The admission of evidence at the conclusion of a trial is tantamount to denying the accused the opportunity to challenge the evidence.
October 16, 2020
Danie Van Der Walt v The State  ZACC 19
Constitutional Court of South Africa
Mogoeng CJ, Froneman, Jafta, Khampepe, Majiedt, Madlanga, Mathopo, Mlantla, Theron, Tshiqi JJ and Victor AJ
July 21, 2020
Constitutional Law –– right to fair trial – right to challenge evidence – whether the admission of evidence at the close of trial was sufficiently serious as to undermine basic notions of fair trial and justice – Constitution of the Republic of South Africa, 1996, section 35 (3) (i).
The applicant, an obstetrician and gynaecologist, was convicted by the trial court where he was found to have acted negligently in the care of his patient and whose negligence caused her death. He was consequently convicted and sentenced to five years’ imprisonment. He unsuccessfully appealed to the High Court and the Supreme Court of Appeal. The applicant challenged the reliance of exhibits and medical textbooks by the trial court at the close of trial. The exhibits and the textbooks were not referred to in his testimony as evidence to be relied upon. He thus sought leave to appeal against conviction and sentence on the basis that the trial was handled in a manner that infringed his right as an accused to challenge evidence as protected under section 35(3) (i) of the Constitution of the Republic of South Africa. The applicant averred that a different approach ought to be used when assessing the standard of care on medical professionals. As such, the degree of negligence should be determined in accordance with the views of the medical profession. The applicant therefore contended that five years imprisonment was shockingly inappropriate and thus constituted an infringement of section 12(1) (a) of the Constitution of the Republic of South Africa.
- Whether the applicant’s right to fair trial was violated when the trial court denied him the opportunity to challenge the medical textbooks and exhibits that were used to arrive at the determination of his case.
- Whether the admission of evidence at the close of trial was sufficiently serious so as to undermine basic notions of fair trial and justice.
- What was the impact of the ‘no difference’ approach to a trial?
- Whether the standard of care placed on medical professionals when assessing professional negligence ought to be different from other skilled persons.
Relevant provisions of the law
Constitution of the Republic of South Africa section 35
Arrested, detained and accused persons
3. Every accused person has a right to a fair trial, which includes the right—
(i) to adduce and challenge evidence;
Freedom and security of the person – Section 12
(1) Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
- The determinations of the aforementioned issues are of public importance as they could serve as guidance to other courts, to the benefit of many accused persons who appear before them. It was thus in the interest of justice to grant leave to the instant appeal.
- A timeous ruling on the admissibility of evidence was crucial. It shed light on what evidence a court could take into consideration and could even give an indication as to how much weight should be accorded to it. That could enable an accused to make an informed decision on whether to close their case without adducing evidence or to adduce further evidence to controvert specific aspects of evidentiary material. Without a timeous ruling on all evidence that bore relevance to the verdict, an accused would be caught unawares at a stage when they could no longer do anything.
- An accused ought not to be ambushed by the late or unheralded admission of evidence. The trial court should be asked clearly and timeously to consider and rule on its admissibility. That could not be done for the first time at the end of the trial. The prosecution should before it closed its case clearly signal its intention to rely on specific evidence, and the trial judge should before the state closed its case rule on its admissibility, so that the accused could appreciate the full evidentiary ambit he faced.
- Though not all procedural irregularities were sufficiently serious as to constitute an infringement of the constitutional right to a fair trial, the prosecution could not argue that whatever cross-examination that could have been made by the applicant would have made no difference to the outcome. Such argument failed to address a crucial issue that was the admission and rejection of evidence at the right time could influence the decision whether to close their case without tendering any or further evidence. Nobody could ever guess with any degree of accuracy the impact that such evidence if tendered would have had on the outcome. The “no difference” argument was thus misconceived. Indeed the textbooks that were not presented as evidence but were relied upon when the trial court concluded the case meant that the applicant was denied an opportunity to challenge it and adduce controverting evidence.
- Whether the applicant would have been able to challenge the medical textbooks evidence successfully was not the question. The relevant question was whether the applicant had the opportunity to challenge the medical textbooks evidence. The applicant was plainly denied that opportunity. Likewise, not knowing that such evidence would be relied upon, he was denied the opportunity, if so minded, to adduce controverting evidence. The right to challenge evidence required that the accused should know what evidence was properly before the court. In the applicant’s case, the medical literature relied upon was never adduced at all. That went to the heart of a fair trial.
- The ‘no difference’ approach was generally an athema. Courts should not accept that the right to a fair hearing disappeared when it was unlikely to affect the outcome. Procedural objections were often raised by unmeritorious parties and judges could be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle, it was vital that the procedure and the merits should be kept strictly apart, since otherwise the merits could be prejudged unfairly.
- The right to a fair trial embraced a concept that was more than the substantive fairness as provided under section 35 subsection 3 of the Constitution of the Republic of South Africa, where the specific rights to a fair trial were listed out in paragraphs (a) to (o). It was broader and more context-based. It contained the notions of trial fairness, which were not just based on formalities.
- The applicant’s right to fair trial was violated by the pronouncement on the admissibility of exhibits at the stage of deciding his guilt. Put differently, the late admission of exhibits constitutes an irregularity of a nature that vitiated the trial in a constitutionally impermissible manner.
- The reliance on unproved medical textbooks thus infringed the applicant’s right to fair trial as enshrined under section 35(3) (i) of the Constitution of South Africa. Like the late admission of exhibits, these two acts constituted an irregularity of a nature that vitiated the fair trial in a constitutionally impermissible manner.
- It was faulty to argue that because doctors played an important societal role in providing access healthcare, such a role should play a weighty factor in sentencing them for negligently killing their patients. The jarring analogy of drivers killing people out of negligence were deserving of harsher sentences than doctors who killed whilst providing medical care could not stand.
- In the case of an expert, such as a surgeon, the standard was higher than that of the ordinary lay person, and the court ought to consider the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belonged. The gut-wrenching truth was that those that died in the hands of doctors who acted negligently were terminally denied that all important right, the right to life. It was a no-brainer which way the scale should have tilted.
- The applicant’s conviction ought not to be set aside on the merits. It was not set aside on the basis that the applicant’s guilt was not proved beyond a reasonable doubt. Rather, it was set aside on the basis that the trial court committed irregularities whose nature was such that the applicant’s right to fair trial was infringed. A conviction under those circumstances should not stand.
- Leave to appeal granted.
- The order of the trial court set aside and replaced with the following:
(a)The appeal against conviction upheld and, as a consequence, the conviction and sentence set aside.
(b)The matter to be referred to the Director of Public Prosecutions, to decide whether the accused should be re-arraigned.
(c)In the event that the accused was re-arraigned, the trial ought to be before a different trial court.
Relevance to the Kenyan situation
Right of the accused to challenge evidence
According to the decision in Danie Van Der Walt v The State  ZACC 19, South African courts did not pronounce an automatic infringement of an accused’s right to fair trial when a particular trial procedure was not observed. They assessed whether that particular breach amounted to a serious violation of basic notions of fair trial and justice. The South African courts have nonetheless expanded the parameters of fair trial beyond the itemized rights in the Constitution of the Republic of South Africa. They insisted that a fair trial gave the impression and perception that it was fair and just depending on the circumstances. In Kenya, the right for the accused to be informed in advance of the evidence the court intended to rely on, and to have reasonable access to that evidence was expressly provided for in Article 50 (2) (j) (k) Kenya’s Constitution 2010. Article 50 (2) (k) of the Constitution states as hereunder:
(2) Every accused person has the right to a fair trial, which includes the right—
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;
Kenyan courts acknowledged the importance of the accused having the opportunity to challenge evidence, but the absence of such opportunity did not necessarily amount to an automatic violation of the accused’s right to fair trial. Different circumstances surrounding a particular breach of fair trial had to be evaluated in order to determine if the proponent argument for the breach would stand. In the case of Domenic Kariuki v Republic  eKLR, the court stated that:
The right to a fair trial was not one of those rights that could be limited under Article 24 of the Kenyan Constitution, 2010. Fair trial was the main object of criminal procedure, and it was the duty of the court to ensure that such fairness was not hampered or threatened in any manner. That meant the duty was cast on the prosecution to disclose all the evidence, material and witnesses to the defence during the pre-trial stage and throughout the trial. Thus, under no circumstances could a person’s right to fair trial be jeopardized. It should however be noted that rights go hand in hand with responsibilities. Nowhere in the court record was it revealed that the appellant asked for provisions of the documents and was denied. It was unclear why the appellant did not raise the issue at the earliest instance. As such, the appeal is dismissed.
Professional medical negligence
The Kenyan courts establish medical negligence through the lenses of fellow medical practitioners when faced with similar circumstances. Put differently, if a medical practitioner of similar experience would have acted in the same manner as the accused, then no conviction would be proffered. It was stated in the case of J W (a minor) suing through her mother L W as her next Friend) v Medical Superintendent Malindi District Hospital & 2 others  eKLR, the court stated that:
The standard of care in medical negligence differedi from that of ordinary cases of negligence. If a professional man professed an art, he ought to be reasonably skilled in it. He should also be careful, but the standard of care, which the law required, was not insurance against accidental slips. It was such a degree of care as normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case, and, in applying the duty of care to the case of a surgeon, it was – necessary to have regard to the different kinds of circumstances that could present themselves for urgent attention. A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. In medical cases the fact that something hadgone wrong was not in itself any evidence of negligence.
It was further stated in the case of John Mutora Njuguna t/a Topkins Maternity & Clinic v Z W G  eKLR, that:
The test was the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not have possessed the highest expert skill; it was a well – established law that it was sufficient if he exercised the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence meant failure to act in accordance with the standard of reasonably competent medical man at that time. There could be one or more perfectly proper standards and if he conformed to one of the proper standards, then he was not negligent.
According to the case of Danie Van Der Walt v The State  ZACC 19, the South African courts unlike the Kenyan courts, had a different approach in the determination of standard of care placed on medical professionals when assessing professional medical negligence. They determined professional medical negligence by placing a higher standard of care on medical practitioners. As such, actions and omissions by medical professionals that led to the jeopardized health or loss of lives of their patients would lead to assumption of liability.