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977, against which sentence she now appeals. I

[3] The plea of guilty is based upon a statement in terms of s 112 of the Criminal Procedure Act, which was handed in to the Court as exh A. I consider the manner in which this document was prepared to be utterly contemptuous of the learned magistrate presiding at the trial and the very court proceedings themselves. First, it is handwritten when it should J

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have been typed. Secondly, the handwriting is careless, untidy and written without regard to the proprieties and A the serious nature of the document prepared. Thirdly, there are crossings-out, underlinings are done without a ruler and sometimes it is even difficult to read the writing. It appears to me that the attorney who prepared this has perhaps, over time, ceased to observe proper decorum and respect for the legal proceedings in which he is involved. There is nothing in the record to suggest that B there was insufficient time to properly prepare such an important document. Indeed, the very nature of the plea and the document upon which it is based is such that time should be and was taken before they were tendered. The consequences for an accused person are of great significance. C

[4] The crux of appellant's argument on appeal, as presented by Adv Van Wyk, is that the Court should carefully consider what, if any, purposes are achieved by the appellant's serving an actual period of nine months' imprisonment. Further, it is submitted that the Court should weigh up such doubtful purposes against the very real harm to be visited upon the minor children of the D appellant if they are separated from her for the effective period of imprisonment.

Tendering of opinion evidence

[5] The appellant did not give evidence. E

[6] Instead, a social worker, who is a probation officer in the employ of NICRO, was called to give evidence in her capacity as a so-called expert witness. She could not be called in any other capacity because she had no personal knowledge of any of the matters before the court. The information contained in her report, and in respect of which she attended at court, concerned the early life of the appellant, her F schooling, family circumstances, marital and extra-marital relationships, parenting of two sons, and the background to the criminal offences of which the appellant had been convicted.

[7] The social worker was not the best witness available in respect of those matters in which she did give evidence. The only G person who could have given this information to the court, on a first-hand basis, was the appellant or members of her family. This, to my mind, raises two questions. First, why was the social worker called at all? Secondly, was it appropriate that she was called? H

[8] The answer to the first question is obvious. On the facts pertaining to the appellant, the social worker was called in order that the appellant could thereby avoid entering the witness box and testifying on those matters in respect of which the social worker purported to give evidence. In so avoiding testifying, the appellant also avoided being cross-examined on certain of those matters mentioned I or referred to in the social worker's report.

[9] The answer to the second question is that it was not appropriate for the social worker to be called. Our law is very clear on the circumstances when, the purposes for which and the uses to which the evidence of an J

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expert may be put. See, in this regard, Holtzhauzen v Roodt 1997 (4) SA 766 SA (W), where the A ...