S v Van der Walt

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
• Judgment Date: 21 July 2020
• Court: Constitutional Court
• Hearing Date: 21 July 2020
• Counsel: S Budlender SC (with I Cloete) for the applicant. E Leonard SC for the state.
• Docket Number: CCT 180/19 [2020] ZACC 19

Madlanga J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring):

Introduction

[1] This is an application for leave to appeal against a judgment and order of the High Court of South Africa, Mpumalanga Division (functioning as the Gauteng Division, Pretoria), sitting at Mbombela on circuit. That court dismissed an appeal against a judgment and order on conviction and sentence handed down by the eMalahleni (Witbank) Regional Court.

Background

[2] In 2016 the applicant, Dr Danie van der Walt, an obstetrician and gynaecologist practising in the Witbank area, was convicted by the regional court of culpable homicide. The basis was that he acted negligently in the care of his patient, the late Ms Pamela Noni Daweti, after she had given birth, and that this negligence caused her death. He was sentenced to five years' imprisonment. He unsuccessfully appealed to the High Court against conviction and sentence. The Supreme Court of Appeal refused special leave to appeal.

In this court

[3] Before us the applicant seeks leave to appeal against conviction and sentence. Regarding conviction, he contends that the regional court handled the trial in a manner that infringed his fair-trial rights, in particular, his right as an accused to adduce and challenge evidence, protected under s 35(3)(i) of the Constitution. [1] On sentence, he submits

Madlanga J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

that the sentence is 'shockingly inappropriate' and thus constitutes an infringement of s 12(1)(a) of the Constitution. [2]

[4] The fair-trial challenge is based on three grounds. First, the regional magistrate decided the admissibility of various pieces of evidence for the first time in the judgment on conviction. This meant that, when the applicant elected not to testify, he did so without knowing the full ambit of the case against him.

[5] The applicant explains that the state's evidence comprised the evidence of three witnesses and a number of exhibits. He assumed that each exhibit (with the exception of those whose admissibility he contested) was admitted in evidence as it was handed up. To the applicant's surprise, the regional magistrate pronounced on the admissibility of all the exhibits only at the stage of handing down judgment on conviction. The regional magistrate admitted some exhibits, but not others. The crux of the applicant's complaint is that the non-admission of some of the exhibits meant that the evidence elicited through cross-examination on them was also rejected. And he came to know this only at the stage of conviction. He submits that this is at odds with this court's judgment in Molimi, [3] where it was held that '(t)he right of the accused at all important stages to know the ambit of the case [she or he] has to meet goes to the heart of a fair trial'. [4]

[6] Second, the applicant complains that, in addition to relying on the evidence of Dr Titus, an obstetrician and gynaecologist who was called as an expert witness by the state, the regional magistrate conducted her own research and — in reaching her decision — relied on medical textbooks not referred to in testimony. The applicant contends that, because these textbooks were not presented as evidence, he was denied an opportunity to challenge them and adduce controverting evidence. This constituted a contravention of his fair-trial right protected by s 35(3)(i) of the Constitution.

[7] Third, he submits that he was convicted of culpable homicide 'without there being any evidence as to an essential element of that offence: causation'.

[8] On sentence, the applicant submits that a doctor convicted of culpable homicide arising from professional negligence cannot be treated like, for example, a driver whose negligent driving resulted in someone's death. He contends that in society doctors play the special role of providing access to healthcare services, a right enshrined in s 27(1)(a) of

Madlanga J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

the Constitution. [5] Thus '(a) just approach to sentencing in these circumstances requires that a sentence of imprisonment be imposed only in the most serious cases of negligence', which degree must be determined in accordance with the views of the medical profession.

[9] On the first point, the state responds that once the applicant had contested the admissibility of certain exhibits, 'the Magistrate interrogated the admission of all other exhibits applying legal requirements for admission'. The regional magistrate's findings, continues the response, 'appear to have been correct'. The state maintains that the applicant was also aware that adverse consequences follow a failure to testify, in that 'the prima facie case of the state would be left to speak for itself'. In addition, the state submits that this issue was raised on appeal before the High Court. It also makes the point that the High Court did take into account the evidence that the applicant is claiming was effectively rejected as a result of the rejection of certain exhibits. Having done so, that court correctly came to the conclusion — even with that evidence — that the state had nevertheless proved its case beyond a reasonable doubt. Thus, the evidence elicited through cross-examination on the rejected exhibits would have made no difference to the outcome. The state further contends that Molimi is not comparable to this matter, as its facts are distinguishable.

[10] On the second point, the state submits that the regional magistrate's references to the literature that was not proven in testimony 'merely fit in with the factual evidence of the [expert] witness', Dr Titus, and that it is this evidence which was the basis of the finding of guilt. Further, even if the medical literature had not been considered, this would not have made a difference to the applicant's case. Given that the applicant elected not to testify or tender any evidence, the expert testimony of Dr Titus was not disputed and thus constituted prima facie evidence of the applicant's negligent conduct.

[11] Regarding the third and final point on conviction, the state submits that the evidence of Dr Titus was sufficient in establishing causation, and that the correct test was applied.

[12] In relation to sentence, the state submits that the trial court exercised its discretion properly and, therefore, there is no basis for upsetting the sentence.

[13] On 2 January 2020 this court issued directions calling upon the parties to file written submissions on whether:

(a)

The regional magistrate's pronouncement at the stage of the judgment on conviction, on the admissibility of the exhibits, infringed the applicant's right to a fair trial in terms of s 35(3) of the Constitution; and

Madlanga J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring)

(b)

on the assumption that the regional magistrate did rely on medical literature that was not introduced to the court in testimony, that reliance infringed the applicant's right to a fair trial, in particular the right to adduce and challenge evidence protected by s 35(3)(i) of the Constitution.

[14] We have elected to decide this matter without an oral hearing.

Jurisdiction and leave to appeal

[15] The pronouncement on admissibility at the stage of the judgment on conviction and reliance on medical literature not proved in testimony implicate the right to a fair trial, in particular, the right to adduce and challenge evidence. The right to a fair trial 'embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force'. [6] In this sense, it is broader and more context-based [7] than pre-constitutional notions of trial fairness, which were based on non-compliance with formalities. [8] However, this is not to say that all procedural irregularities are sufficiently serious as to constitute an infringement of the constitutional right to a fair trial. [9] The Constitution requires all courts hearing criminal trials or criminal appeals to give content to 'notions of basic fairness and justice'. [10] In doing so, they must

Madlanga J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ...