Medical negligence and criminal responsibility - when the court infringes on a medical practitioner's rights to a fair trial

Abstract

The application for leave to appeal in S v Van der Walt 2020 (2) SACR 371 (CC) was served before the Constitutional Court (CC) against the judgment of the Mpumalanga Division of the High Court. The facts were as follows: Dr D, an obstetrician and gynaecologist was convicted by the regional court of culpable homicide. The basis was that he acted negligently in the care of his patient, the late P, after she had given birth, and that this negligence caused her death. Dr D was sentenced to five years’ imprisonment. He unsuccessfully appealed to the High Court against both the conviction and sentence. The Supreme Court of Appeal (SCA) refused special leave to appeal, which resulted in the application in the CC. Regarding the conviction, Dr D contended that the way the regional court handled the trial infringed on his rights to a fair trial, more specifically, his constitutional right as an accused to adduce and challenge evidence as protected under s 35(3)(i) of the Constitution. Regarding the sentence, Dr D submitted that the sentence was ‘shockingly inappropriate’ and an infringement of s 12(1) (a) of the Constitution. The challenge regarding a ‘fair trial’ is based on three grounds. First, the regional magistrate decided on the admissibility of various pieces of evidence for the first time in the judgment on conviction. In essence, when the applicant elected not to testify, he did so without knowing the full ambit of the case. The state’s evidence comprised of the evidence of three witnesses and numerous exhibits. Dr D assumed that each exhibit – except for those whose admissibility he contested – was admitted as it was handed in. Surprisingly, the regional magistrate pronounced on the admissibility of all the exhibits, when he was handed down judgment on the conviction and admitted some exhibits, but not others. The crux of the matter is that the non-admission of some of the exhibits meant that the evidence elicited through their cross-examination was also rejected, a fact, which Dr D came to know only at the stage of conviction. The applicant complained that this was at odds with the law (S v Molimi 2008 (3) SA 608 (CC); Ndhlovu and Others v S [2002] 3 All SA 760 (SCA) at para 18).