JUSTICE COLLEGE EVIDENCE PROOF OF FACTS ESTABLISHED BY AN EXAMINATION OR PROCESS REQUIRING CERTAIN SKILLS

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1 JUSTICE COLLEGE EVIDENCE PROOF OF FACTS ESTABLISHED BY AN EXAMINATION OR PROCESS REQUIRING CERTAIN SKILLS [SECTION 212(4) OF THE CRIMINAL PROCEDURE ACT, 1977 (ACT NO 51 OF 1977)] EVD 21 Justice Cllege, Private Bag X659, Pretria, 0001, Suth Africa, Tel (012) , Fax (012)

2 COMPILED BY : K D KRUGER DATE : SEPTEMBER 2002 UPDATED BY : K D KRUGER DATE : JULY 2010 EDITION : 2010 NO PART OF THIS NOTE MAY BE REPRODUCED OR TRANSMITTED IN ANY FORM OR BY ANY MEANS WITHOUT THE REQUIRED PERMISSION IN WRITING. 11 July 2008

3 PROOF OF FACTS ESTABLISHED BY AN EXAMINATION OR PROCESS REQUIRING CERTAIN SKILLS STATUTORY PROVISIONS Sectin 212(4) f the Criminal Prcedure Act, 1977 (Act N 51 f 1977) prvides as fllws: 212 Prf f certain facts by affidavit r certificate (4)(a) Whenever any fact established by any examinatin r prcess requiring any skill- (i) in bilgy, chemistry, physics, astrnmy, gegraphy r gelgy; (ii) in mathematics, applied mathematics r mathematical statistics r in the analysis f statistics; (iii) in cmputer science r in any discipline f engineering; (iv) in anatmy r in human behaviural sciences; (v) in bichemistry, in metallurgy, in micrscpy, in any branch f pathlgy r in txiclgy; r (vi) in ballistics, in the identificatin f finger prints r palm-prints r in the examinatin f disputed dcuments, is r may becme relevant t the issue at criminal prceedings, a dcument purprting t be an affidavit made by a persn wh in that affidavit alleges that he r she is in the service f the State r f a prvincial administratin r is in the service f r is attached t the Suth African Institute fr Medical Research r any university in the Republic r any ther bdy designated by the Minister fr the purpses f this subsectin by ntice in the Gazette, and that he r she has established such fact by means f such an examinatin r prcess, shall, upn its mere prductin at such prceedings be prima facie prf f such fact: Prvided that the persn wh may make such affidavit may, in any case in which skill is required in chemistry, anatmy r pathlgy, issue a certificate in lieu f such affidavit, in which event the prvisins f this paragraph shall mutatis mutandis apply with reference t such certificate. [Para. (a) amended by ss. 46 and 47 f Act 97 f 1986, by s. 40 f Act 122 f 1991 and by s. 9 f Act 86 f 1996 and substituted by s. 6 f Act 34 f 1998.] (b) Any persn wh issues a certificate under paragraph (a) and wh in such certificate wilfully states anything which is false, shall be guilty f an ffence and liable n cnvictin t the punishment prescribed fr the ffence f perjury. Sectin 150(2)(b) r 151(2)(b) f the Criminal Prcedure Act is applicable if any f the parties in the prceedings wish t prduce a dcument. The said sectin reads as fllws: (2)(b) Where any dcument may be received in evidence befre any curt upn its mere prductin, the prsecutr [s 150(2)(b)] / and the accused wishes t place such evidence befer the curt, he [s 151(2)9b)] shall read ut such dcument in curt unless the accused/prsecutr is in pssessin f a cpy f such dcument r dispenses with the reading ut theref. REQUIREMENTS FOR ADMISSIBILITY In terms f the abve-mentined statutry prvisins, the fllwing requirements must be met: The fact(s) sught t be prved must be relevant t the issue(s) in the particular prceedings; The fact(s) sught t be prved must have been established by an examinatin r prcess requiring any skill in any (r mre) f the fllwing fields/disciplines: 1

4 Bilgy; Chemistry; Physics; Astrnmy Gegraphy; Gelgy Mathematics; Applied mathematics; Mathematical statistics; The analysis f statistics; Cmputer science; Any discipline f engineering; Anatmy; Human behaviural sciences; Bichemistry; Metallurgy; Micrscpy; Any branch f pathlgy; Txiclgy; Ballistics; The identificatin f finger r palm-prints; r The examinatin f disputed dcuments See Dlamini 2004 (1) SACR 179 (NC) at 180 d e where the depnent stated that she had cnducted an examinatin requiring skills in genetics. Genetics is nt ne f the fields mentined in subsectins (i) t (vi) f sectin 212(4)(a) nr was there any infrmatin t justify an inference that it frms part f ne f the sciences that are mentined in thse prvisins. The cnvictin was set aside n review. A dcument purprting t be an affidavit must have been prepared and the riginal theref must be available. Hwever, if the skill required t ascertain the particular fact(s) falls within the ambit f chemistry; anatmy; r pathlgy, the persn wh may make the required affidavit may, in lieu f an affidavit, issue a certificate in which event the prvisins f sectin 212(4) shall mutatis mutandis apply t such certificate (see prvis in sectin 212(4)(a)); The persn wh made the affidavit must, at the stage when the examinatin was cnducted r prcess fllwed, have been - in the service f the State in the service f a prvincial administratin; in the service f r attached t the Suth African Institute fr Medical Research: in the service f r attached t any university in the Republic; r in the service f r attached t any bdy designated by the Minister f Justice fr purpses subsectin 212(4) f the Criminal Prcedure Act, 1977 by ntice in the Gvernment Gazette and this fact must be alleged explicitly in the affidavit; See Dlamini 2004 (1) SACR 179 (NC) at 180 b d where the depnent stated that she was in the service f the Agricultural Research Cuncil. She failed t state that she was in the service f any f the institutins envisaged in sectin 212(4)(a) and n infrmatin was available frm which an inference culd be drawn that the mentined cuncil frmed part f any f these institutins. The cnvictin was set aside n review. 2

5 Arising frm Dlamini abve, the Minister designated the Agricultural Research Cuncil as a bdy fr the purpses f sectin 212(4)(a) (see Gvernment Ntice R. 889 f 30 July 2004 (Gvernment Gazette f 30 July 2004)). The depnent must explicitly allege in the affidavit that (s)he has established such fact(s) by means f such an examinatin r prcess and must indicate which skill(s) was/were required.; [NOTE: It is suggested that the abve chrnlgy is fllwed in assessing the admissibility f a dcument purprting t be frmulated in terms f sectin 212(4) and that, befre the actual fact(s) t be prved is placed n recrd, the curt shuld rule n the questin whether all the statutry requirements fr prductin f the dcument have been met (thereby ruling the prductin f such prbative material admissible).] CONSEQUENCES IF REQUIREMENTS FOR ADMISSIBILITY ARE MET If the affidavit/certificate cmplies with the abve-mentined requirements, the dcument (affidavit/certificate) may be prduced as prbative material int curt by the prsecutr reading ut the cntents f the dcument in curt; unless the accused (r his/her legal representative) is in pssessin f a cpy f the dcument; r the accused (r his/her legal representative) dispenses with the reading ut theref. (See sectin 150(2)(b) f the Criminal Prcedure Act, 1977 abve) and upn mere prductin f that dcument, it shall cnstitute prima facie prf f the fact(s) thus established. The wrd shall indicates that the curt is cmpelled t accept the dcument. The curt has n chice and n further prerequisites/requirements/qualificatins are necessary. [NOTE: It is always safe practice t have the entire cntents f a dcument read int the recrd even if such reading is nt strictly necessary.] Prima facie prf means that admissible and credible prf t the cntrary by means f rebutting evidence is still pssible. In the absence f such prf t the cntrary, the prima facie prf will becme cnclusive prf. (Veldthuizen 1982 (3) SA 413 (A); Mkhize 1998 (2) SACR 478 (W)) The mere fact that the defence indicate that they d nt accept the cntents f the affidavit/certificate, des nt affect the value f the prima facie prf at all. They must submit substantial admissible evidential material t rebut the cntents f the dcument. If nt, the prima facie prf will becme cnclusive. (Britz 1994 (2) SACR 687 (W)) When prductin f the affidavit/certificate is cntemplated, experience has learned that the defence may indicate that they bject t the prductin theref because: all facts r the fact(s) cntained in the affidavit/certificate have been placed in issue and that the prsecutin must therefre prve all its allegatins r, at least, the fact(s) cntained in the affidavit/certificate; and/r the accused, in terms f sectin 35(3)(i) f the Cnstitutin f the Republic f Suth Africa, 1996, has a right t a fair trial, which includes the right - t adduce and challenge evidence and that they therefre have the right t insist n the authr f the affidavit/certificate t appear in curt t give ral evidence n the cntents f the dcument and t be crss-examined. It is submitted that such an bjectin shuld be verruled fr the fllwing reasns: 3

6 Facts in issue (facta prbanda) and facts relevant t the facts in issue (facta prbantia) can be prved by any frm f evidential material (i e ral evidence, dcumentary evidence, real evidence, admissins, judicial ntice and presumptins). The requirements fr admissibility and the methd f adducing such evidential material are determined by either the cmmn law r by a statutry prvisin. If, therefre, a statutry prvisin (like, in casu, sectin 212(4) f the Criminal Prcedure Act, 1977) exists and all the requirements fr admissibility and the methd f adducing that evidential material have been cmplied with, the affidavit/certificate shall, upn its mere prductin at such prceedings be prima facie prf f such fact. The curt will therefre have n chice but t admit such evidential material. Item 2(1) f Schedule 6 f the Cnstitutin f the Republic f Suth Africa, 1996 prvides as fllws: All law that was in frce when the new Cnstitutin tk effect, cntinues in frce, subject t (a) any amendment r repeal; and (b) cnsistency with the new Cnstitutin Sectin 212(4) f the Criminal Prcedure Act, 1977 was in frce when the Cnstitutin tk effect and had nt been amended r repealed since. Sectin 212(4) f the Criminal Prcedure Act, 1977 has nt been ruled uncnstitutinal by any curt cmpetent t rule n cnstitutinal matters (see sectin 172 f the Cnstitutin) and als des nt affect the accused s right t a fair trial in general r the right t adduce and challenge evidence in particular (sectin 35(3)(i) f the Cnstitutin). The accused can still adduce evidential material t rebut the prima facie prf established by the prductin f the affidavit/certificate meeting all the requirements set ut abve and (s)he can challenge the facts (evidence) cntained in the affidavit/certificate thrugh ther means than crssexaminatin. See Ndhlvu 2001 (1) SACR 85 (W) and Ndhlvu 2002 (2) SACR 325 (SCA) 225a 341b The phrase shall, upn its mere prductin at such prceedings be prima facie prf f such fact in sectin 212(4) is peremptry and cannt be interpreted as permitting the curt t exercise a discretin r wrse, t refuse t apply the prvisins as a result f ne s persnal preferences. Hwever, sectin 212(12) f the Criminal Prcedure Act, 1977 prvides that the curt may in its discretin cause the persn wh made the affidavit r issued the certificate t be subpenaed t give ral evidence in the prceedings in questin, r may cause written interrgatries t be submitted t such persn fr reply, and such interrgatries and any reply theret purprting t be a reply frm such persn, shall likewise be admissible in evidence at such prceedings. REMEMBER: If the curt exercises its discretin in terms f sectin 212(12), - it des nt alter - the prcedure in terms f which the initial dcument (affidavit/certificate) is submitted t curt (r, if applicable, frmally admitted t by the defence); the way in which the fact(s) cntained in the initial dcument is prved; nr the reality that the mere prductin f the affidavit/certificate cnstitutes prima facie prf f the fact(s) cntained therein unless prperly rebutted by the defence; the witness thus subpenaed, is the curt s witness (see sectin 186 f the Criminal Prcedure Act, 1977) and bth the prsecutin and the defence may crss-examine him/her; the ral evidence r reply n written interrgatries will becme additinal prbative material t be cnsidered, assessed and weighed tgether with the initial prbative material 4

7 (prima facie prf unless prperly rebutted by the defence) cntained in the sectin 212(4) dcument and all ther prbative material at the end f the case. EVIDENTIAL VALUE Admissin f evidential material (in casu dcumentary evidence ruled admissible after the requirements set ut in sectin 212(4) f the Criminal Prcedure Act have been cmplied with) and the weight t be attached t such evidential material shuld nt be cnfused. There are n degrees f admissibility. Evidential material is either admissible r inadmissible. Once ruled admissible, hwever, it may carry mre r less weight accrding t the facts and circumstances f each case. Evidential material must be weighed and evaluated in its ttality at the end f the trial. (P J Schwikkard and Others Principles f Evidence (Juta 1997) 18) The fact that the evidential material under discussin was admitted by mere prductin in terms f a statutry prvisin and that its veracity was nt tested under crss-examinatin (if sectin 212(12) was nt applied), may certainly have an influence n the evidential weight a curt may attach t it. The party deciding t adduce evidential material in terms f sectin 212(4) f the Criminal Prcedure Act, 1977 (usually the prsecutin), must realize the risk f ding s. If this methd is selected and the ppsing party adduces admissible rebutting ral evidence, the curt will mst prbably attach mre weight t the ral rebutting evidence than t the (untested) affidavit/certificate. -O- 5

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