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THE Evidential Value OF A Statement MADE IN Terms OF Section 212
Law (BLaws)
Walter Sisulu University
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ACKNOWLEDGMENT :
NOTE COMPILED BY HANS SCHEEPERS FROM JUSTICE COLLEGE
THE PROBATIVE VALUE OF A STATEMENT MADE IN TERMS OF SECTION 212(4) OF
THE CRIMINAL PROCEDURE ACT, 1977 (ACT 51 OF 1977 )
In the recent past the probative value of statements made in terms of Section 212(4) of the Criminal Procedure Act, 1977 (Act No 51 of 1977) came under scrutiny in a number of High Courts country wide and although most of the courts are able to attach to it the proper legal weight that it deserves, some courts still do not recognize the full probative weight of such documents.
Judging from the number of calls received from magistrates and prosecutors concerning this issue recently, it is clear that lower court staff similarly experiences uncertainty about the probative value of such statements. This problem is amplified because many legal representatives, when confronted with this evidence in court, raise speculative arguments concerning the content of such statements in an attempt to nullify the legal effect thereof.
In this note an attempt will be made to summarize the salient features of this section and to give guidance on the probative value of such statements.
Section 212 provides as follows:
212 Proof of certain facts by affidavit or certificate
(4)(a) Whenever any fact established by any examination or process requiring any skill-
(i) in biology, chemistry, physics, astronomy, geography or geology; (ii) in mathematics, applied mathematics or mathematical statistics or in the analysis of statistics; (iii) in computer science or in any discipline of engineering; (iv) in anatomy or in human behavioural sciences; (v) in biochemistry, in metallurgy, in microscopy, in any branch of pathology or in toxicology; or (vi) in ballistics, in the identification of finger prints or palm-prints or in the examination of disputed documents,
is or may become relevant to the issue at criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the service of the State or of a provincial administration or is in the service of or is attached to the South African Institute for Medical Research or any university in the Republic or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and that he or she has established such fact by means of such an examination or process, shall, upon its mere production at such proceedings be prima facie proof of such fact : Provided that the person who may make such affidavit may, in any case in which skill is required in chemistry, anatomy or pathology, issue a certificate in lieu of such affidavit, in which event the provisions of this paragraph shall mutatis mutandis apply with reference to such certificate.
[Para. (a) amended by ss. 46 and 47 of Act 97 of 1986, by s. 40 of Act 122 of 1991 and by s. 9 of Act 86 of 1996 and substituted by s. 6 of Act 34 of 1998.]
(b) Any person who issues a certificate under paragraph (a) and who in such certificate wilfully states anything which is false, shall be guilty of an offence and liable on conviction to the punishment prescribed for the offence of perjury. (My emphasis).
REQUIREMENTS FOR ADMISSIBILITY
In terms of the above-mentioned statutory provisions, the following requirements must be met:
The fact(s) sought to be proved must be relevant to the issue(s) in the particular proceedings;
The fact(s) sought to be proved must have been established by an examination or process requiring any skill in any (or more) of the following fields:
o Biology; o Chemistry; o Physics; o Astronomy o Geography; o Geology o Mathematics; o Applied mathematics; o Mathematical statistics; o The analysis of statistics; o Computer science; o Any discipline of engineering; o Anatomy; o Human behavioural sciences; o Biochemistry; o Metallurgy; o Microscopy; o Any branch of pathology; o Toxicology; o Ballistics; o The identification of finger or palm-prints; or o The examination of disputed documents
See Dlamini 2004 (1) SACR 179 (NC) at 180 d – e where the deponent stated that she had conducted an examination requiring skills in genetics. Genetics is not one of the fields mentioned in subsections (i) to (iv) of section 212(4)(a) nor was there any information to justify an inference that it forms part of one of the sciences that are mentioned in those provisions. The conviction was set aside on review.
A document purporting to be an affidavit (or a certificate) must have been prepared and the original thereof must be submitted to court;
The person who made the affidavit (or certificate) must, at the stage when the examination was conducted or process followed, must have been - o in the service of the State o in the service of a provincial administration; o in the service of or attached to the South African Institute for Medical Research:
the person who may make the required affidavit may, in lieu of an affidavit, issue a certificate in which event the provisions of section 212(4) shall mutatis mutandis apply to such certificate.
[ NOTE: It is suggested that the above chronology is followed in assessing the admissibility of a document purporting to be formulated in terms of section 212(4) and that the court should rule on the question whether all the statutory requirements for production of the document have been met (thereby ruling the production of such probative material admissible) before such probative material in put on record.]
FACTUAL FINDINGS VERSUS OPINION EVIDENCE
Section 212(4) sanctions documentary proof of factual findings made by the deponent and not expressions of opinion!
In terms of the common law, opinion evidence is generally inadmissible. Recognizing this principle, the legislature, in an attempt to sanction documentary proof of opinion evidence, amended section 212(4) by Section 9 of the Criminal Procedure Amendment Act, 1996 (Act 86 of 1996) that provided as follows:
“ Section 212 of the principle Act is hereby amended by the addition to paragraph (a) of subsection (4) of the following further proviso: “Provided further that if such affidavit or certificate contains an opinion, such affidavit or certificate shall be prima facie proof of that opinion if- (i) the expertise of the declarant; and (ii) the grounds on which the opinion is based, can be determined from the affidavit or certificate .”
The above mentioned provision has however been repealed by Section 6 of Act 34 of 1998! ( years ago!)
The repeal of this proviso, leads to a number of important consequences:
- Whereas, in terms of section 9 of Act 86 of 1996 (quoted supra ) it was incumbent on the deponent to mention his/her (i) expertise (qualifications and/or experience) and (ii) the grounds on which the opinion is based, the current section 212(4) no longer requires such information! Such information is not only superfluous, but irrelevant and inadmissible in terms of the current formulation of the section! See Nkhumeleni 1986 (3) SA 102 (VSC) and Lange 1969 (3) SA 40 (N) where the High Courts, with reference to the pre-amended section 212(4), clearly indicates that opinion evidence cannot be adduced via a section 212(4) statement.
Evidence indicating that a factual finding was made by the deponent is allowed by section 212(4) but a FACT must have been established by the deponent and such FACTUAL finding must be mentioned in the statement!
- Many section 212(4) statements received from state laboratories (e. ballistic reports, DNA reports etc.) currently expresses the conclusions of the deponents. Such conclusions indicate that the deponent formed an opinion with regards his analysis. Such opinion evidence is not sanctioned by section 212(4) and prosecutors and magistrates should resist the temptation to respectively adduce and receive such statements. In cases where it is clear that factual findings were not made by the deponent, viva voce evidence should be presented to prove the point in dispute!
- Many J88 forms (which can legally be submitted to a court in terms of section 212(4), not only mentions the factual findings made by the medical practitioner (e. that lacerations or penetrating wounds were found on the body of the victim) but, in cases of murder or culpable homicide, also contains the conclusion (or opinion) what the cause of death was. Such conclusion (or opinion) is, as was indicated above, not admissible in terms of the section 212(4) statement!
If the cause of death is in dispute in a particular matter, viva voce evidence should preferably be adduced to prove such.
Section 212(4) requires by implication that the deponent should be “skilled” in one (or more) of the sciences mentioned in the section. A skilled person is not necessarily an expert.
Expertise is not required by the section! (No one will contest the fact that a nurse is skilled in medical science but definitely not skilled enough to do a heart operation. On the other hand it cannot be disputed that cardiologists are, in view of their studies and experience, experts in this particular field of medical science.)
- It often happens that questions are raised (either by magistrates or prosecutors or even by legal representatives) about the skills of the deponent. The question is often raised as to whether prosecutors should prove that a particular deponent is skilled in a certain science and then it is normally suggested that these deponents should indicate their “skills” (experience and /or qualifications) in the section 212(4) statement. - In terms of section 212(4), it is not required that proof should be adduced that the deponent is in fact skilled in one (or more) of the sciences mentioned in the section! The provisions of the section is clear: The deponent should only make the allegation that he/she “.... has established such fact by means of such an examination or process,... ”. - The section clearly only requires such allegation and if such is made (as well as the other allegations that are required by the section, as discussed supra ), then the document shall upon submission to court, be prima facie proof of the fact that had been established. - For purposes of clarity it should be remembered that if opinion evidence is to be presented to court, the common law demands proof that the witness presenting such evidence, is a competent witness and the witness should be able to motivate any opinion. Competency is proved by adducing proof of qualifications and/or experience! IN VIEW OF THE FACT THAT THE PRESENTATION OF OPINION EVIDENCE IS NOT SACTIONED BY SECTION 212(4), this common law requirement does not feature when section 212(4) statements are adduced in evidence! - If any mention is made about the qualifications and / or experience and even the motivation by the deponent in the section 212(4) statement, such information should be ruled inadmissible by a court – why?: Because it is not required nor allowed by the section! - Finally: If any suggestion is made by legal representatives that the deponent is not “skilled” in the science mentioned in the statement, evidence in rebuttal should be presented in that regard. Failure to do so, will not affect the prima facie proof provided by the section.
HOW SHOULD THE 212(4) STATEMENT BE SUBMITTED TO COURT?
It is submitted that there is only one legal way in which such documents can be submitted to court.
“ [18] Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trail, nor in argument, still less in the court’s judgment, nor on appeal. The prosecution, before closing its case, must clearly signal its intention to invoke the provisions of the Act, and, before the State closes its case, the trial judge must rule on admissibility, so that the accused can appreciate the full ambit he or she faces.”
Finally in Molimi 2008 (2) SACR 76 (CC) the court held as follows:
“[37]... case clearly exemplifies the prejudice created by not having a clear and timeous ruling on the admission of hearsay evidence that plays a significant part in convicting the accused and is only admitted at the end of the case.”
[41] A timeous and unambiguous ruling on the admissibility of evidence in criminal proceedings is,... a procedural safeguard.”
[42]... a ruling on admissibility is made at the end of the case, the accused will be left in a state of uncertainty as to the case he is expected to meet and may be placed in a precarious situation of having to choose whether to adduce or challenge evidence.”
]54].. right of an accused at all important stages to know the ambit of the case he or she has to meet goes to the heart of a fair trial.”
Although the above mentioned cases deal primarily with hearsay evidence, the same principles are applicable as far as documentary evidence received in terms of section 212(4) is concerned. (A section 212(4) statement is in any event hearsay evidence although sanctioned by section 212(4)!).
[ NOTE: It is suggested that the above chronology (the way in which the requirements of section 212(4) is set out above) is followed in assessing the admissibility of a document purporting to be formulated in terms of section 212(4) and that, before the actual fact(s) to be proved is placed on record, the court should rule on the question whether all the statutory requirements for production of the document have been met (thereby ruling the production of such probative material admissible).]
CONSEQUENCES IF REQUIREMENTS OF SECTION 212(4) ARE MET
If the affidavit/certificate complies with the above-mentioned requirements, and if the document (affidavit/certificate) is submitted to court, it shall constitute prima facie proof of the fact(s) thus established.
The word shall as contained in the section, indicate that the court is compelled to accept the document and that the fact(s) contained in that document becomes prima facie proof. The court has no choice or discretion regarding this type of evidence and no further requirements / qualifications is legally necessary.
Prima facie proof means that credible proof to the contrary by means of rebutting evidence is still possible. In the absence of such proof to the contrary, the prima facie proof will become conclusive proof.
The probative value of section 212(4) statements have been ruled upon by the courts on many occasions over periods of many years. It is impossible and indeed unnecessary to refer to all the cases where this issue was discussed in view of the fact that the majority of decisions apply a uniform approach. It is perhaps apt to refer to a few of these cases to indicate the views of the Courts.
In Chizah 1960 (1) SA 435 (A), with reference to other legislation that contained a section similar to section 212(4), the court held as follows:
" Luidens artikel 40(2) geld 'n behoorlik ondertekende sertifikaat in alle geregshowe as prima facie bewys van die besonderhede daarin vermeld. Dit beteken dat 'n regterlike beampte die besonderhede as juis moet aanvaar totdat hy oortuig is dat hy nie op hul kan staatmaak nie. Of so 'n oortuiging geregverdig is, moet afhang van die getuienis wat die inhoud van die sertifikaat weerlê of in twyfel trek ."
Diemont J A confirmed this when he remarked as follows in Veldhuizen 1982 (3) SA 413 (A) in
respect of section 212(4):
" The word `prima facie evidence' cannot be brushed aside or minimized. As used in this section they mean that the judicial officer will accept the evidence as prima facie proof of the issue and, in
absence of other credible evidence, that prima facie proof will become conclusive proof. " - (416G).
With regard to the rebuttal of prima facie proof Nestadt J held in Trust Bank of Africa Ltd v Senekal 1977 (2) SA 587 (T):
" Merely to cast suspicion on the correctness of the fact or facts prima facie established and mere
theories or hypothetical suggestions will not avail the defendant; the defendant's answer must be based on some substantial foundation of fact. " (593E.)
In Abel 1990 (2) SACR 367 (C) on 370 Scott J states: -
" In terms of these sections the certificate is prima facie proof of its contents, provided, of course, it
complies with the requirements of the sections. It follows that in the absence of other credible evidence, the prima facie proof will become conclusive proof ".
In Britz 1994 (2) SACR 687 (W) at 690 the court states as follows:
“The fact that an accused places the correctness of the certificate in issue, as did the appellant in the
Farenden case and the appellant in the present case, is not sufficient to affect the prima facie value of the certificate. The appellant has to adduce evidence to counter the prima facie value of the
certificate. That follows from decisions such as R v Chizah 1960 (1) SA 435 (A). . of note are the following remarks made by the Appellate Division in the case reported as Ex parte the Minister of
Justice in re R v Jacobson and Levy 1931 AD 466 where at 474 it was stated: 'Prima facie proof, in the absence of rebuttal therefor, means clear proof leaving no doubt.'
And further, at 478-9: 'In the absence of further evidence from the other side, prima facie proof becomes conclusive proof
and the party giving it discharges his onus.'”
Recently in Seyisi [2012] JOL 29518 (SCA), the court, with reference to viva voce evidence that was judged to be prima facie evidence, held as follows in par [12]: “Other than a bare denial the appellant
led no rebuttal evidence. Effectively the trial court was faced with the prima facie evidence of the expert.” In paragraph [13] the court continues to state: “As pointed out above a court is entitled to be
guided by the evidence of an expert. In the absence of a challenge to expert evidence that prima facie establishes the relevant facts a court is entitled to rely upon it to convict.”
it does not alter - o the procedure in terms of which the initial document (affidavit/certificate) is submitted to court (or, if applicable, formally admitted to by the defence); o the way in which the fact(s) contained in the initial document is proved; nor o the probative value ( prima facie proof unless properly rebutted by the defence) of the fact(s) contained in the initial document;
the witness thus subpoenaed, is the court’s witness (see section 186 / 212(12) of the Criminal Procedure Act, 1977) and both the prosecution and the defence may only cross-examine the deponent with consent of the court (see section 166 (2) of the Criminal Procedure Act, 1977);
the oral evidence or reply on written interrogatories will become additional probative material to be considered, assessed and weighed together with the initial probative material ( prima facie proof unless properly rebutted by the defence) contained in the section 212(4) document and all other probative material at the end of the case.
It often happens that legal representatives request the court to instruct the prosecutor to present viva voce evidence in lieu of the 212(4) statement. Their request is based on the argument that the accused has the right to subject witnesses to cross examination and if the State does not call the deponent it infringes upon the rights of the accused-so is alleged. As authority for this view, some will refer to section 35(3)(i) of the Constitution of the Republic of South Africa which reads as follows:
“Every accused person has a right to a fair trial, which includes the right- (i) to adduce and challenge evidence”.
- Section 35(3)(i) does not give an accused a right to cross examination. Challenging evidence is not synonymous to cross examination.
See in this regard Ndhlovu 2002 (2) SACR 325 (SCA) where the court (with reference to the submission of hearsay evidence) makes the following ruling in paragraph [24]:
“ In challenging the constitutionality of the hearsay provisions of the 1988 Act, counsel for the first appellant relied on the fair trial guarantee in the Bill of Rights, specifically the right of the accused 'to adduce and challenge evidence'. It has correctly been observed that the admission of hearsay evidence 'by definition denies an accused the right to cross-examine', since the declarant is not in court and cannot be cross-examined. I cannot accept, however, that 'use of hearsay evidence by the State violates the accused's right to challenge evidence by cross-examination', if it is meant that the inability to cross-examine the source of a statement in itself violates the right to 'challenge' evidence. The Bill of Rights does not guarantee an entitlement to subject all evidence to cross-examination. What it contains is the right (subject to limitation in terms of s 36) to 'challenge evidence'. Where that evidence is hearsay, the right entails that the accused is entitled to resist its admission and to scrutinise its probative value, including its reliability. The provisions enshrine these entitlements. But where the interests of justice, constitutionally measured, require that hearsay evidence be admitted, no constitutional right is infringed. Put differently, where the interests of justice require that the hearsay statement be admitted, the right to 'challenge evidence' does not encompass the right to cross-examine the original declarant.” (My emphasis).
(Section 166(1) of the Criminal Procedure Act, 51 of 1977 however confirms the right to cross examination by providing that “ An accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings ....”. (My emphasis). The accused clearly only acquires the right to cross examination if a witness was called by the State! The submission of documentary proof is not equal to the calling a witness.)
PRIMA FACIE PROOF VERSUS SPECULATION
Recently more and more legal representatives started reverting to speculation in an attempt to derail the prosecution and / or to counter the prima facie effect of a properly drawn-up section 212(4) statement.
Examples of such speculation (disclosed during the plea proceedings or during the trial) are as follows:
That the blood sample kit (the equipment used to draw the blood of the accused) was used after the expiries date that was printed on the container by the manufacturer.
That an alcohol containing swab or alcohol containing substance was used to clean the skin of the accused prior to the taking of the blood sample.
That the arm of the accused was not cleaned before blood was drawn from his/her arm.
That the pamphlet with instructions for use of the blood-kit (enclose in the blood-kit container) was not followed by the person who drew the blood of the accused.
In Britz 1994 (2) SACR 687 (W) at 689 reference is made to the above type of argument and the judge held in this regard as follows:
“ I turn to the first point. Points of this type have frequently been dealt with in several judgments of this Court. One of them, S v Kok 1986 (2) PH H379 reflects the general attitude of the Courts. In the judgment it was said: 'There are all sorts of things no doubt which the imaginative mind of counsel might be able to suggest as things which might have gone wrong at one or other stage of the process. And it would be quite unreasonable and it is quite unnecessary to expect of the State that when it presents its case it needs evidence to negative each and every one of those possible mistakes or irregularities.' Points of these sort are speculative and only of value if they are based on some evidence showing that the suggested absence of precautions might affect the alcohol content of the blood. In the present case it is contended that the omission to follow the directions on the packet to the letter is fatal. It is, however, important to note two things. The first is that the directions themselves indicate that they are to be observed to avoid hazard or trauma to the patient. In other words, care should be taken to ensure that infection is not caused by the application of the needle and the other aspects of the procedure. The other point is that some of the requirements are there by reason of an extravagance of caution. There is nothing on the record to show that the omission to follow every direction might affect the alcohol content of the specimen.” (My emphasis).
- That the blood was not kept in a cool container after it was drawn from the accused until such time when it was analyzed by the analyst in the laboratory.
• That the receptacle in which the blood specimen was placed for dispatch to the
analyst, did not contain more than 1% (per volume) of sodium fluoride.
- That someone spilled liquor over the accused and that the alcohol in the liquor that was on the skin of the accused was drawn into the blood sample when a sample was taken from the accused.
alkoholpersentasie kon gehad het nie, skyn my volkome onredelik te wees. Wanneer die Staat
sy saak op so ‘n manier moet bewys dat die judex facti oortuig moet wees dat die misdryf
gepleeg is, word dit nie van die judex verwag dat sy oortuiging gebaseer moet wees op ‘n
sekerheid wat daarin bestaan dat ‘n onbeperkte aantal geopperde moontlikhede wat
denkbeeldig is of op blote spekulasie berus, deur die staat uitgeskakel moet wees nie. Die
begrip ‘redelike twyfel’ kan nie presies omskryf word nie, maar dit kan wel gesê word dat
dit ‘n twyfel is wat bestaan weens waarskynlikhede of moontlikhede wat op grond van
algemene gangbare menslike kennis en ondervinding as redelik beskou kan word. Bewys
buite redelike twyfel word nie gelykgestel aan bewys sonder die allerminste twyfel nie,
omdat die las om bewys so hoog gestel te lewer, prakties die starfregsbedeling sou verydel.”
(My emphasis).
Because no evidence was presented by the defence concerning the reasonable possibility of
contamination, the decision of the court a quo was upheld.
In Francis 1976 (2) SA 70 (C) there was with tacit approval referred to Malan 1972 (1) PH
H (5) (T) where Boshoff J said: " The court is not called upon to speculate on the possible
sources of contamination upon which there is no evidence or the reasonable existence of
which cannot be inferred from the evidence. The possibility of contamination is not
reasonable without some supporting evidence more or less directly related to the possibility
itself ."(My emphasis).
In Freese 1988 (3) SA 774 (N) two bottles, one which had contained Savlon, (an alcohol-free
substance) and the other which had contained Hibertane (a substance containing alcohol)
were refilled. The possibility arose that the bottles were exchanged in the process of filling
the bottles with the two substances causing the two bottles not to contain the original
substance. The " savlon " substance was then used to cleanse the arm of the accused,
apparently influencing the result of the analysis.
The court again referred to Malan supra where Boshoff J said: " There may of course be
cases where the general circumstances of the case as revealed by the evidence and such other
matters such as the court is entitled to take notice of, may provide a sufficient foundation for
the view that the possibility is a reasonable one." (My emphasis).
In view of the fact inter alia that the evidence presented by the State disclosed a possibility
that a substance containing alcohol was used to cleanse the arm of the accused the court
upheld the appeal of the accused.
In Sauls 1981 (3) SA 172 (A) a prisoner was killed by other inmates. One of the accomplices
stood at the window of the prison cell and the allegation by the State was that he partook in
the murder in view of the fact that he was a watch-man who could warn the other
accomplices if necessary. Regarding the allegations made on behalf of this accused, the judge
commented as follows:
“ Mr Uijs contended further that even if his client stood at the window there was more than
one reasonable inference which could be drawn from his conduct. It was possible that he had
no knowledge whatsoever of the intention of the first and second appellants to kill the
deceased. He was a low ranking member of the gang and may not have been consulted in
advance but merely have been instructed to stand by the window. Or again he may have
stood at the window knowing that an assault was going to take place but not knowing that it
would lead to the deceased's death. There was evidence on record that punitive assaults
("strafsessies") sometimes took place when a member of the gang was choked into
unconsciousness.
No doubt many inferences can be drawn from the fact that appellant No 3 stood at the
window. It may be inferred that he was a sleepwalker or that he had got up out of bed to get a
breath of fresh air; all sorts of fanciful motives for his conduct may be suggested. The State
is, however, not obliged to indulge in conjecture and find an answer to every possible
inference which ingenuity may suggest any more than the Court is called on to seek
speculative explanations for conduct which on the face of it is incriminating. And when the
accused misleads the Court by lying, arguments based on improbable inferences are not
calculated to impress a trial Judge. A passage in a minority judgment given by MALAN JA in
R v Mlambo 1957 (4) SA 727 (A) at 738 is apposite. I may add that two paragraphs in this
passage were cited with approval by RUMPFF JA in S v Rama 1966 (2) SA 395 (A) at 401:
" In my opinion, there is no obligation upon the Crown to close every avenue of escape
which may be said to be open to an accused. It is sufficient for the Crown to produce
evidence by means of which such a high degree of probability is raised that the ordinary
reasonable man, after mature consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime charged. He must, in other
words, be morally certain of the guilt of the accused.
An accused's claim to the benefit of a doubt when it may be said to exist must not be derived
from speculation but must rest upon a reasonable and solid foundation created either by
positive evidence or gathered from reasonable inferences which are not in conflict with, or
outweighed by, the proved facts of the case.” (My emphasis)
In Reddy 1996 (2) SACR 1 (A) the judge, on page 9, with reference to Chesane 1975 (3) SA
172 (T) held as follows:
“The remarks of the learned Judge (McEwan J)[in Cheswane’s case] in the passage to which
we were referred must be seen in the context of the particular facts of the case which the
Court was concerned with. It is also noteworthy that the learned Judge also referred, with
approval, to the remarks of De Waal JP in R v Herbert 1929 TPD 630 at 636 and Rumpff JA
in S v Glegg 1973 (1) SA 34 (A) at 38H to the effect that in considering the effect of evidence,
one need not be concerned with 'remote and fantastic possibilities' and that it is not
incumbent upon the State to eliminate every conceivable possibility that may depend upon
'pure speculation'. The fact that a number of inferences can be drawn from a certain fact,
taken in isolation, does not mean that in every case the State, in order to discharge the onus
which rests upon it, is 'obliged to indulge in conjecture and find an answer to every possible
inference which ingenuity may suggest any more than the Court is called on to seek
speculative explanations for conduct which on the face of it is incriminating.' (Per Diemont
JA in S v Sauls and Others 1981 (3) SA 172 (A) at 182G-H.) (See also S v Rama 1966 (2) SA
395 (A) at 401A-C, approving the remarks of Malan JA in a minority judgment in R v
Mlambo 1957 (4) SA 727 (A) at 738A-B.)” (My inclusion and emphasis).
The court decisions above makes the position regarding speculation clear! Speculation will
not avail the accused. His answer to the States case must be based on some substantial
foundation of fact (evidence) AND if the State succeeded in adducing prima facie proof of
the accused’s guilt, credible evidence will have to be adduced by the accused to rebut that
prima facie proof. In the absence of such evidence, the prima facie proof will become
conclusive proof!
extensive and detailed proof of the operation and accuracy of such devices prior to convicting the accused.
In Mthimkulu 1975 (4) SA 759 (A) the court referred with approval to Wigmore on Evidence 3rd ed vol III at 189-190 where two preconditions are set before testimony may be based on scientific instruments: Professional evidence (1) to the trustworthiness of the process of the instrument in general; and (2) to the correctness of the particular instrument. (Compare in this regard similar sentiments expressed in the decision of Dickenson 1982 (3) SA 84 (A) on 95A).
That this evidential principle reverberates in the South African law is apparent from later cases which dealt with the operation of measuring instruments. Compare in this regard Van Der Sandt 1997 (2) SACR 116 (W), where a full bench of the Witwatersrand Local Division of the High Court per Van Dijkhorst J, on 131 held as follows:
“In prosecutions for contravention of s 122(2) of the Road Traffic Act 29 of 1989 [now section 65(2) of Act 93 of 1996] the State has to prove that the measuring instrument gives the correct measurement. This entails that its operation be explained, that it is proved to be trustworthy in its operation and that its results is (sic) proved to be correct. This includes proof that it is properly calibrated to official measurements.” (My underlining and inclusion).
Similar sentiments have been expressed in Bester 2004(2) SACR 59 (C), in Price v Mutual & Federal Insurance Co. Ltd 2007 (1) SACR 501 (SECLD and in the more recent decision in the case of Molahlane [2009] JOL 23937 (E). In view of the above it should be accepted that, in order to succeed in prosecutions for contravening section 65(2) of the National Road Traffic Act, 1996, the State not only has to prove the results of the blood analysis ( via a certificate in terms of section 212(4)), but proof must also be adduced as to how the gas-chromatograph operates, how reliable its readings are and that it has been calibrated. In Ross supra , the court ruled that such evidence cannot be adduced via a section 212(4) certificate.
THE WAY FORWARD IN THE WESTERN CAPE
Evidence concerning the operation of the gas-chromatograph, its trustworthiness and accuracy and evidence relating to the calibration of these devices, will primarily have to be sourced from the Forensic Chemistry Laboratory.
If the section 212(4) certificates issued by the Forensic Chemistry Laboratory Western Cape contains the additional information concerning the accuracy and calibration of the device that had been used
during the analysis, prosecutors should, so is submitted, proceed to adduce such documents. The prosecutors should however, before closing the state’s case and with reference to all the authority
discussed below in Chapter B infra , address the court and request the court to rule such evidence admissible**.** The court should then be requested to make a ruling in that regard (Compare the
discussion of a courts obligation in this regard in Ramavhale 1996 (1) SACR 639 (A), Ndhlovu 2002 (2) SACR 325 (SCA) and Molimi 2008 (2) SACR 76 (CC).)
Should the court for some or other reason rule that the statement contains inadmissible evidence and refuses to accept the statement in evidence, prosecutors should then consider the points discussed below.
It is submitted that this evidence can also be submitted to court in the following ways: 1. Prosecutors in the Western Cape can present such evidence viva voce. This obviously entails that adequate arrangements will have to be made to ensure the availability on the date of trial of the analyst who analyzed the relevant blood sample. If such evidence is not disputed or if it
is admitted by the defence, this viva voce evidence will not be necessary. (This will obviously put a tremendous strain on the laboratory staff and might affect their ability to cope with their workload.) 2. The evidence can be contained in a section 213 (of the Criminal Procedure Act) statement after proper regard is had to the rules of admissibility provided for in the section. If not in dispute, the presentation of evidence in this format will satisfy the legal requirements. If the defence however objects to the presentation of evidence in this format, the evidence shall not be admissible during the proceedings (compare section 213(2)(d)). 3. An accused may be willing to admit the operation, trustworthiness and calibration of the device in terms of section 220 of the Criminal Procedure Act. If so, then cadit quaestio! 4. The State may consider presenting the evidence in terms of section 3 of the Law of Evidence Amendment Act, 1988 (Act 45 of 1988). Although a court may rule the presentation of such evidence admissible, the evidential value thereof remains uncertain until a court finally makes a favorable decision in that regard. Should prosecutors consider this avenue, proper regard should be had to the section and to case law dealing with this issue. Prosecutors ought to remember however that if the court allows the statement in terms of section 3 of Act 45 of 1988, the statement no longer has the prima facie status it enjoyed in terms of section 212(4)! 5. The State might consider presenting a statement by the analyst containing the relevant evidence, in terms of section 222 of the Criminal Procedure Act. The provisions of this section should be carefully considered by prosecutors before submitting same.
In the long run and to avoid many arguments and uncertainties, it may be more prudent to present the required evidence viva voce.
CHAPTER B THE LEGAL POSITION IN THE REST OF SOUTH AFRICA IN TERMS OF S V VAN DER SANDT
An attempt was made under Chapter A and under the heading THE LEGAL REQUIREMENTS to provide a brief compendium of the general legal principles applicable in cases where the State makes use of machines / devices to prove issues in dispute during criminal court cases.
In that paragraph reference was made to a number of recent High Court decisions where the courts followed the rules laid down by the Appeal Court. For the sake of clarity and to ensure that prosecutors understand the issue, it is perhaps appropriate to quote a few remarks made by the judges in these cases.
In Van Der Sandt 1997 (2) SACR 116 (W), a full bench of the Witwatersrand Local Division of the High Court held as follows on 131 (per Van Dijkhorst J) :
“In prosecutions for contravention of s 122(2) of the Road Traffic Act 29 of 1989 [now section 65(2) of Act 93 of 1996] the State has to prove that the measuring instrument gives the correct measurement. This entails that its operation be explained, that it is proved to be trustworthy in its operation and that its results is (sic) proved to be correct. This includes proof that it is properly calibrated to official measurements.” (My underlining and inclusion).
In Bester 2004(2) SACR 59 (C), Erasmus J remarked in a case dealing with the contravention of
section 65(5), after extensive reference to the principles laid down in Van Der Sandt , supra, Strydom
1978 (4) SA 748 (E) on 751 F-H and Mthimkulu 1975 SA 759 (A) as follows:
In Chapter A above it was indicated that the Ross-decision clearly held that the evidence regarding
the general functioning of the gas-chromatograph, its trustworthiness /accuracy and the calibration of
the device, cannot be adduced by a section 212(4) certificate. If it is done in this fashion, that
evidence will be ruled inadmissible. This decision is, as was pointed out above, in conflict with the
earlier decision of the Western Cape High Court in Mouton.
WHAT IS THE LEGAL POSITION REGARDING THIS ISSUE IN THE REST OF SOUTH
AFRICA?
The answer to this problem, so is submitted, is found in the decision of Van Der Sandt 1997 (2) SACR 116 (W). This particular case was heard by a Full Court due to a number of predating conflicting decisions on other aspects of the law which are not relevant to the current discussion. Being a decision of a Full Court, and although many of the rulings may be viewed as obiter remarks, it is submitted that this decision carries strong persuasive force which at least deserves serious consideration by prosecutors and magistrates.
The decision in Van Der Sandt supra was approved and followed (by implication) in the subsequent cases of Gamede [2009] JOL 24178 (KZP), Price v Mutual & Federal Insurance Co. Ltd supra and in the very recent, as yet unreported decision of the court in Sithole and The State , (a decision of the High Court North Gauteng Pretoria, case number A 1051/11, delivered on 8 October 2012 by Bam AJ. (Compare paragraph 24 of the decision)).
It is appropriate to refer here to some of the remarks made by Van Dijkhorst J in Van Der Sandt supra. The judge clearly identifies the problem facing the state as follows on 131:
“This brings me to the real problem facing the State. A requirement that in every case viva voce evidence should be adduced of the operation, effectiveness and correctness of the gas chromatograph will put a severe strain on the staff of the State laboratories”.
The judge then proceeds to provide the solution, making very important remarks in133 and further.
Due to the wide dimensions of the judgment, an attempt will be made to tabulate the most important
findings of the court and then to give a discussion thereof. This summary should not be seen as a
substitute for the case itself. The case must still be comprehensively studied by prosecutors!
The following remarks were made in the course of the judgment:
3 The gas-chromatograph is not an apparatus which can be operated reliably by a layman.
3 The courts cannot take judicial notice of the operation of the apparatus, because the functioning
thereof is at present not well known.
3 The “ measuring standard” which is referred to in section 7(5) of Act 76 of 1973 (which
measuring standard “... for the purposes of any law or any other legal purpose, be traceable to a national measuring standard ...”), is not a reference to a measuring apparatus, but reference to an official measuring standard which is used by officials of metrology to test measuring apparatus which are generally used in the trade. These measuring standards are also called departmental, regional and inspection standards. These measuring standards are used in
compliance with the provisions of the Trade Metrology Act, 1973 (Act 77 of 1973). It is these latter standards which must be “ traceable” to the “ measuring standards” set out in section 7(5) of Act 76 of 1973. These measuring standards can be used to calibrate other measuring apparatus. 3 Evidence that instruments were calibrated (assized), was in the past accepted by our courts as prima facie proof of the correctness thereof. This included acceptance of three aspects:
- That a duly qualified and authorized person in his official capacity had tested the instruments and found them to be in proper working order;
- That the yardstick he had used in checking its calibration was reliable (i. that it conformed with the national measuring standard); and
3 the instrument had not since assizement become unreliable.
(The court in this regard referred to Mthimkulu 1975 (4) SA 759 (A) on 763A-D, 765 B-H). 3 The court will not to the same extent accept that instruments which have not been calibrated, also function reliably. 3 For the purposes of prosecutions in terms of section 65(2) of the Road Traffic Act, 1989 (Act 29 of 1989) the state will have to prove that the measuring instrument which was used gave a correct measurement. This means that the operation of such apparatus will have to be explained, that proof must be adduced that such apparatus is reliable for the purpose for which it was used and that the result obtained was reliable and correct. Proof must also be adduced that the apparatus was properly calibrated to official measurements. 3 This does not mean that a court will not be entitled to take judicial notice of and accept as adequate proof of the trustworthiness that the particular instrument has been properly calibrated. 3 A gas-chromatograph as such cannot be calibrated. The “ weights” which are used in the process, can however be calibrated. 3 Although section 212(4) of the Criminal Procedure Act attaches prima facie proof to the certificate wherein the result of the blood analysis is mentioned, it does not mean that the section necessarily does away with proof, that the applicable apparatus was reliable and functioning correctly. If no judicial notice can be taken of the applicable apparatus’s functioning and reliability, the expert who used the apparatus, should still be compelled to explain which apparatus has been used, explain the functioning of the apparatus and why it is reliable. 3 Proof of the reliability of the applicable apparatus, can be ignored in cases where there is a high degree of probability that it is reliable or in cases where it was tested. If during the analysis use is made of a measuring standard, proof that it was calibrated is normally also proof of its accuracy. (Compare Mthimkulu 1975 (4) SA 759 (A).)
THE Evidential Value OF A Statement MADE IN Terms OF Section 212
Course: Law (BLaws)
University: Walter Sisulu University
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