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 1991and by s. 9 of Act 86 of 1996 and substituted by s. 6 of Act 34 of 1998.]

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(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 Astronomyo Geography;o Geologyo 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; oro 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 Stateo in the service of a provincial administration;o in the service of or attached to the South African Institute for Medical Research:

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o in the service of or attached to any university in the Republic; oro in the service of or attached to any body designated by the Minister of Justice for

purposes subsection 212(4) of the Criminal Procedure Act, 1977 by notice in the Government Gazette.

and this fact must be alleged explicitly in the affidavit (or certificate);

See Dlamini 2004 (1) SACR 179 (NC) at 180 b – d where the deponent stated that she was in the service of the Agricultural Research Council. She failed to state that she was in the service of any of the institutions envisaged in section 212(4)(a) and no information was available from which an inference could be drawn that the mentioned Council formed part of any of these institutions. The conviction was set aside on review.

Arising from Dlamini above, the Minister designated the Agricultural Research Council as a body for the purposes of section 212(4)(a). See Government Notice R. 889 of 30 July 2004 (Government Gazette 26603 of 30 July 2004).

The deponent must explicitly allege in the affidavit that (s) he has established such fact(s) by means of such an examination or process and must indicate which skill(s) was/were required;

In Paulsen 1995 (1) SACR 518 (C) the deponent failed to indicate that he analyzed the blood sample himself. The court ruled that the section does not allow the deponent to state what factual finding was made by another person – to do so would amount to double hearsay and that is not allowed by the section. The court stressed that in order to be admissible, section 212(4) statements should strictly comply with the requirements of the section. The conviction was set aside on Appeal. Compare also Van der Westhuizen 1989 (1) SA 468 (T) on 472D-E in this regard.

- It is submitted that the majority of the current DNA section 212(4) statements that is adduced in evidence, is inadmissible in view of the above requirement.

- The majority of such affidavits contains the following allegation: “During the course of my official duties on ….(date), I received the case file and thereafter interpreted the DNA results of the crime scene ……by a process requiring competency in Biology.” (My emphasis).

- Taking cognizance of the current practices in DNA laboratories, it is clear that the deponent of the 212(4) statement is not the only person who exercised certain functions regarding the specific DNA samples. A number of people are involved.

- Having regard to the statement of the deponent, it should be clear that he/she is only INTERPRETING the RESULTS of a DNA analysis (that is normally expressed in a statistical fashion) done by another laboratory assistant! In terms of Paulsen (supra), the deponent cannot make a statement concerning findings made by another person and such statement should be ruled inadmissible by the courts!

- It is further submitted that the deponent of the current DNA section 212(4) statements, is doing a statistical analysis of the results obtained by another person whilst no mention is made that the deponent is skilled in the analysis of statistics, one of the sciences mentioned in the section.

If the skill required to ascertain the particular fact(s) falls within the ambit of –o chemistry;o anatomy; oro pathology,

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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! (15 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.g. 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!

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- 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.g. 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.

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Section 150(2) (b) of the Criminal Procedure Act, 1977 provides in this regard as follows:

“Where any document may be received in evidence before any court upon its mere production, the prosecutor shall read out such document in court unless the accused is in possession of a copy of such document or dispenses with the reading out thereof.” (My emphasis)

A few points of importance should be noted here:

• Not all documents are admissible upon mere submission to court. Only public documents and documents, the submission of which is sanctioned by legislation, fall in this category.• If the affidavit/certificate complies with the above-mentioned requirements, the document (affidavit/certificate) may be produced as probative material to court by –

- the prosecutor reading out the contents of the document in court; unless - the accused (or his/her legal representative) is in possession of a copy of the document; or

- the accused (or his/her legal representative) dispenses with the reading out thereof.

(See section 150(2)(b) of the Criminal Procedure Act, 1977 above) It is submitted that the following procedure should be followed by prosecutors if they wish to adduce a section 212(4) statement:

• Inform the court that a section 212(4) statement is going to be adduced into evidence• Read the contents of the document into the record of proceedings (or follow the process

otherwise provided for by section 150(2)(b) and inform the court accordingly) • Make a submission to court that the document complies with all the requirements of section

212(4) [DO NOT MAKE THIS SUBMISSION IF THE DOCUMENT WAS NOT CHECKED FOR CORRECTNESS]

• Request the court to make a ruling on the admissibility of the document and do not proceed with the case until the court gave its ruling on the admissibility of the document! If a ruling was not made when it was requested, demand such ruling before the close of the State’s case!

Note in this regard the following:

Courts are obliged, in compliance with the Constitutional requirement of fairness and openness, to make a ruling on the admissibility of evidence (including documents submitted in terms of section 212(4)) at the stage when the issue of admissibility arises but at the latest before the close of the State case!

In Ramavhale 1996 (1) SACR 639 (A) at 651 the court held in this regard as follows:

“ If at the stage when this evidence was given the judge thought that it was going to be important….he should have raised the question of admissibility: or, if not then, then at a sufficiently early stage . It is the duty of a trial judge to keep inadmissible evidence out… The frequent practice of admitting evidence provisionally, …..often works most unfortunately. Instead of forcing practitioners to prove relevant facts by admissible evidence it may allow them to range around vaguely, which is not good for the administration of justice or anybody, ..”

With reference to hearsay evidence and the admissibility thereof the court in Ndhlovu 2002 (2) SACR 325 (SCA) ruled as follows:

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“ [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]….This 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]….when 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]…The 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.

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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). ..Also 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.”

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In Mkhize 1998 (2) SACR 478 (W) on 489 the court ruled as follows with reference to section 212(4):

“Affidavits of this nature are frequently used in courts throughout the Republic of South Africa. Their mere production affords the contents thereof the status of prima facie proof and, in the absence of other credible evidence, conclusive proof. See S v Veldthuizen 1982 (3) SA 413 (A) at 416G - H. It is not in every case that accused persons are in the fortunate position, as the accused in the present matter, to afford counsel and experts to impugn the contents thereof. In view of their legal effect there is a duty on those who issue such affidavits to ensure that same are properly and accurately drafted.” (My emphasis).

Note the following:

• A document drawn up in terms of section 212(4) becomes prima facie proof upon its submission to court. The admissibility of the statement is not dependent on consent from the magistrate and it is admissible evidential material irrespective of whether the accused or his legal representative admits or objects thereto provided it complies with the requirements of the section! In contrast with section 239 of the previous Criminal Procedure Act, 1956 (Act 55 of 1956) the admissibility of the certificate is not dependent on the approval of the defence. Compare in this regard Chizah 1960 (1) SA 435 (A); Veldhuizen 1982 (3) SA 413 (A) Abel 1990 (2) SACR 367 (C).

In Britz supra the court held in this regard as follows:

“ I should point out that before the coming into operation of the present Criminal Procedure Act of 1977, affidavits of the type under discussion would only have been admissible if there was no objection. That was under s 229[sic] of the previous Act. The present Act does not render such absence of objection as a condition for the handing up of an affidavit such as that under discussion. The weight of the affidavit is only affected if there is proof to the contrary”.(My inclusion). See also Tshabalala 1999(1) SACR 412 (C).

• The mere fact that the defence indicate that they do not accept the contents of the affidavit/certificate, does not affect the value of the prima facie proof at all. They must submit substantial admissible evidential material to rebut the contents of the document. If not, the prima facie proof will become conclusive. See Britz supra.

• As has been indicated supra, a court has no discretion whether or not to accept a section 212(4) statement if the statement complies with the formal requirements of the section! Even less does the court have the authority to force / request / instruct the prosecutor to present the evidence viva voce! The words of the section are clear: The document SHALL upon submission to court become prima facie proof.

• If the court for one or other reason find it necessary that the analyst should give viva voce evidence, the court is entitled to make such an order. (Compare section 212(12); 167 and 186 of the Criminal Procedure Act, 1977 and Sishi [2000] 3 All SA 56 (N)).

• A court may “in its discretion cause the person who made the affidavit or issued the certificate to be subpoenaed to give oral evidence in the proceedings in question, or may cause written interrogatories to be submitted to such person for reply, and such interrogatories and any reply thereto purporting to be a reply from such person, shall likewise be admissible in evidence at such proceedings”. (Section 212(12) of the Criminal Procedure Act, 1977)

BUT REMEMBER: If the court exercises its discretion in terms of this subsection, -

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• 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; noro 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 willrefer 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.)

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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.

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• That the doctor / nursing sister who drew the blood, did not shake the receptacle after the blood was drawn (to mix the sodium fluoride and the blood)

• and many other speculative arguments which may be raised.

The question which involuntary arises is whether it is incumbent on the State, during the presentation of the State case, to counter all or any of these and other speculative arguments that arose by specifically presenting evidence to negate such arguments?

This question is not new and the courts over many decades supplied an answer thereto.

In Mbambo 1965 (2) SA 845 (A) the accused threw stones at a person which apparently struck his head and caused the death of the person. On 858 the following remarks is made by the judge:

“This Court was invited to consider the possibility that the stone might have struck the deceased in the region of his back, causing him to slip and fall backwards so as to strike a stone or boulder when he fell to the ground. The medical evidence did not negative the head injury having been caused in that manner. However, this hypothesis might have merited consideration if the second accused had given evidence in support thereof. ….. The Court is normally not called upon to consider an explanation which does not reasonably arise on the evidence , and which is based purely on speculation. ”(My emphasis).

In Glegg 1973 (1) SA 34 (A) the accused testified that on the day in question, and after he played golf, he washed his arm and face with liquid soap in the restroom of the golf club and that he then perhaps did not properly dry his arm with a towel. He thereafter had a few beers in the restaurant of the Club. The doctor testified under cross-examination that impurities could have remained on the skin (even after having been cleansed with water) and this could have influenced the result of the analysis. During cross examination it was also put to the doctor that the liquid soap contained alcohol, a fact which the doctor could not deny.

On appeal it was argued that the blood sample of the accused might have been contaminated due, not only to the neglect of the doctor to clean the arm properly but also due to the possibility that the alcohol in the soap could have remained on the arm of the accused. The defence pertinently averred contamination but the Appeal court was not prepared to speculate whether the soap could have contained alcohol or that other possible sources of contamination could have been present. Rumpff C J ruled in this regard as follows:

“Dis duidelik dat daar nie die minste getuienis voor die landdros was dat daar enige alkohol in die seep van die golfklub was nie sodat die hele betoog namens die appellant daarop neerkom dat die Staat nie bewys het nie dat daar met die insteek van die spuit geen onsuiwerhede as sodanig in die bloed gekom het nie. By afwesigheid van enige erkenning of getuienis dat sodanige onsuiwerhede, wat kwaliteit en kwantiteit betref, die persentasie alkohol kon affekteer, is dit vir my moeilik om voor te stel wat die Staat nog meer in ‘n geval soos hierdie moes bewys het as wat wel bewys is.

Om te verwag dat die Staat in hierdie saak, bv., ‘n mikroskopiese en dermatologiese analiese van die vel moes gedoen het voordat die naald in die vel gesteek is en dan getuienis moes gelei het dat die mikroskopiese onsuiwerhede wat daar mog wees geen invloed op die

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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

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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!

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THE EFFECT OF ROSS 2013 (1) SACR 77 (WCC) AND VAN DER SANDT 1997 (2) SACR 116 (W) ON PROSECUTIONS IN TERMS OF SECTION 65(2) OF THE NATIONAL ROAD TRAFFIC ACT, 1996 (ACT 93 OF 1996)

CHAPTER ATHE CURRENT LEGAL POSITION IN THE WESTERN CAPE PROVINCE IN TERMS OF S V ROSS AND S V MOUTON

The recent decision of the Western Cape High Court, Cape Town in Ross 2013 (1) SACR 77 (WCC) delivered by Bozalek J on 25 September 2012, (attached for ease of reference) cast the proverbial cat amongst the pigeons.

In analyzing the decision of the court, it becomes clear (compare paragraphs [8] to [12] of the decision) that the additional information (concerning the apparatus that had been used, its calibration and accuracy) which was included in the relevant 212(4) blood analysis certificate, was, in the view of the court, inadmissibly included. The merits of the court’s decision that such information should be adduced in terms of section 212(10) of the Criminal Procedure Act, 1977 (Act 51 of 1977) is subject to criticism and will be addressed later in this paper.

The Ross-decision came to many as a big surprise as it is directly in conflict with an earlier Western Cape High Court decision (unfortunately not reported but the relevant portion of the case attached hereto for ease of reference) (S v Mouton, case no A 449/10, judgment delivered by Weinkove, AJ during 2010) of which Bozalek J (and the representative of the State) was obviously not aware. In the Mouton decision Weinkove AJ, held that the additional information (concerning the apparatus that had been used, its calibration and accuracy) that was, in casu, included in the section 212(4) certificate as was required in Van Der Sandt 1997 (2) SACR 116 (W) (discussed infra), is admissible evidence.

As lower courts under the jurisdiction of the Western Cape High Court (Cape Town) are bound by that court’s decisions, it leaves those courts in the peculiar (and unsatisfactory) position that they are now confronted with two directly conflicting decisions of the same Province which they are bound to follow!

This situation is obviously not supporting proper law enforcement in the Western Cape and one could only hope that the issue would receive proper attention and that legal certainty would be established sooner than later.

THE LEGAL REQUIREMENTS

In the past the “traditional” 212(4) blood analysis certificates only provided prima facie proof of the results obtained by the analysts. No proof was tendered in these documents as to how the results were obtained/established and no proof was provided concerning the accuracy/reliability of the devices used in the analytical process.

South African law is clear: If the results or readings of measuring instruments which are used in criminal proceedings to prove an offence are not directly placed in dispute or if they are admitted by the defence, the courts will normally accept such results or readings without detailed proof of how these devices function, that they are reliable and that their readings or results have been correctly determined. (See in this regard Israel 1966 (1) SA 610 (C) on 610 F and Wells 1990 (1) SA 816 (A)).

The use of machines or devices to prove issues in dispute has in the past led to a number of important decisions. The message is clear: If placed in dispute by the defence, the courts normally require

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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 3 rd 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

16

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:

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“In die onderhawige geval is daar geen getuienis aangebied ten opsigte van die korrektheid van die

toetsingsproses nie ... Veral in ʼn geval, soos hierdie, waar gebruik gemaak word van gesofistikeerde

en outomatiese apparaat ......., word daar na my mening vereis dat daar bewys van betroubaarheid

van die apparaat in die analise moet wees.

Die Staatsaak in die onderhawige geval gaan mank daaraan en derhalwe kan die bevinding ten

opsigte van die appellant se alkoholasemkonsentrasie nie bevestig word nie.”

In Price v Mutual & Federal Insurance Co. Ltd 2007 (1) SACR 501 (SECLD), Sangoni J, on 512 h

refers with approval to the above quoted passage in Van Der Sandt, supra and indicates that, apart

from requiring proof that breathalyzers are properly calibrated before they are used, proof needs to be

adduced that “…the specific machine used was in a good working order at the time…”. He further

states “ It is trite that, with regard to evidential breath testers, there are standards or specifications to

be met that are laid down or prescribed within the relevant jurisdictions. …. Such specification seeks

to eliminate the risk of a false result with regard to breath-alcohol value. With such specifications and

stringent requirements one in effect moves from the generality of a brand to the specificity of an

individual instrument, with a view to eliminating the risk of false or incorrect results.” (My

emphasis).

More recently in the case of Molahlane [2009] JOL 23937 (E), Plasket J, with reference to

prosecutions in terms of section 65(5) of the National Road Traffic Act 93 of 1996 held as follows in

paragraph [7] of the case: “It is required of the State when prosecuting a person on a charge of

contravening s 65(5)(a) of the Act to prove that the accused’s alcohol concentration had been tested

by the ‘prescribed equipment’ as envisaged by the Act. It is also incumbent on the State to prove the

reliability of the apparatus used and of its analysis. With reference to Bester and the subsequent case

of Price v Mutual and Federal Insurance Co Ltd, Hoctor summarises the position thus:

‘In terms of s 65(7), the concentration of alcohol in the accused’s breath is ascertained by using the

prescribed equipment. Such equipment, in terms of reg 332 of the Regulations, must comply with the

requirements of the standard specification SABS 1793 “Evidential breath testing”. For a conviction it

is essential for the State to lead evidence (i) explaining the operation of the equipment, (ii) proving

that the equipment is trustworthy in its operation, and (iii) establishing that the result obtained by the

equipment is correct, including proof that the equipment is properly calibrated to official

measurements.”

In casu the state failed to adduce such evidence and the conviction was set aside.

A careful study of the cases leaves one in no doubt about the obligation resting on the State in this

regard.

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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:

3.1 The gas-chromatograph is not an apparatus which can be operated reliably by a layman.

3.2 The courts cannot take judicial notice of the operation of the apparatus, because the functioning

thereof is at present not well known.

3.3 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

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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.

3.4 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:

1. That a duly qualified and authorized person in his official capacity had tested the

instruments and found them to be in proper working order;

2. That the yardstick he had used in checking its calibration was reliable (i.e. that it

conformed with the national measuring standard); and

3. That 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).

3.5 The court will not to the same extent accept that instruments which have not been calibrated,

also function reliably.

3.6 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.

3.7 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.

3.8 A gas-chromatograph as such cannot be calibrated. The “weights” which are used in the

process, can however be calibrated.

3.9 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.

3.10 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).)

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3.11 When the gas-chromatograph is calibrated and part of the calibration includes the use of a set

of weights to determine mass, a statement to the effect that the weights were calibrated

(despite the fact that this might be hearsay evidence) will be sufficient proof thereof. No

further proof that the weights are traceable to the official measuring standard is

required.

3.12 The operation of the gas-chromatograph is not of general knowledge to the courts.

Judicial notice cannot be taken of the instrument’s reliability. It would therefore not be

unreasonable to expect the chemical analyst, should he wish to avoid having to give viva

voce evidence, to set out fully in his statement in terms of section 212(4), his

qualifications, the process used to analyze the blood, the result of the analysis and the

reasons for its reliability. Such comprehensive explanation is an indispensable part of

the required evidence which must be adduced.

3.13 No support can be found in the argument that section 212(4) intended to do away with the

requirement that the expert who used the apparatus to ascertain a certain fact, should also give

evidence as to how the apparatus functions, that it is reliable for this purpose, what the result

of the test was and that it was reliable. To expect the expert to give this information in the

certificate again would not be outside the wording of section 212(4).

3.14 Before section 212(4) has any effect, the court must be convinced that the fact was

determined by an examination or process requiring skill in “chemistry” from the person who

determined the fact. The court cannot merely be convinced by a statement to this effect.

The process must be explained, so that the court may be placed in a position to be able

to determine whether skills in chemistry are in fact necessary to establish the fact. The

entire process does not require the application of knowledge regarding chemistry, but the

process as a whole must be of such a nature that it cannot be effectively carried out by a

layman. (See in this regard also the recent decision of the court in Sishi [2000] 3 All SA 56

(N)).

3.15 Is it necessary that the expert must, apart from the explanation on the operation of the

apparatus or process, the reliability thereof, etc, also set out in his statement that the

instrument was calibrated against assized apparatus to such an extent that it is traceable to the

national measuring standard? The answer is no. A court must be practical. If a court can

take judicial notice of hearsay evidence on assized scales, as was done in Mthimkulu supra,

the court can certainly take judicial notice of the fact that the probability exists that experts

who calibrate apparatus in their laboratories, will do so against the national measuring

standard. The mere allegation of such proper calibration, will be sufficient prima facie

evidence thereof. This inference is also in accordance with the wording of section 212(4)

which only requires that the process be set out.

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It is necessary to make a few comments here on the views of Bozalek J on the calibration of devices

as expressed it in Ross supra especially as this decision is directly in conflict with the decision of the

court in Van Der Sandt supra.

In paragraph [9] and [10] of the judgment Bozalek J explains the perceived difference between section

212(4) and section 212(10) of the Criminal Procedure Act, 1977 (Act 51 of 1977).

He indicates that section 212(4) stipulates that certain factual findings established inter alia by an

examination or process requiring any skill in a range of scientific fields, may be prima facie proved

by the production of a section 212(4) affidavit. In contrast to this section, he finds that if a fact is

sought to be established by a reading from a measuring instrument, the calibration and accuracy of

such instrument is dealt with by section 212(10) of the Criminal Procedure Act. In paragraph [11] he

finds in this regard as follows: “As is apparent from these provisions, ss10 does not allow prima facie

proof of the calibration and /or accuracy of any measuring instrument by way of certificate.

Notwithstanding this, the certificate proffered in the present matter purported to deal with the

accuracy and calibration of the measuring instruments used in the blood specimen test as follows:

“5 The concentration of ethanol (hereafter referred to as ‘alcohol’ in blood specimens

and other fluids of biological origin, is established by using gas chromatography. The blood specimen

(…) was analysed in duplicate using the following method(…):

5.1 The gas chromatographs are calibrated before the specimen are analysed. Calibration

is done by using certified alcohol standards of different conditions to obtain a

calibration curve. The certified standards are supplied by the National Metrology

Institute of South Africa (NMISA), which is the custodian of national measuring

standards in South Africa.” (My underlining and emphasis).

In paragraph [12] Bozalek J then makes the following ruling: “The ‘evidence’ in question quoted

above was inadmissible since it was not proved by means of an affidavit, viva voce evidence nor was

it admitted by agreement. In argument it was conceded on behalf of the state that this evidence should

have been proved by way of an affidavit….” (My underlining and emphasis).

Finally Bozalek also remarks in the last sentence of paragraph [20] of the decision as follows: “ No

explanation has been proffered as to why it (the State) believed that it was entitled to do so by means

of a certificate, notwithstanding the provisions of s 212(10) which require the use of an

affidavit.”(My inclusion and emphasis).

Without being overly critical, the decision of Bozalek J is, inter alia, respectfully subject to criticism

for the following reasons:

• Section 212(10) is currently not applicable in South Africa in view of the fact that the

Minister has not yet complied with the jurisdictional factor provided for in the section. The

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section provides as follows: “The Minister may in respect of any measuring instrument as

defined in section 1 of the Trade Metrology Act, 1973 (Act 77 of 1973), by notice in the

Gazette prescribe the conditions and requirements which shall be complied with before any

reading by such measuring instrument may be accepted in criminal proceedings as proof of

the fact which it purports to prove, and if the Minister has so prescribed such conditions

and requirements and upon proof that such conditions and requirements have been

complied with in respect of any particular measuring instrument, the measuring instrument

in question shall, for the purposes of proving the fact which it purports to prove, be

accepted at criminal proceedings as proving the fact recorded by it, unless the contrary is

proved.” (My emphasis).

Until the envisaged conditions and requirements are published by the Minister in Gazette,

no affidavit can be submitted to court in terms of section 212(10)!

(Ex abundanti cautela the following remarks must be made:

(i) Bozalek J is apparently of the view that calibration of devices must be proved

(in the absence of viva voce evidence or other evidential material) by an

affidavit (and not a certificate) in terms of section 212(10) of the Criminal

Procedure Act before such evidence will be admissible. It is submitted that

there is no substance in this ruling in view of the fact that section 212(10) does

not refer to calibration of devices as it is currently formulated. There is further

no guarantee that if the Minister does indeed formulate and publish conditions

and requirements concerning measuring instruments, that the calibration

process will form part of these conditions and requirements.

It is further submitted that there is currently no authority nor any substance in

the view (if such view exists) that evidence concerning calibration of devices,

in the absence of viva voce evidence or other admissible evidential material,

can only be proved via an affidavit!

(ii) Section 212(10) allows the Minister to publish conditions and

requirements “of any measuring instrument as defined in section 1 of the Trade

Metrology Act, 1973 (Act 77 of 1973)” There is apparently currently also

uncertainty whether a gas chromatograph is a measuring instrument as defined in

section 1 of the Metrology Act, 1973. Compare in this regard the description of

the operation of a gas chromatograph as set out in Dickenson 1982 (3) SA 84

(A) on 95A and the remarks made by the court in 91 and a similar description in

Greef 1995 (2) SACR 687 (A). Only time will tell whether, having regard to the

above mentioned definition in the Trade Metrology Act, conditions and

23

requirements will be published in the Gazette by the Minister concerning the gas

chromatograph.

• The concession made by the state advocate in paragraph [12] was, as is respectfully

submitted, ill-conceived and out of order. The advocate was apparently unaware of the

decision in Van Der Sandt supra (and obviously also unaware of the Mouton decision)

where approval has been given for the presentation of evidence concerning the calibration

etc. via the presentation of a section 212(4) certificate. The concession that the evidence

should have been proved by way of affidavit is nonsensical and wrong!

• Bozalek J apparently did not know of or consider the decision in Van Der Sandt or

Mouton supra in this regard. Had this been done, the final decision might have been quite

different.

At the beginning of this paper it was mentioned that courts do not blindly accept the results of

apparatus if they are used to prove a fact in dispute. The court will only accept such evidence if it is

properly proved that the applicable apparatus or instrument which was used is reliable for this

purpose, that it functioned properly and that it gave accurate results. This principle is clearly

confirmed in Van der Sandt supra.

What is of importance, is that this court held that such evidence can be adduced documentarily in

terms of a section 212(4) certificate and that it need not be proved by viva voca evidence or other

evidential material. This dictum was followed by the judge in the Mouton decision! The implication

thereof is that if the analyst comprehensively sets out in a section 212(4)-certificate, (or in an

annexure which is clearly identifiable as part of the certificate,) the process which was used during the

analysis, that such process and analysis is reliable and trustworthy and that a proper calibrated process

was followed, then such certificate provides prima facie proof of what is alleged until it is rebutted by

the defence. If the contents of the certificate are not rebutted by credible evidence, a court may at the

end of the case, find that such prima facie proof is conclusive proof of the fact. See also Sishi [2000]

All SA 56 (N) where the Kwa Zulu-Natal Provincial Division approved and required this evidence.

The value of such a comprehensive statement is that it will obviate the need to call the analyst to

adduce viva voce evidence!

With regard to 212(4) statements, the following must be remembered: A section 212(4)(a) certificate

is admissible evidential material irrespective of whether the accused or his legal representative

admits or objects thereto provided it complies with the requirements of the section! In contrast

with section 239 of the previous Criminal Procedure Act,1956 (Act 55 of 1956) the admissibility of

24

the certificate is not dependent on the defence’s approval. Compare in this regard Chizah 1960 (1)

SA 435 (A); Veldhuizen 1982 (3) SA 413 (A) Abel 1990 (2) SACR 367 (C) and Britz 1994 (2)

SACR 687 (W).

Prosecutors should remember that they cannot be compelled by the court or by the defence to call the

analyst to give viva voce evidence. If the court for one or other reason finds it necessary that the

analyst should give viva voce evidence, the court is entitled to make such an order. (Compare section

212(12); 167 and 186 of the Criminal Procedure Act, 1977 and Sishi [2000] 3 All SA 56 (N)).

CONCLUSION

Except for prosecutions in the Western Cape Province (where courts will obviously be in turmoil in

view of the conflicting decisions) prosecutions in the rest of South Africa, so is submitted, should

proceed as was the situation for the past 15 years (since the judgment in Van Der Sandt supra.)

This entails that the additional evidence (how the gas chromatograph functions, why it is trustworthy

and accurate and that it had been calibrated) required by Mthimkulu 1975 (4) SA 759 (A), should be

adduced by the prosecution when prosecuting offenders in terms of section 65(2) of the National Road

Traffic Act, 1996 or in any other criminal case where the results or reading of a device is to be

submitted as prove of issues in dispute. The vehicle to adduce this evidence in prosecutions for

contraventions of section 65(2) of the National Road Traffic Act, is a certificate in terms of

section 212(4) of the Criminal Procedure Act, 1977.

It stands to reason that prosecutors should carefully consider the section 212(4) certificate in view of

the fact that this certificate will only be admissible evidential material if it complies with the

requirements set out in the sub-section! Prosecutors should make sure that the 212(4) certificate

embodies the information (from the analyst) required by the court in Van Der Sandt, supra in detail!

Finally the following: It can do no harm if prosecutors, in addressing the courts before judgment and

if a section 212(4) certificate, containing the relevant information, was submitted by the state in those

proceedings, point out to the court that the additional evidence contained in the 212(4) certificate, is in

fact legally required and that it is admissible in terms of the Van Der Sandt and Mouton decisions.

Such address might enlighten magistrates and make them aware of these decisions. It will allow them

to mention this in their judgments and in an appeal later lodged against the decision of the magistrate,

High Court prosecutors and Judges will note the reason why the court a quo accepted the evidence

and ruled it to be admissible. This might assist the court on appeal to at least take note of the Van Der

Sandt and Mouton decisions and to then make a proper finding in this regard.

25

J F ScheepersJustice CollegeMay 2013

-ooOoo-

“IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO: A449/10

LOWER COURT CASE NO. 458/09

In the matter of:

JOHANNES DE VILLIERS MOUTON …............................................................................Appellant

and

THE STATE …...............................................................................................................Respondent

JUDGMENT

WEINKOVE, AJ

1. Appellant was charged with contravening Section 65(1 )(a) of Act 93 of 1996 in that on Saturday,

19 July 2008, he drove a motor vehicle, CVY 11989 while under the influence of alcohol. The

alternate charge was that he drove at a time when his blood alcohol level was in excess of

26

0.05g/100ml, i.e. being 0.20g/100ml. A second alternative charge was that he drove recklessly or

negligently.

2. Both in the court a quo and before us, appellant's counsel challenged the evidentiary value of the

affidavit in terms of section 212 of the Criminal Procedure Act No 51 of 1977 ("the Act") which had

been handed in to the trial court as evidence. The document recorded the procedure followed in

analysing the sample which had been taken of the appellant's blood and recorded the conclusion that

the concentration of the alcohol in the blood specimen was 0.20g/100ml. Relying on the full bench

decision in S v Van der Sandt1 counsel submitted that the affidavit lacked the necessary averments

concerning the reliability of the apparatus used and also that no evidence had been placed before the

court in regard to the calibration of the apparatus used to test the blood sample. In view of this

challenge, it is necessary to quote the relevant portions of the affidavit in full.

"In terms of subsections 212 (4) (a) and 212 (8) (a) of the Criminal Procedure Act, 1977 (Act 51 of 1977), I, Lunga Soboyisi. hereby certify as follows:

1. I have a National Diploma in Analytical Chemistry from the Cape Peninsula University of Technology and am in the employ of the State as an Assistant Forensic Analyst at the Forensic Chemistry Laboratory of the National Department of Health. Cape Town.

2. On 24 July 2008, the Laboratory received from the South African Police Service, Moorreesburg, a polystyrene container, sealed with seal number FA121177 and bearing the identification mark:

MOORREESBURG 98-07-2008

3. The polystyrene container was kept in an access- controlled area until analysis.

On 22 August 2008, in the performance of my official duties, I broke the intact seal and found a blood specimen with a label attached to it bearing the following identification mark:

FA121177

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4. I analysed the blood specimen by means of the method described in Paragraphs 5 and 6, which requires skill in chemistry, and obtained the following results:

4.1. The concentration of the alcohol in the blood specimen was 0.20 grams per 100 millilitres.4.2. The concentration of the sodium fluoride in the blood specimen was 1.4%.

5. The concentration of ethanol (hereinafter referred to as 'alcohol') in blood specimens and other fluids of biological origin, is established by using gas chromatography. This blood specimen (CTN-DD08690/2008) was analysed in duplicate using the following method:

5.1. The gas chromatographs are calibrated before the specimens are analysed. Calibration is done by using certified alcohol standards of different concentrations to obtain a calibration curve. The certified standards are supplied by the National Metrology Institute of South Africa (NMISA), which is the custodian of national measuring standards in South Africa.

5.2. The blood specimen and internal standard (tertiary butanol) are dispensed into a headspace vial by means of a diluter/dispenser that has been verified with respect to volume.

5.3. The headspace vial referred to in 5.2 is then equilibrated in a headspace autosampler and. after a set period of time, a sample of the headspace in the vial is injected onto a column in a gas chromatograph. The headspace sample containing the alcohol and internal standard flows with the mobile phase (nitrogen) through the column where, as a result of interactions between the compounds (alcohol and internal standard) and the column matehal, the compounds are separated. The two gas chromatographs are operated under different experimental conditions using columns of differing polahty.

5.4. At the end of the column a detector is situated that detects the compounds flowing with the mobile phase through the column. The signal generated by the detector is captured by chromatographic software and a chromatogram is illustrated. The chromatogram represents the detector's response to the alcohol and internal standard, which are observed as separate peaks, and provides the information necessary to calculate the alcohol concentration. Alcohol and internal standard are identified by their retention times (i.e. their time of residence on the column).

5.5 Reliability of the gas chromatographs is constantly checked by having recourse to the reproducibility of the retention times of the compounds on the column, base-line appearance and resolution between alcohol and internal standard peaks. In addition, a quality control specimen is chromatographed regularly to verify instrument performance. 5.6. This method has been validated.

6. The concentration of the sodium fluoride in blood specimens and other fluids of biological origin is established by using a fluoride electrode connected to an ion selective meter. This blood specimen (CTN-DD08690/2008) was analysed using the following method:

28

6.1. The ion selective meter is calibrated by using certified reference standards of different concentrations, which are obtained from the National Metrology Institute of South Afhca (NMISA).

6.2. The electrode is placed directly into the blood specimen and the concentration is displayed and recorded.

6.3. In addition, a quality control standard is analysed regularly during the analysis of a batch to check instrument performance.

6.4. This method has been validated."

3. In Van der Sandt Van Dijkhorst J embarked on a detailed examination of the case history at the

time, found that the subsection was not unconstitutional and in regard to the point made to the

appellant before us in respect of the calibration of the apparatus used, made the following finding:

"If therefore a gas chromatograph is calibrated and as part of such calibration, eg a set of weights is used to determine mass, a statement that they have been officially assized (albeit hearsay as to their correctness) would be adequate. No further proof is required to establish that that set of weights conforms with an official standard. '2

and further

"One question remains: Must the deponent to the affidavit or certificate in addition to an explanation of the process and instrument used and its efficacy set out that it has been calibrated against assized units of measure or draw the line right through to the national measuring standard? Neither, in my view. A court of law should be practical. If a court can take judicial notice of hearsay evidence about assized scales, as was done in S v Mthimkulu'3 (supra), there can be no serious objection to judicial notice of the fact that there is a high likelihood that scientists in designated government laboratories when calibrating their instruments will do so against correct standards. The mere allegation of proper calibration will in my view be adequate prima facie proof thereof. This conclusion is in conformity with the wording of s 212 (4) which requires no more than that the process be set out. 4

In my view the affidavit accepted by the court a quo complies in all respects with the requirements set

out by Van Dijkhorst J as well as the requirements set out by Du Plessis J in his concurring minority

29

judgment. These relate to the manner in which the qualifications of the deponent are to be set out and

the detail required in respect of the process requiring skill and chemistry which has been used, as

also the requirement that the deponent must state that the chromatographs were properly calibrated.

In argument before us, appellant's counsel expanded his attack on the acceptance of the affidavit by

submitting that information was required as to the standard used by the NMISA in regard to the

weights used for the calibration. It is clear from the certificate that no weights were required and that

the calibration was done by using certified alcohol standards of different concentrations to obtain a

calibration curve. In my view the averment to the effect that the certified standards are supplied by the

NMISA is sufficient, having regard to the portion of the Van der Sandt judgment quoted

above.

4. Appellant's counsel also asked us to find that there was a reasonable doubt that the appellant's

blood may have been contaminated prior to the test being completed. This submission was based on

the fact that according to the affidavit filed in terms of section 212 (4) the deponent broke the intact

seal in which the blood specimen of the appellant was contained on 22 August 2008 while it appeared

from document supplied as further particulars to the charge sheet that the "date of injection"

(apparently in respect of the sample) was 26 August 2008. Counsel made much of the fact that he

had informed the state that he intended to attack virtually every element of the state's case, and in

particular the section 212 affidavit and that he expected the state to call the deponent to the affidavit

so that he could be cross-examined. The state elected not to do so and relied on the certificate. We

have no knowledge as to the meaning of the "date of injection" or whether the appellant's blood could

have been contaminated by a delay in examining it, but a remedy was available to the appellant's

counsel. As pointed out in Van der Sandt,5 section 212 (12) of the Criminal Procedure Act permits the

court to call the deponent to the affidavit to testify viva voce and a court which refuses a fair request to

30

the accused to do so will put the outcome of the trial at risk. Appellant's counsel could therefore have

requested the magistrate to call the deponent to give evidence or he could of course have called an

expert himself. That such steps were available was also made clear in S v Tshabalala6 a judgment

given in this division. Where the requirements of section 212 (4) (a), as discussed in Van der Sandt's

case have been complied with, the fact established in terms of that section shall upon the mere

production of an appropriate affidavit be prima facie proof of such fact. In the present case thus the

finding was that the concentration of the appellant's concentration of alcohol in the blood specimen

was 0.20g/100ml. In S v Veldthuizen7 it was made clear that the words "prima facie evidence" cannot

be brushed aside or minimised and in S v Greeff8 also a judgment of the Supreme Court of Appeal,

Grosskopf JA said the following:

"Die vraag is nou of die appellant se skuld bo redelike twyfel bewys is. As die sertifikaat sy voile regskrag het ingevolge art 212(4)(a) van die Strafproseswet, moet die antwoord bevestigend wees. (Sien S v Veldthuizen 1982 (3) SA 413 (A) op 416g-h.) Die feit wat bewys moes word was dat die monster bloed nie minder nie as 0,80 gram per milliliter alcohol bevat het. Die sertifikaat voldoen aan al die formele vereistes om prima facie bewys te vorm dat die bloedkonsentrasie 0,27 gram per milliliter bloed was."

5. In my view therefore the magistrate was correct to treat the affidavit in terms of the section as one

which established prima facie that the appellant's blood alcohol content was 0.20g/100ml.” (My

emphasis).

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