Top court sets aside doctor's culpable homicide conviction, but he's not off the hook yet

21 July 2020 - 17:53 By ERNEST MABUZA
The Constitutional Court has set aside the conviction and sentence of a doctor who had been found guilty of culpable homicide after finding the trial court committed irregularities when finding him guilty.
The Constitutional Court has set aside the conviction and sentence of a doctor who had been found guilty of culpable homicide after finding the trial court committed irregularities when finding him guilty.
Image: 123RF/everydayplus

The Constitutional Court on Tuesday set aside the conviction and sentence of a Witbank obstetrician and gynaecologist who had been found guilty of culpable homicide and sentenced to five years in jail.

The court ruled that the trial court committed irregularities in finding Dr Danie van der Walt guilty, and referred the matter back to the director of public prosecutions in Mpumalanga to decide whether he should be rearraigned.

Van der Walt had taken his matter to the court on appeal.

The court said in the event the accused was rearraigned, the trial must sit before a different regional magistrate.

In 2016, Van der Walt, practising in the Witbank area, was convicted by the Witbank Regional Court of culpable homicide. The court ruled that he had acted negligently in the care of his patient, the late Pamela Noni Daweti, after she had given birth, and that this negligence caused her death.

Van der Walt unsuccessfully appealed to the high court sitting at Mbombela, and the Supreme Court of Appeal refused special leave to appeal.

Van der Walt then went to the Constitutional Court. He contended that the regional court handled the trial in a manner that infringed his fair trial rights, in particular his right as an accused to adduce and challenge evidence.

He argued the magistrate had decided the admissibility of various pieces of evidence for the first time in the judgment on conviction.

He said in addition to relying on an expert witness, the magistrate conducted her own research and, in reaching her decision, relied on medical textbooks not referred to in testimony.

In a unanimous judgment, Justice Mbuyiseli Madlanga said the pronouncement by the trial court on admissibility evidence at the stage of the judgment on conviction and reliance on medical literature not proved in testimony implicated the right to a fair trial.

Madlanga said Van der Walt was not given the opportunity to challenge the textbook evidence the magistrate relied upon. Madlanga said not knowing that such evidence would be relied upon, Van der Walt was denied the opportunity to adduce controverting evidence.

“The right to challenge evidence requires that the accused must know what evidence is properly before the court. In the applicant’s case, the medical literature relied upon was never adduced at all. This goes to the heart of a fair trial.”

Madlanga also held that the regional magistrate had been required to rule on admissibility before the state closed its case so that Van der Walt could appreciate the full evidentiary ambit he faced.

“I am thus persuaded by (Van der Walt's) argument that his fair trial right 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,” Madlanga said.

Madlanga said Van der Walt's conviction was not set aside on the merits.

“That is, it is not set aside on the basis that the applicant’s guilt was not proved beyond a reasonable doubt.

“It is set aside on the basis that the regional magistrate committed irregularities whose nature was such that the applicant’s fair trial right was infringed,” Madlanga said.


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