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).
