ACKNOWLEDGMENT :
NOTE COMPILED BY HANS SCHEEPERS FROM JUSTICE COLLEGE
THE PROBATIVE VALUE OF A STATEMENT MADE IN TERMS OF SECTION 212(4) OF
THE CRIMINAL PROCEDURE ACT, 1977 (ACT 51 OF 1977)
In the recent past the probative value of statements made in terms of Section 212(4) of the Criminal
Procedure Act, 1977 (Act No 51 of 1977) came under scrutiny in a number of High Courts country
wide and although most of the courts are able to attach to it the proper legal weight that it deserves,
some courts still do not recognize the full probative weight of such documents.
Judging from the number of calls received from magistrates and prosecutors concerning this issue
recently, it is clear that lower court staff similarly experiences uncertainty about the probative value of
such statements. This problem is amplified because many legal representatives, when confronted with
this evidence in court, raise speculative arguments concerning the content of such statements in an
attempt to nullify the legal effect thereof.
In this note an attempt will be made to summarize the salient features of this section and to give
guidance on the probative value of such statements.
Section 212 provides as follows:
212
Proof of certain facts by affidavit or certificate
(4)(a)
Whenever any fact established by any examination or process requiring any skill(i) in biology, chemistry, physics, astronomy, geography or geology;
(ii) in mathematics, applied mathematics or mathematical statistics or in the
analysis of statistics;
(iii) in computer science or in any discipline of engineering;
(iv) in anatomy or in human behavioural sciences;
(v) in biochemistry, in metallurgy, in microscopy, in any branch of pathology or in
toxicology; or
(vi) in ballistics, in the identification of finger prints or palm-prints or in the
examination of disputed documents,
is or may become relevant to the issue at criminal proceedings, a document
purporting to be an affidavit made by a person who in that affidavit alleges that he
or she is in the service of the State or of a provincial administration or is in the
service of or is attached to the South African Institute for Medical Research or any
university in the Republic or any other body designated by the Minister for the
purposes of this subsection by notice in the Gazette, and that he or she has
established such fact by means of such an examination or process, shall, upon its
mere production at such proceedings be prima facie proof of such fact: Provided that
the person who may make such affidavit may, in any case in which skill is required
in chemistry, anatomy or pathology, issue a certificate in lieu of such affidavit, in
which event the provisions of this paragraph shall mutatis mutandis apply with
reference to such certificate.
[Para. (a) amended by ss. 46 and 47 of Act 97 of 1986, by s. 40 of Act 122 of 1991
and by s. 9 of Act 86 of 1996 and substituted by s. 6 of Act 34 of 1998.]
1
(b)
Any person who issues a certificate under paragraph (a) and who in such certificate
wilfully states anything which is false, shall be guilty of an offence and liable on
conviction to the punishment prescribed for the offence of perjury.(My emphasis).
REQUIREMENTS FOR ADMISSIBILITY
In terms of the above-mentioned statutory provisions, the following requirements must be met:

The fact(s) sought to be proved must be relevant to the issue(s) in the particular
proceedings;

The fact(s) sought to be proved must have been established by an examination or
process requiring any skill in any (or more) of the following fields:
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Biology;
Chemistry;
Physics;
Astronomy
Geography;
Geology
Mathematics;
Applied mathematics;
Mathematical statistics;
The analysis of statistics;
Computer science;
Any discipline of engineering;
Anatomy;
Human behavioural sciences;
Biochemistry;
Metallurgy;
Microscopy;
Any branch of pathology;
Toxicology;
Ballistics;
The identification of finger or palm-prints; or
The examination of disputed documents
See Dlamini 2004 (1) SACR 179 (NC) at 180 d – e where the deponent stated that she had
conducted an examination requiring skills in genetics. Genetics is not one of the fields
mentioned in subsections (i) to (iv) of section 212(4)(a) nor was there any information to
justify an inference that it forms part of one of the sciences that are mentioned in those
provisions. The conviction was set aside on review.

A document purporting to be an affidavit (or a certificate) must have been prepared
and the original thereof must be submitted to court;

The person who made the affidavit (or certificate) must, at the stage when the
examination was conducted or process followed, must have been o in the service of the State
o in the service of a provincial administration;
o in the service of or attached to the South African Institute for Medical Research:
o in the service of or attached to any university in the Republic; or
2
o
in the service of or attached to any body designated by the Minister of Justice for
purposes subsection 212(4) of the Criminal Procedure Act, 1977 by notice in the
Government Gazette.
and this fact must be alleged explicitly in the affidavit (or certificate);
See Dlamini 2004 (1) SACR 179 (NC) at 180 b – d where the deponent stated that she was in
the service of the Agricultural Research Council. She failed to state that she was in the service
of any of the institutions envisaged in section 212(4)(a) and no information was available
from which an inference could be drawn that the mentioned Council formed part of any of
these institutions. The conviction was set aside on review.
Arising from Dlamini above, the Minister designated the Agricultural Research Council as a
body for the purposes of section 212(4)(a). See Government Notice R. 889 of 30 July 2004
(Government Gazette 26603 of 30 July 2004).

The deponent must explicitly allege in the affidavit that (s)he has established such fact(s)
by means of such an examination or process and must indicate which skill(s) was/were
required;
In Paulsen 1995 (1) SACR 518 (C) the deponent failed to indicate that he analyzed the blood
sample himself. The court ruled that the section does not allow the deponent to state what
factual finding was made by another person – to do so would amount to double hearsay and
that is not allowed by the section. The court stressed that in order to be admissible, section
212(4) statements should strictly comply with the requirements of the section. The conviction
was set aside on Appeal. Compare also Van der Westhuizen 1989 (1) SA 468 (T) on 472D-E
in this regard.
-
-
-
-

It is submitted that the majority of the current DNA section 212(4) statements that is
adduced in evidence, is inadmissible in view of the above requirement.
The majority of such affidavits contains the following allegation: “During the course of
my official duties on ….(date), I received the case file and thereafter interpreted the
DNA results of the crime scene ……by a process requiring competency in Biology.”
(My emphasis).
Taking cognizance of the current practices in DNA laboratories, it is clear that the
deponent of the 212(4) statement is not the only person who exercised certain functions
regarding the specific DNA samples. A number of people are involved.
Having regard to the statement of the deponent, it should be clear that he/she is only
INTERPRETING the RESULTS of a DNA analysis (that is normally expressed in a
statistical fashion) done by another laboratory assistant! In terms of Paulsen (supra), the
deponent cannot make a statement concerning findings made by another person and such
statement should be ruled inadmissible by the courts!
It is further submitted that the deponent of the current DNA section 212(4) statements, is
doing a statistical analysis of the results obtained by another person whilst no mention is
made that the deponent is skilled in the analysis of statistics, one of the sciences
mentioned in the section.
If the skill required to ascertain the particular fact(s) falls within the ambit of –
o chemistry;
o anatomy; or
o pathology,
the person who may make the required affidavit may, in lieu of an affidavit, issue a certificate
in which event the provisions of section 212(4) shall mutatis mutandis apply to such
certificate.
3
[NOTE: It is suggested that the above chronology is followed in assessing the admissibility of a
document purporting to be formulated in terms of section 212(4) and that the court should rule on the
question whether all the statutory requirements for production of the document have been met
(thereby ruling the production of such probative material admissible) before such probative material
in put on record.]
FACTUAL FINDINGS VERSUS OPINION EVIDENCE
Section 212(4) sanctions documentary proof of factual findings made by the deponent and not
expressions of opinion!
In terms of the common law, opinion evidence is generally inadmissible. Recognizing this principle,
the legislature, in an attempt to sanction documentary proof of opinion evidence, amended section
212(4) by Section 9 of the Criminal Procedure Amendment Act, 1996 (Act 86 of 1996) that provided
as follows:
“ Section 212 of the principle Act is hereby amended by the addition to paragraph (a) of subsection
(4) of the following further proviso:
“Provided further that if such affidavit or certificate contains an opinion, such affidavit or
certificate shall be prima facie proof of that opinion if(i) the expertise of the declarant; and
(ii) the grounds on which the opinion is based,
can be determined from the affidavit or certificate.”
The above mentioned provision has however been repealed by Section 6 of Act 34 of 1998! (15
years ago!)
The repeal of this proviso, leads to a number of important consequences:
•
Whereas, in terms of section 9 of Act 86 of 1996 (quoted supra) it was incumbent on the
deponent to mention his/her (i) expertise (qualifications and/or experience) and (ii) the
grounds on which the opinion is based, the current section 212(4) no longer requires such
information! Such information is not only superfluous, but irrelevant and inadmissible in
terms of the current formulation of the section!
See Nkhumeleni 1986 (3) SA 102 (VSC) and Lange 1969 (3) SA 40 (N) where the High
Courts, with reference to the pre-amended section 212(4), clearly indicates that opinion
evidence cannot be adduced via a section 212(4) statement.
Evidence indicating that a factual finding was made by the deponent is allowed by section
212(4) but a FACT must have been established by the deponent and such FACTUAL finding
must be mentioned in the statement!
-
-
Many section 212(4) statements received from state laboratories (e.g. ballistic
reports, DNA reports etc.) currently expresses the conclusions of the deponents.
Such conclusions indicate that the deponent formed an opinion with regards his
analysis.
Such opinion evidence is not sanctioned by section 212(4) and prosecutors and
magistrates should resist the temptation to respectively adduce and receive such
statements. In cases where it is clear that factual findings were not made by the
deponent, viva voce evidence should be presented to prove the point in dispute!
Many J88 forms (which can legally be submitted to a court in terms of section
212(4), not only mentions the factual findings made by the medical practitioner
(e.g. that lacerations or penetrating wounds were found on the body of the victim)
but, in cases of murder or culpable homicide, also contains the conclusion (or
4
opinion) what the cause of death was. Such conclusion (or opinion) is, as was
indicated above, not admissible in terms of the section 212(4) statement!
If the cause of death is in dispute in a particular matter, viva voce evidence
should preferably be adduced to prove such.

Section 212(4) requires by implication that the deponent should be “skilled” in one (or more)
of the sciences mentioned in the section. A skilled person is not necessarily an expert.
Expertise is not required by the section! (No one will contest the fact that a nurse is skilled
in medical science but definitely not skilled enough to do a heart operation. On the other hand
it cannot be disputed that cardiologists are, in view of their studies and experience, experts in
this particular field of medical science.)
-
-
-
-
-
-
It often happens that questions are raised (either by magistrates or prosecutors or
even by legal representatives) about the skills of the deponent. The question is
often raised as to whether prosecutors should prove that a particular deponent is
skilled in a certain science and then it is normally suggested that these deponents
should indicate their “skills” (experience and /or qualifications) in the section
212(4) statement.
In terms of section 212(4), it is not required that proof should be adduced that
the deponent is in fact skilled in one (or more) of the sciences mentioned in the
section!
The provisions of the section is clear: The deponent should only make the
allegation that he/she “….has established such fact by means of such an
examination or process,…”.
The section clearly only requires such allegation and if such is made (as well as
the other allegations that are required by the section, as discussed supra), then
the document shall upon submission to court, be prima facie proof of the fact
that had been established.
For purposes of clarity it should be remembered that if opinion evidence is to be
presented to court, the common law demands proof that the witness presenting
such evidence, is a competent witness and the witness should be able to motivate
any opinion. Competency is proved by adducing proof of qualifications and/or
experience! IN VIEW OF THE FACT THAT THE PRESENTATION OF
OPINION EVIDENCE IS NOT SACTIONED BY SECTION 212(4), this
common law requirement does not feature when section 212(4) statements are
adduced in evidence!
If any mention is made about the qualifications and / or experience and even the
motivation by the deponent in the section 212(4) statement, such information
should be ruled inadmissible by a court – why?: Because it is not required nor
allowed by the section!
Finally: If any suggestion is made by legal representatives that the deponent is
not “skilled” in the science mentioned in the statement, evidence in rebuttal
should be presented in that regard. Failure to do so, will not affect the prima
facie proof provided by the section.
HOW SHOULD THE 212(4) STATEMENT BE SUBMITTED TO COURT?
It is submitted that there is only one legal way in which such documents can be submitted to court.
Section 150(2) (b) of the Criminal Procedure Act, 1977 provides in this regard as follows:
5
“Where any document may be received in evidence before any court upon its mere production, the
prosecutor shall read out such document in court unless the accused is in possession of a copy of such
document or dispenses with the reading out thereof.” (My emphasis)
A few points of importance should be noted here:
•
Not all documents are admissible upon mere submission to court. Only public
documents and documents, the submission of which is sanctioned by legislation, fall in this
category.
•
If the affidavit/certificate complies with the above-mentioned requirements, the
document (affidavit/certificate) may be produced as probative material to court by –
-
the prosecutor reading out the contents of the document in court; unless
the accused (or his/her legal representative) is in possession of a copy of the
document; or
the accused (or his/her legal representative) dispenses with the reading out
thereof.
(See section 150(2)(b) of the Criminal Procedure Act, 1977 above)
It is submitted that the following procedure should be followed by prosecutors if they wish to
adduce a section 212(4) statement:
•
•
•
•
Inform the court that a section 212(4) statement is going to be adduced into evidence
Read the contents of the document into the record of proceedings (or follow the process
otherwise provided for by section 150(2)(b) and inform the court accordingly)
Make a submission to court that the document complies with all the requirements of section
212(4) [DO NOT MAKE THIS SUBMISSION IF THE DOCUMENT WAS NOT
CHECKED FOR CORRECTNESS]
Request the court to make a ruling on the admissibility of the document and do not proceed
with the case until the court gave its ruling on the admissibility of the document! If a ruling
was not made when it was requested, demand such ruling before the close of the State’s case!
Note in this regard the following:
Courts are obliged, in compliance with the Constitutional requirement of fairness and openness, to
make a ruling on the admissibility of evidence (including documents submitted in terms of section
212(4)) at the stage when the issue of admissibility arises but at the latest before the close of the State
case!
In Ramavhale 1996 (1) SACR 639 (A) at 651 the court held in this regard as follows:
“ If at the stage when this evidence was given the judge thought that it was going to be
important….he should have raised the question of admissibility: or, if not then, then at a sufficiently
early stage . It is the duty of a trial judge to keep inadmissible evidence out… The frequent practice of
admitting evidence provisionally, …..often works most unfortunately. Instead of forcing practitioners
to prove relevant facts by admissible evidence it may allow them to range around vaguely, which is
not good for the administration of justice or anybody, ..”
With reference to hearsay evidence and the admissibility thereof the court in Ndhlovu 2002 (2) SACR
325 (SCA) ruled as follows:
“ [18] Third, an accused cannot be ambushed by the late or unheralded admission of hearsay
evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility.
This cannot be done for the first time at the end of the trail, nor in argument, still less in the court’s
judgment, nor on appeal. The prosecution, before closing its case, must clearly signal its intention to
6
invoke the provisions of the Act, and, before the State closes its case, the trial judge must rule on
admissibility, so that the accused can appreciate the full ambit he or she faces.”
Finally in Molimi 2008 (2) SACR 76 (CC) the court held as follows:
“[37]….This case clearly exemplifies the prejudice created by not having a clear and timeous ruling
on the admission of hearsay evidence that plays a significant part in convicting the accused and is
only admitted at the end of the case.”
[41] A timeous and unambiguous ruling on the admissibility of evidence in criminal proceedings
is,…a procedural safeguard.”
[42]….when a ruling on admissibility is made at the end of the case, the accused will be left in a state
of uncertainty as to the case he is expected to meet and may be placed in a precarious situation of
having to choose whether to adduce or challenge evidence.”
]54]…The right of an accused at all important stages to know the ambit of the case he or she has to
meet goes to the heart of a fair trial.”
Although the above mentioned cases deal primarily with hearsay evidence, the same principles are
applicable as far as documentary evidence received in terms of section 212(4) is concerned. (A
section 212(4) statement is in any event hearsay evidence although sanctioned by section 212(4)!).
[NOTE: It is suggested that the above chronology (the way in which the requirements of section
212(4) is set out above) is followed in assessing the admissibility of a document purporting to be
formulated in terms of section 212(4) and that, before the actual fact(s) to be proved is placed on
record, the court should rule on the question whether all the statutory requirements for production of
the document have been met (thereby ruling the production of such probative material admissible).]
CONSEQUENCES IF REQUIREMENTS OF SECTION 212(4) ARE MET
If the affidavit/certificate complies with the above-mentioned requirements, and if the document
(affidavit/certificate) is submitted to court, it shall constitute prima facie proof of the fact(s) thus
established.
The word shall as contained in the section, indicate that the court is compelled to accept the document
and that the fact(s) contained in that document becomes prima facie proof. The court has no choice
or discretion regarding this type of evidence and no further requirements / qualifications is
legally necessary.
Prima facie proof means that credible proof to the contrary by means of rebutting evidence is still
possible. In the absence of such proof to the contrary, the prima facie proof will become conclusive
proof.
The probative value of section 212(4) statements have been ruled upon by the courts on many
occasions over periods of many years. It is impossible and indeed unnecessary to refer to all the cases
where this issue was discussed in view of the fact that the majority of decisions apply a uniform
approach. It is perhaps apt to refer to a few of these cases to indicate the views of the Courts.
In Chizah 1960 (1) SA 435 (A), with reference to other legislation that contained a section similar to
section 212(4), the court held as follows:
7
"Luidens artikel 40(2) geld 'n behoorlik ondertekende sertifikaat in alle geregshowe as prima facie
bewys van die besonderhede daarin vermeld. Dit beteken dat 'n regterlike beampte die besonderhede
as juis moet aanvaar totdat hy oortuig is dat hy nie op hul kan staatmaak nie. Of so 'n oortuiging
geregverdig is, moet afhang van die getuienis wat die inhoud van die sertifikaat weerlê of in twyfel
trek."
Diemont J A confirmed this when he remarked as follows in Veldhuizen 1982 (3) SA 413 (A) in
respect of section 212(4):
"The word `prima facie evidence' cannot be brushed aside or minimized. As used in this section they
mean that the judicial officer will accept the evidence as prima facie proof of the issue and, in
absence of other credible evidence, that prima facie proof will become conclusive proof." - (416G).
With regard to the rebuttal of prima facie proof Nestadt J held in Trust Bank of Africa Ltd v Senekal
1977 (2) SA 587 (T):
"Merely to cast suspicion on the correctness of the fact or facts prima facie established and mere
theories or hypothetical suggestions will not avail the defendant; the defendant's answer must be
based on some substantial foundation of fact." (593E.)
In Abel 1990 (2) SACR 367 (C) on 370 Scott J states: "In terms of these sections the certificate is prima facie proof of its contents, provided, of course, it
complies with the requirements of the sections. It follows that in the absence of other credible
evidence, the prima facie proof will become conclusive proof".
In Britz 1994 (2) SACR 687 (W) at 690 the court states as follows:
“The fact that an accused places the correctness of the certificate in issue, as did the appellant in the
Farenden case and the appellant in the present case, is not sufficient to affect the prima facie value of
the certificate. The appellant has to adduce evidence to counter the prima facie value of the
certificate. That follows from decisions such as R v Chizah 1960 (1) SA 435 (A). ..Also of note are the
following remarks made by the Appellate Division in the case reported as Ex parte the Minister of
Justice in re R v Jacobson and Levy 1931 AD 466 where at 474 it was stated:
'Prima facie proof, in the absence of rebuttal therefor, means clear proof leaving no doubt.'
And further, at 478-9:
'In the absence of further evidence from the other side, prima facie proof becomes conclusive proof
and the party giving it discharges his onus.'”
Recently in Seyisi [2012] JOL 29518 (SCA), the court, with reference to viva voce evidence that was
judged to be prima facie evidence, held as follows in par [12]: “Other than a bare denial the appellant
led no rebuttal evidence. Effectively the trial court was faced with the prima facie evidence of the
expert.” In paragraph [13] the court continues to state: “As pointed out above a court is entitled to be
guided by the evidence of an expert. In the absence of a challenge to expert evidence that prima facie
establishes the relevant facts a court is entitled to rely upon it to convict.”
In Mkhize 1998 (2) SACR 478 (W) on 489 the court ruled as follows with reference to section
212(4):
8
“Affidavits of this nature are frequently used in courts throughout the Republic of South Africa. Their
mere production affords the contents thereof the status of prima facie proof and, in the absence of
other credible evidence, conclusive proof. See S v Veldthuizen 1982 (3) SA 413 (A) at 416G - H. It is
not in every case that accused persons are in the fortunate position, as the accused in the present
matter, to afford counsel and experts to impugn the contents thereof. In view of their legal effect there
is a duty on those who issue such affidavits to ensure that same are properly and accurately
drafted.” (My emphasis).
Note the following:
•
A document drawn up in terms of section 212(4) becomes prima facie proof upon its
submission to court. The admissibility of the statement is not dependent on consent from the
magistrate and it is admissible evidential material irrespective of whether the accused or his
legal representative admits or objects thereto provided it complies with the requirements of the
section! In contrast with section 239 of the previous Criminal Procedure Act, 1956 (Act 55 of 1956)
the admissibility of the certificate is not dependent on the approval of the defence. Compare in this
regard Chizah 1960 (1) SA 435 (A); Veldhuizen 1982 (3) SA 413 (A) Abel 1990 (2) SACR 367 (C).
In Britz supra the court held in this regard as follows:
“ I should point out that before the coming into operation of the present Criminal Procedure Act of
1977, affidavits of the type under discussion would only have been admissible if there was no
objection. That was under s 229[sic] of the previous Act. The present Act does not render such
absence of objection as a condition for the handing up of an affidavit such as that under discussion.
The weight of the affidavit is only affected if there is proof to the contrary”.(My inclusion).
See also Tshabalala 1999(1) SACR 412 (C).
•
The mere fact that the defence indicate that they do not accept the contents of the
affidavit/certificate, does not affect the value of the prima facie proof at all. They must
submit substantial admissible evidential material to rebut the contents of the document. If
not, the prima facie proof will become conclusive.
See Britz supra.
•
As has been indicated supra, a court has no discretion whether or not to accept a section
212(4) statement if the statement complies with the formal requirements of the section!
Even less does the court have the authority to force / request / instruct the
prosecutor to present the evidence viva voce! The words of the section are clear: The
document SHALL upon submission to court become prima facie proof.
•
If the court for one or other reason find it necessary that the analyst should give viva
voce evidence, the court is entitled to make such an order. (Compare section 212(12);
167 and 186 of the Criminal Procedure Act, 1977 and Sishi [2000] 3 All SA 56 (N)).
•
A court may “in its discretion cause the person who made the affidavit or issued the certificate
to be subpoenaed to give oral evidence in the proceedings in question, or may cause written
interrogatories to be submitted to such person for reply, and such interrogatories and any reply
thereto purporting to be a reply from such person, shall likewise be admissible in evidence at
such proceedings”. (Section 212(12) of the Criminal Procedure Act, 1977)
BUT REMEMBER: If the court exercises its discretion in terms of this subsection, •
it does not alter -
9
o
o
o
the procedure in terms of which the initial document (affidavit/certificate) is
submitted to court (or, if applicable, formally admitted to by the defence);
the way in which the fact(s) contained in the initial document is proved; nor
the probative value (prima facie proof unless properly rebutted by the defence) of
the fact(s) contained in the initial document;
•
the witness thus subpoenaed, is the court’s witness (see section 186 / 212(12) of the Criminal
Procedure Act, 1977) and both the prosecution and the defence may only cross-examine the deponent
with consent of the court (see section 166 (2) of the Criminal Procedure Act, 1977);
•
the oral evidence or reply on written interrogatories will become additional probative
material to be considered, assessed and weighed together with the initial probative material (prima
facie proof unless properly rebutted by the defence) contained in the section 212(4) document and all
other probative material at the end of the case.
•
It often happens that legal representatives request the court to instruct the prosecutor to present
viva voce evidence in lieu of the 212(4) statement. Their request is based on the argument that the
accused has the right to subject witnesses to cross examination and if the State does not call the
deponent it infringes upon the rights of the accused-so is alleged. As authority for this view, some will
refer to section 35(3)(i) of the Constitution of the Republic of South Africa which reads as follows:
“Every accused person has a right to a fair trial, which includes the right(i)
to adduce and challenge evidence”.
•
Section 35(3)(i) does not give an accused a right to cross examination. Challenging
evidence is not synonymous to cross examination.
See in this regard Ndhlovu 2002 (2) SACR 325 (SCA) where the court (with reference to the
submission of hearsay evidence) makes the following ruling in paragraph [24]:
“In challenging the constitutionality of the hearsay provisions of the 1988 Act, counsel for the first
appellant relied on the fair trial guarantee in the Bill of Rights, specifically the right of the accused 'to
adduce and challenge evidence'. It has correctly been observed that the admission of hearsay
evidence 'by definition denies an accused the right to cross-examine', since the declarant is not in
court and cannot be cross-examined. I cannot accept, however, that 'use of hearsay evidence by the
State violates the accused's right to challenge evidence by cross-examination', if it is meant that the
inability to cross-examine the source of a statement in itself violates the right to 'challenge' evidence.
The Bill of Rights does not guarantee an entitlement to subject all evidence to cross-examination.
What it contains is the right (subject to limitation in terms of s 36) to 'challenge evidence'. Where that
evidence is hearsay, the right entails that the accused is entitled to resist its admission and to
scrutinise its probative value, including its reliability. The provisions enshrine these entitlements. But
where the interests of justice, constitutionally measured, require that hearsay evidence be admitted,
no constitutional right is infringed. Put differently, where the interests of justice require that the
hearsay statement be admitted, the right to 'challenge evidence' does not encompass the right to
cross-examine the original declarant.”(My emphasis).
(Section 166(1) of the Criminal Procedure Act, 51 of 1977 however confirms the right to cross
examination by providing that “An accused may cross-examine any witness called on behalf of the
prosecution at criminal proceedings….”. (My emphasis). The accused clearly only acquires the right
to cross examination if a witness was called by the State! The submission of documentary proof is not
equal to the calling a witness.)
PRIMA FACIE PROOF VERSUS SPECULATION
10
Recently more and more legal representatives started reverting to speculation in an attempt to derail
the prosecution and / or to counter the prima facie effect of a properly drawn-up section 212(4)
statement.
Examples of such speculation (disclosed during the plea proceedings or during the trial) are as
follows:
•
That the blood sample kit (the equipment used to draw the blood of the accused) was
used after the expiries date that was printed on the container by the manufacturer.
•
That an alcohol containing swab or alcohol containing substance was used to clean
the skin of the accused prior to the taking of the blood sample.
•
arm.
That the arm of the accused was not cleaned before blood was drawn from his/her
•
That the pamphlet with instructions for use of the blood-kit (enclose in the blood-kit
container) was not followed by the person who drew the blood of the accused.
In Britz 1994 (2) SACR 687 (W) at 689 reference is made to the above type of argument and the
judge held in this regard as follows:
“ I turn to the first point. Points of this type have frequently been dealt with in several judgments of
this Court. One of them, S v Kok 1986 (2) PH H379 reflects the general attitude of the Courts. In the
judgment it was said: 'There are all sorts of things no doubt which the imaginative mind of counsel
might be able to suggest as things which might have gone wrong at one or other stage of the process.
And it would be quite unreasonable and it is quite unnecessary to expect of the State that when it
presents its case it needs evidence to negative each and every one of those possible mistakes or
irregularities.'
Points of these sort are speculative and only of value if they are based on some evidence showing that
the suggested absence of precautions might affect the alcohol content of the blood. In the present case
it is contended that the omission to follow the directions on the packet to the letter is fatal. It is,
however, important to note two things.
The first is that the directions themselves indicate that they are to be observed to avoid hazard or
trauma to the patient. In other words, care should be taken to ensure that infection is not caused by
the application of the needle and the other aspects of the procedure.
The other point is that some of the requirements are there by reason of an extravagance of caution.
There is nothing on the record to show that the omission to follow every direction might affect the
alcohol content of the specimen.” (My emphasis).
•
That the blood was not kept in a cool container after it was drawn from the accused
until such time when it was analyzed by the analyst in the laboratory.
•
That the receptacle in which the blood specimen was placed for dispatch to the
analyst, did not contain more than 1% (per volume) of sodium fluoride.
•
That someone spilled liquor over the accused and that the alcohol in the liquor that
was on the skin of the accused was drawn into the blood sample when a sample was taken from the
accused.
•
That the doctor / nursing sister who drew the blood, did not shake the receptacle
after the blood was drawn (to mix the sodium fluoride and the blood)
11
•
and many other speculative arguments which may be raised.
The question which involuntary arises is whether it is incumbent on the State, during
the presentation of the State case, to counter all or any of these and other speculative
arguments that arose by specifically presenting evidence to negate such arguments?
This question is not new and the courts over many decades supplied an answer thereto.
In Mbambo 1965 (2) SA 845 (A) the accused threw stones at a person which apparently
struck his head and caused the death of the person. On 858 the following remarks is made by
the judge:
“This Court was invited to consider the possibility that the stone might have struck the
deceased in the region of his back, causing him to slip and fall backwards so as to strike a
stone or boulder when he fell to the ground. The medical evidence did not negative the head
injury having been caused in that manner. However, this hypothesis might have merited
consideration if the second accused had given evidence in support thereof. ….. The Court is
normally not called upon to consider an explanation which does not reasonably arise on the
evidence, and which is based purely on speculation.”(My emphasis).
In Glegg 1973 (1) SA 34 (A) the accused testified that on the day in question, and after he
played golf, he washed his arm and face with liquid soap in the restroom of the golf club and
that he then perhaps did not properly dry his arm with a towel. He thereafter had a few beers
in the restaurant of the Club. The doctor testified under cross-examination that impurities
could have remained on the skin (even after having been cleansed with water) and this could
have influenced the result of the analysis. During cross examination it was also put to the
doctor that the liquid soap contained alcohol, a fact which the doctor could not deny.
On appeal it was argued that the blood sample of the accused might have been contaminated
due, not only to the neglect of the doctor to clean the arm properly but also due to the
possibility that the alcohol in the soap could have remained on the arm of the accused. The
defence pertinently averred contamination but the Appeal court was not prepared to speculate
whether the soap could have contained alcohol or that other possible sources of
contamination could have been present. Rumpff C J ruled in this regard as follows:
“Dis duidelik dat daar nie die minste getuienis voor die landdros was dat daar enige alkohol
in die seep van die golfklub was nie sodat die hele betoog namens die appellant daarop
neerkom dat die Staat nie bewys het nie dat daar met die insteek van die spuit geen
onsuiwerhede as sodanig in die bloed gekom het nie. By afwesigheid van enige erkenning of
getuienis dat sodanige onsuiwerhede, wat kwaliteit en kwantiteit betref, die persentasie
alkohol kon affekteer, is dit vir my moeilik om voor te stel wat die Staat nog meer in ‘n geval
soos hierdie moes bewys het as wat wel bewys is.
Om te verwag dat die Staat in hierdie saak, bv., ‘n mikroskopiese en dermatologiese analiese
van die vel moes gedoen het voordat die naald in die vel gesteek is en dan getuienis moes
gelei het dat die mikroskopiese onsuiwerhede wat daar mog wees geen invloed op die
alkoholpersentasie kon gehad het nie, skyn my volkome onredelik te wees. Wanneer die Staat
sy saak op so ‘n manier moet bewys dat die judex facti oortuig moet wees dat die misdryf
gepleeg is, word dit nie van die judex verwag dat sy oortuiging gebaseer moet wees op ‘n
12
sekerheid wat daarin bestaan dat ‘n onbeperkte aantal geopperde moontlikhede wat
denkbeeldig is of op blote spekulasie berus, deur die staat uitgeskakel moet wees nie. Die
begrip ‘redelike twyfel’ kan nie presies omskryf word nie, maar dit kan wel gesê word dat
dit ‘n twyfel is wat bestaan weens waarskynlikhede of moontlikhede wat op grond van
algemene gangbare menslike kennis en ondervinding as redelik beskou kan word. Bewys
buite redelike twyfel word nie gelykgestel aan bewys sonder die allerminste twyfel nie,
omdat die las om bewys so hoog gestel te lewer, prakties die starfregsbedeling sou verydel.”
(My emphasis).
Because no evidence was presented by the defence concerning the reasonable possibility of
contamination, the decision of the court a quo was upheld.
In Francis 1976 (2) SA 70 (C) there was with tacit approval referred to Malan 1972 (1) PH
H (5) (T) where Boshoff J said: "The court is not called upon to speculate on the possible
sources of contamination upon which there is no evidence or the reasonable existence of
which cannot be inferred from the evidence. The possibility of contamination is not
reasonable without some supporting evidence more or less directly related to the possibility
itself."(My emphasis).
In Freese 1988 (3) SA 774 (N) two bottles, one which had contained Savlon, (an alcohol-free
substance) and the other which had contained Hibertane (a substance containing alcohol)
were refilled. The possibility arose that the bottles were exchanged in the process of filling
the bottles with the two substances causing the two bottles not to contain the original
substance. The "savlon" substance was then used to cleanse the arm of the accused,
apparently influencing the result of the analysis.
The court again referred to Malan supra where Boshoff J said: "There may of course be
cases where the general circumstances of the case as revealed by the evidence and such other
matters such as the court is entitled to take notice of, may provide a sufficient foundation for
the view that the possibility is a reasonable one."(My emphasis).
In view of the fact inter alia that the evidence presented by the State disclosed a possibility
that a substance containing alcohol was used to cleanse the arm of the accused the court
upheld the appeal of the accused.
In Sauls 1981 (3) SA 172 (A) a prisoner was killed by other inmates. One of the accomplices
stood at the window of the prison cell and the allegation by the State was that he partook in
the murder in view of the fact that he was a watch-man who could warn the other
accomplices if necessary. Regarding the allegations made on behalf of this accused, the judge
commented as follows:
“ Mr Uijs contended further that even if his client stood at the window there was more than
one reasonable inference which could be drawn from his conduct. It was possible that he had
no knowledge whatsoever of the intention of the first and second appellants to kill the
deceased. He was a low ranking member of the gang and may not have been consulted in
advance but merely have been instructed to stand by the window. Or again he may have
stood at the window knowing that an assault was going to take place but not knowing that it
would lead to the deceased's death. There was evidence on record that punitive assaults
("strafsessies") sometimes took place when a member of the gang was choked into
unconsciousness.
13
No doubt many inferences can be drawn from the fact that appellant No 3 stood at the
window. It may be inferred that he was a sleepwalker or that he had got up out of bed to get a
breath of fresh air; all sorts of fanciful motives for his conduct may be suggested. The State
is, however, not obliged to indulge in conjecture and find an answer to every possible
inference which ingenuity may suggest any more than the Court is called on to seek
speculative explanations for conduct which on the face of it is incriminating. And when the
accused misleads the Court by lying, arguments based on improbable inferences are not
calculated to impress a trial Judge. A passage in a minority judgment given by MALAN JA in
R v Mlambo 1957 (4) SA 727 (A) at 738 is apposite. I may add that two paragraphs in this
passage were cited with approval by RUMPFF JA in S v Rama 1966 (2) SA 395 (A) at 401:
"In my opinion, there is no obligation upon the Crown to close every avenue of escape
which may be said to be open to an accused. It is sufficient for the Crown to produce
evidence by means of which such a high degree of probability is raised that the ordinary
reasonable man, after mature consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime charged. He must, in other
words, be morally certain of the guilt of the accused.
An accused's claim to the benefit of a doubt when it may be said to exist must not be derived
from speculation but must rest upon a reasonable and solid foundation created either by
positive evidence or gathered from reasonable inferences which are not in conflict with, or
outweighed by, the proved facts of the case.” (My emphasis)
In Reddy 1996 (2) SACR 1 (A) the judge, on page 9, with reference to Chesane 1975 (3) SA
172 (T) held as follows:
“The remarks of the learned Judge (McEwan J)[in Cheswane’s case] in the passage to which
we were referred must be seen in the context of the particular facts of the case which the
Court was concerned with. It is also noteworthy that the learned Judge also referred, with
approval, to the remarks of De Waal JP in R v Herbert 1929 TPD 630 at 636 and Rumpff JA
in S v Glegg 1973 (1) SA 34 (A) at 38H to the effect that in considering the effect of evidence,
one need not be concerned with 'remote and fantastic possibilities' and that it is not
incumbent upon the State to eliminate every conceivable possibility that may depend upon
'pure speculation'. The fact that a number of inferences can be drawn from a certain fact,
taken in isolation, does not mean that in every case the State, in order to discharge the onus
which rests upon it, is 'obliged to indulge in conjecture and find an answer to every possible
inference which ingenuity may suggest any more than the Court is called on to seek
speculative explanations for conduct which on the face of it is incriminating.' (Per Diemont
JA in S v Sauls and Others 1981 (3) SA 172 (A) at 182G-H.) (See also S v Rama 1966 (2) SA
395 (A) at 401A-C, approving the remarks of Malan JA in a minority judgment in R v
Mlambo 1957 (4) SA 727 (A) at 738A-B.)” (My inclusion and emphasis).
The court decisions above makes the position regarding speculation clear! Speculation will
not avail the accused. His answer to the States case must be based on some substantial
foundation of fact (evidence) AND if the State succeeded in adducing prima facie proof of
the accused’s guilt, credible evidence will have to be adduced by the accused to rebut that
prima facie proof. In the absence of such evidence, the prima facie proof will become
conclusive proof!
14
THE EFFECT OF ROSS 2013 (1) SACR 77 (WCC) AND VAN DER SANDT 1997 (2) SACR
116 (W) ON PROSECUTIONS IN TERMS OF SECTION 65(2) OF THE NATIONAL ROAD
TRAFFIC ACT, 1996 (ACT 93 OF 1996)
CHAPTER A
THE CURRENT LEGAL POSITION IN THE WESTERN CAPE PROVINCE IN TERMS OF
S V ROSS AND S V MOUTON
The recent decision of the Western Cape High Court, Cape Town in Ross 2013 (1) SACR 77 (WCC)
delivered by Bozalek J on 25 September 2012, (attached for ease of reference) cast the proverbial cat
amongst the pigeons.
In analyzing the decision of the court, it becomes clear (compare paragraphs [8] to [12] of the
decision) that the additional information (concerning the apparatus that had been used, its calibration
and accuracy) which was included in the relevant 212(4) blood analysis certificate, was, in the view of
the court, inadmissibly included. The merits of the court’s decision that such information should be
adduced in terms of section 212(10) of the Criminal Procedure Act, 1977 (Act 51 of 1977) is subject
to criticism and will be addressed later in this paper.
The Ross-decision came to many as a big surprise as it is directly in conflict with an earlier Western
Cape High Court decision (unfortunately not reported but the relevant portion of the case attached
hereto for ease of reference) (S v Mouton, case no A 449/10, judgment delivered by Weinkove, AJ
during 2010) of which Bozalek J (and the representative of the State) was obviously not aware. In the
Mouton decision Weinkove AJ, held that the additional information (concerning the apparatus that
had been used, its calibration and accuracy) that was, in casu, included in the section 212(4)
certificate as was required in Van Der Sandt 1997 (2) SACR 116 (W) (discussed infra), is
admissible evidence.
As lower courts under the jurisdiction of the Western Cape High Court (Cape Town) are bound by
that court’s decisions, it leaves those courts in the peculiar (and unsatisfactory) position that they are
now confronted with two directly conflicting decisions of the same Province which they are bound to
follow!
This situation is obviously not supporting proper law enforcement in the Western Cape and one could
only hope that the issue would receive proper attention and that legal certainty would be established
sooner than later.
THE LEGAL REQUIREMENTS
In the past the “traditional” 212(4) blood analysis certificates only provided prima facie proof of the
results obtained by the analysts. No proof was tendered in these documents as to how the results were
obtained/established and no proof was provided concerning the accuracy/reliability of the devices
used in the analytical process.
South African law is clear: If the results or readings of measuring instruments which are used in
criminal proceedings to prove an offence are not directly placed in dispute or if they are admitted by
the defence, the courts will normally accept such results or readings without detailed proof of how
these devices function, that they are reliable and that their readings or results have been correctly
determined. (See in this regard Israel 1966 (1) SA 610 (C) on 610 F and Wells 1990 (1) SA 816 (A)).
The use of machines or devices to prove issues in dispute has in the past led to a number of important
decisions. The message is clear: If placed in dispute by the defence, the courts normally require
extensive and detailed proof of the operation and accuracy of such devices prior to convicting the
accused.
15
In Mthimkulu 1975 (4) SA 759 (A) the court referred with approval to Wigmore on Evidence 3 rd ed
vol III at 189-190 where two preconditions are set before testimony may be based on scientific
instruments: Professional evidence (1) to the trustworthiness of the process of the instrument in
general; and (2) to the correctness of the particular instrument. (Compare in this regard similar
sentiments expressed in the decision of Dickenson 1982 (3) SA 84 (A) on 95A).
That this evidential principle reverberates in the South African law is apparent from later cases which
dealt with the operation of measuring instruments. Compare in this regard Van Der Sandt 1997 (2)
SACR 116 (W), where a full bench of the Witwatersrand Local Division of the High Court per Van
Dijkhorst J, on 131 held as follows:
“In prosecutions for contravention of s 122(2) of the Road Traffic Act 29 of 1989 [now section 65(2)
of Act 93 of 1996] the State has to prove that the measuring instrument gives the correct
measurement. This entails that its operation be explained, that it is proved to be trustworthy in its
operation and that its results is (sic) proved to be correct. This includes proof that it is properly
calibrated to official measurements.” (My underlining and inclusion).
Similar sentiments have been expressed in Bester 2004(2) SACR 59 (C), in Price v Mutual &
Federal Insurance Co. Ltd 2007 (1) SACR 501 (SECLD and in the more recent decision in the case
of Molahlane [2009] JOL 23937 (E). In view of the above it should be accepted that, in order to
succeed in prosecutions for contravening section 65(2) of the National Road Traffic Act, 1996, the
State not only has to prove the results of the blood analysis (via a certificate in terms of section
212(4)), but proof must also be adduced as to how the gas-chromatograph operates, how reliable its
readings are and that it has been calibrated. In Ross supra, the court ruled that such evidence cannot
be adduced via a section 212(4) certificate.
THE WAY FORWARD IN THE WESTERN CAPE
Evidence concerning the operation of the gas-chromatograph, its trustworthiness and accuracy and
evidence relating to the calibration of these devices, will primarily have to be sourced from the
Forensic Chemistry Laboratory.
If the section 212(4) certificates issued by the Forensic Chemistry Laboratory Western Cape contains
the additional information concerning the accuracy and calibration of the device that had been used
during the analysis, prosecutors should, so is submitted, proceed to adduce such documents. The
prosecutors should however, before closing the state’s case and with reference to all the authority
discussed below in Chapter B infra, address the court and request the court to rule such evidence
admissible. The court should then be requested to make a ruling in that regard (Compare the
discussion of a courts obligation in this regard in Ramavhale 1996 (1) SACR 639 (A), Ndhlovu 2002
(2) SACR 325 (SCA) and Molimi 2008 (2) SACR 76 (CC).)
Should the court for some or other reason rule that the statement contains inadmissible evidence and
refuses to accept the statement in evidence, prosecutors should then consider the points discussed
below.
It is submitted that this evidence can also be submitted to court in the following ways:
1. Prosecutors in the Western Cape can present such evidence viva voce. This obviously entails
that adequate arrangements will have to be made to ensure the availability on the date of trial
of the analyst who analyzed the relevant blood sample. If such evidence is not disputed or if it
is admitted by the defence, this viva voce evidence will not be necessary. (This will obviously
put a tremendous strain on the laboratory staff and might affect their ability to cope with their
workload.)
16
2. The evidence can be contained in a section 213 (of the Criminal Procedure Act) statement
after proper regard is had to the rules of admissibility provided for in the section. If not in
dispute, the presentation of evidence in this format will satisfy the legal requirements. If the
defence however objects to the presentation of evidence in this format, the evidence shall not
be admissible during the proceedings (compare section 213(2)(d)).
3. An accused may be willing to admit the operation, trustworthiness and calibration of the
device in terms of section 220 of the Criminal Procedure Act. If so, then cadit quaestio!
4. The State may consider presenting the evidence in terms of section 3 of the Law of Evidence
Amendment Act, 1988 (Act 45 of 1988). Although a court may rule the presentation of such
evidence admissible, the evidential value thereof remains uncertain until a court finally makes
a favorable decision in that regard. Should prosecutors consider this avenue, proper regard
should be had to the section and to case law dealing with this issue. Prosecutors ought to
remember however that if the court allows the statement in terms of section 3 of Act 45 of
1988, the statement no longer has the prima facie status it enjoyed in terms of section 212(4)!
5. The State might consider presenting a statement by the analyst containing the relevant
evidence, in terms of section 222 of the Criminal Procedure Act. The provisions of this
section should be carefully considered by prosecutors before submitting same.
In the long run and to avoid many arguments and uncertainties, it may be more prudent to present the
required evidence viva voce.
CHAPTER B
THE LEGAL POSITION IN THE REST OF SOUTH AFRICA IN TERMS OF S V VAN DER
SANDT
An attempt was made under Chapter A and under the heading THE LEGAL REQUIREMENTS to
provide a brief compendium of the general legal principles applicable in cases where the State makes
use of machines / devices to prove issues in dispute during criminal court cases.
In that paragraph reference was made to a number of recent High Court decisions where the courts
followed the rules laid down by the Appeal Court. For the sake of clarity and to ensure that
prosecutors understand the issue, it is perhaps appropriate to quote a few remarks made by the judges
in these cases.
In Van Der Sandt 1997 (2) SACR 116 (W), a full bench of the Witwatersrand Local Division of the
High Court held as follows on 131 (per Van Dijkhorst J) :
“In prosecutions for contravention of s 122(2) of the Road Traffic Act 29 of 1989 [now section 65(2)
of Act 93 of 1996] the State has to prove that the measuring instrument gives the correct
measurement. This entails that its operation be explained, that it is proved to be trustworthy in its
operation and that its results is (sic) proved to be correct. This includes proof that it is properly
calibrated to official measurements.” (My underlining and inclusion).
In Bester 2004(2) SACR 59 (C), Erasmus J remarked in a case dealing with the contravention of
section 65(5), after extensive reference to the principles laid down in Van Der Sandt, supra, Strydom
1978 (4) SA 748 (E) on 751 F-H and Mthimkulu 1975 SA 759 (A) as follows:
“In die onderhawige geval is daar geen getuienis aangebied ten opsigte van die korrektheid van die
toetsingsproses nie ... Veral in ʼn geval, soos hierdie, waar gebruik gemaak word van gesofistikeerde
17
en outomatiese apparaat ......., word daar na my mening vereis dat daar bewys van betroubaarheid
van die apparaat in die analise moet wees.
Die Staatsaak in die onderhawige geval gaan mank daaraan en derhalwe kan die bevinding ten
opsigte van die appellant se alkoholasemkonsentrasie nie bevestig word nie.”
In Price v Mutual & Federal Insurance Co. Ltd 2007 (1) SACR 501 (SECLD), Sangoni J, on 512 h
refers with approval to the above quoted passage in Van Der Sandt, supra and indicates that, apart
from requiring proof that breathalyzers are properly calibrated before they are used, proof needs to be
adduced that “…the specific machine used was in a good working order at the time…”. He further
states “ It is trite that, with regard to evidential breath testers, there are standards or specifications to
be met that are laid down or prescribed within the relevant jurisdictions. …. Such specification seeks
to eliminate the risk of a false result with regard to breath-alcohol value. With such specifications and
stringent requirements one in effect moves from the generality of a brand to the specificity of an
individual instrument, with a view to eliminating the risk of false or incorrect results.” (My
emphasis).
More recently in the case of Molahlane [2009] JOL 23937 (E), Plasket J, with reference to
prosecutions in terms of section 65(5) of the National Road Traffic Act 93 of 1996 held as follows in
paragraph [7] of the case: “It is required of the State when prosecuting a person on a charge of
contravening s 65(5)(a) of the Act to prove that the accused’s alcohol concentration had been tested
by the ‘prescribed equipment’ as envisaged by the Act. It is also incumbent on the State to prove the
reliability of the apparatus used and of its analysis. With reference to Bester and the subsequent case
of Price v Mutual and Federal Insurance Co Ltd, Hoctor summarises the position thus:
‘In terms of s 65(7), the concentration of alcohol in the accused’s breath is ascertained by using the
prescribed equipment. Such equipment, in terms of reg 332 of the Regulations, must comply with the
requirements of the standard specification SABS 1793 “Evidential breath testing”. For a conviction it
is essential for the State to lead evidence (i) explaining the operation of the equipment, (ii) proving
that the equipment is trustworthy in its operation, and (iii) establishing that the result obtained by the
equipment is correct, including proof that the equipment is properly calibrated to official
measurements.”
In casu the state failed to adduce such evidence and the conviction was set aside.
A careful study of the cases leaves one in no doubt about the obligation resting on the State in this
regard.
In Chapter A above it was indicated that the Ross-decision clearly held that the evidence regarding
the general functioning of the gas-chromatograph, its trustworthiness /accuracy and the calibration of
18
the device, cannot be adduced by a section 212(4) certificate. If it is done in this fashion, that
evidence will be ruled inadmissible. This decision is, as was pointed out above, in conflict with the
earlier decision of the Western Cape High Court in Mouton.
WHAT IS THE LEGAL POSITION REGARDING THIS ISSUE IN THE REST OF SOUTH
AFRICA?
The answer to this problem, so is submitted, is found in the decision of Van Der Sandt 1997 (2)
SACR 116 (W). This particular case was heard by a Full Court due to a number of predating
conflicting decisions on other aspects of the law which are not relevant to the current discussion.
Being a decision of a Full Court, and although many of the rulings may be viewed as obiter remarks,
it is submitted that this decision carries strong persuasive force which at least deserves serious
consideration by prosecutors and magistrates.
The decision in Van Der Sandt supra was approved and followed (by implication) in the subsequent
cases of Gamede [2009] JOL 24178 (KZP), Price v Mutual & Federal Insurance Co. Ltd supra and
in the very recent, as yet unreported decision of the court in Sithole and The State, (a decision of the
High Court North Gauteng Pretoria, case number A 1051/11, delivered on 8 October 2012 by Bam
AJ. (Compare paragraph 24 of the decision)).
It is appropriate to refer here to some of the remarks made by Van Dijkhorst J in Van Der Sandt
supra. The judge clearly identifies the problem facing the state as follows on 131:
“This brings me to the real problem facing the State. A requirement that in every case viva voce
evidence should be adduced of the operation, effectiveness and correctness of the gas chromatograph
will put a severe strain on the staff of the State laboratories”.
The judge then proceeds to provide the solution, making very important remarks in133 and further.
Due to the wide dimensions of the judgment, an attempt will be made to tabulate the most important
findings of the court and then to give a discussion thereof. This summary should not be seen as a
substitute for the case itself. The case must still be comprehensively studied by prosecutors!
The following remarks were made in the course of the judgment:
3.1
The gas-chromatograph is not an apparatus which can be operated reliably by a layman.
3.2
The courts cannot take judicial notice of the operation of the apparatus, because the functioning
thereof is at present not well known.
3.3
The “measuring standard” which is referred to in section 7(5) of Act 76 of 1973 (which
measuring standard “... for the purposes of any law or any other legal purpose, be traceable to
a national measuring standard ...”), is not a reference to a measuring apparatus, but reference
to an official measuring standard which is used by officials of metrology to test measuring
apparatus which are generally used in the trade. These measuring standards are also called
departmental, regional and inspection standards.
These measuring standards are used in
compliance with the provisions of the Trade Metrology Act, 1973 (Act 77 of 1973). It is these
latter standards which must be “traceable” to the “measuring standards” set out in section 7(5)
19
of Act 76 of 1973. These measuring standards can be used to calibrate other measuring
apparatus.
3.4
Evidence that instruments were calibrated (assized), was in the past accepted by our courts as
prima facie proof of the correctness thereof. This included acceptance of three aspects:
1.
That a duly qualified and authorized person in his official capacity had tested the
instruments and found them to be in proper working order;
2.
That the yardstick he had used in checking its calibration was reliable (i.e. that it
conformed with the national measuring standard); and
3.
That the instrument had not since assizement become unreliable.
(The court in this regard referred to Mthimkulu 1975 (4) SA 759 (A) on 763A-D, 765 B-H).
3.5
The court will not to the same extent accept that instruments which have not been calibrated,
also function reliably.
3.6
For the purposes of prosecutions in terms of section 65(2) of the Road Traffic Act, 1989
(Act 29 of 1989) the state will have to prove that the measuring instrument which was
used gave a correct measurement. This means that the operation of such apparatus will
have to be explained, that proof must be adduced that such apparatus is reliable for the
purpose for which it was used and that the result obtained was reliable and correct. Proof
must also be adduced that the apparatus was properly calibrated to official
measurements.
3.7
This does not mean that a court will not be entitled to take judicial notice of and accept as
adequate proof of the trustworthiness that the particular instrument has been properly
calibrated.
3.8
A gas-chromatograph as such cannot be calibrated. The “weights” which are used in the
process, can however be calibrated.
3.9
Although section 212(4) of the Criminal Procedure Act attaches prima facie proof to the
certificate wherein the result of the blood analysis is mentioned, it does not mean that the
section necessarily does away with proof, that the applicable apparatus was reliable and
functioning correctly.
If no judicial notice can be taken of the applicable apparatus’s
functioning and reliability, the expert who used the apparatus, should still be compelled to
explain which apparatus has been used, explain the functioning of the apparatus and why it is
reliable.
3.10
Proof of the reliability of the applicable apparatus, can be ignored in cases where there is a
high degree of probability that it is reliable or in cases where it was tested. If during the
analysis use is made of a measuring standard, proof that it was calibrated is normally
also proof of its accuracy. (Compare Mthimkulu 1975 (4) SA 759 (A).)
3.11
When the gas-chromatograph is calibrated and part of the calibration includes the use of a set
of weights to determine mass, a statement to the effect that the weights were calibrated
20
(despite the fact that this might be hearsay evidence) will be sufficient proof thereof. No
further proof that the weights are traceable to the official measuring standard is
required.
3.12
The operation of the gas-chromatograph is not of general knowledge to the courts.
Judicial notice cannot be taken of the instrument’s reliability. It would therefore not be
unreasonable to expect the chemical analyst, should he wish to avoid having to give viva
voce evidence, to set out fully in his statement in terms of section 212(4), his
qualifications, the process used to analyze the blood, the result of the analysis and the
reasons for its reliability. Such comprehensive explanation is an indispensable part of
the required evidence which must be adduced.
3.13
No support can be found in the argument that section 212(4) intended to do away with the
requirement that the expert who used the apparatus to ascertain a certain fact, should also give
evidence as to how the apparatus functions, that it is reliable for this purpose, what the result
of the test was and that it was reliable. To expect the expert to give this information in the
certificate again would not be outside the wording of section 212(4).
3.14
Before section 212(4) has any effect, the court must be convinced that the fact was
determined by an examination or process requiring skill in “chemistry” from the person who
determined the fact. The court cannot merely be convinced by a statement to this effect.
The process must be explained, so that the court may be placed in a position to be able
to determine whether skills in chemistry are in fact necessary to establish the fact. The
entire process does not require the application of knowledge regarding chemistry, but the
process as a whole must be of such a nature that it cannot be effectively carried out by a
layman. (See in this regard also the recent decision of the court in Sishi [2000] 3 All SA 56
(N)).
3.15
Is it necessary that the expert must, apart from the explanation on the operation of the
apparatus or process, the reliability thereof, etc, also set out in his statement that the
instrument was calibrated against assized apparatus to such an extent that it is traceable to the
national measuring standard? The answer is no. A court must be practical. If a court can
take judicial notice of hearsay evidence on assized scales, as was done in Mthimkulu supra,
the court can certainly take judicial notice of the fact that the probability exists that experts
who calibrate apparatus in their laboratories, will do so against the national measuring
standard. The mere allegation of such proper calibration, will be sufficient prima facie
evidence thereof. This inference is also in accordance with the wording of section 212(4)
which only requires that the process be set out.
21
It is necessary to make a few comments here on the views of Bozalek J on the calibration of devices
as expressed it in Ross supra especially as this decision is directly in conflict with the decision of the
court in Van Der Sandt supra.
In paragraph [9] and [10] of the judgment Bozalek J explains the perceived difference between section
212(4) and section 212(10) of the Criminal Procedure Act, 1977 (Act 51 of 1977).
He indicates that section 212(4) stipulates that certain factual findings established inter alia by an
examination or process requiring any skill in a range of scientific fields, may be prima facie proved
by the production of a section 212(4) affidavit. In contrast to this section, he finds that if a fact is
sought to be established by a reading from a measuring instrument, the calibration and accuracy of
such instrument is dealt with by section 212(10) of the Criminal Procedure Act. In paragraph [11] he
finds in this regard as follows: “As is apparent from these provisions, ss10 does not allow prima facie
proof of the calibration and /or accuracy of any measuring instrument by way of certificate.
Notwithstanding this, the certificate proffered in the present matter purported to deal with the
accuracy and calibration of the measuring instruments used in the blood specimen test as follows:
“5
The concentration of ethanol (hereafter referred to as ‘alcohol’ in blood specimens
and other fluids of biological origin, is established by using gas chromatography. The blood specimen
(…) was analysed in duplicate using the following method(…):
5.1
The gas chromatographs are calibrated before the specimen are analysed. Calibration
is done by using certified alcohol standards of different conditions to obtain a
calibration curve. The certified standards are supplied by the National Metrology
Institute of South Africa (NMISA), which is the custodian of national measuring
standards in South Africa.” (My underlining and emphasis).
In paragraph [12] Bozalek J then makes the following ruling: “The ‘evidence’ in question quoted
above was inadmissible since it was not proved by means of an affidavit, viva voce evidence nor was
it admitted by agreement. In argument it was conceded on behalf of the state that this evidence should
have been proved by way of an affidavit….” (My underlining and emphasis).
Finally Bozalek also remarks in the last sentence of paragraph [20] of the decision as follows: “ No
explanation has been proffered as to why it (the State) believed that it was entitled to do so by means
of a certificate, notwithstanding the provisions of s 212(10) which require the use of an
affidavit.”(My inclusion and emphasis).
Without being overly critical, the decision of Bozalek J is, inter alia, respectfully subject to criticism
for the following reasons:
•
Section 212(10) is currently not applicable in South Africa in view of the fact that the
Minister has not yet complied with the jurisdictional factor provided for in the section. The
22
section provides as follows: “The Minister may in respect of any measuring instrument as
defined in section 1 of the Trade Metrology Act, 1973 (Act 77 of 1973), by notice in the
Gazette prescribe the conditions and requirements which shall be complied with before any
reading by such measuring instrument may be accepted in criminal proceedings as proof of
the fact which it purports to prove, and if the Minister has so prescribed such conditions
and requirements and upon proof that such conditions and requirements have been
complied with in respect of any particular measuring instrument, the measuring instrument
in question shall, for the purposes of proving the fact which it purports to prove, be
accepted at criminal proceedings as proving the fact recorded by it, unless the contrary is
proved.” (My emphasis).
Until the envisaged conditions and requirements are published by the Minister in Gazette,
no affidavit can be submitted to court in terms of section 212(10)!
(Ex abundanti cautela the following remarks must be made:
(i)
Bozalek J is apparently of the view that calibration of devices must be proved
(in the absence of viva voce evidence or other evidential material) by an
affidavit (and not a certificate) in terms of section 212(10) of the Criminal
Procedure Act before such evidence will be admissible. It is submitted that
there is no substance in this ruling in view of the fact that section 212(10) does
not refer to calibration of devices as it is currently formulated. There is further
no guarantee that if the Minister does indeed formulate and publish conditions
and requirements concerning measuring instruments, that the calibration
process will form part of these conditions and requirements.
It is further submitted that there is currently no authority nor any substance in
the view (if such view exists) that evidence concerning calibration of devices,
in the absence of viva voce evidence or other admissible evidential material,
can only be proved via an affidavit!
(ii)
Section
212(10)
allows
the
Minister
to
publish
conditions
and
requirements “of any measuring instrument as defined in section 1 of the Trade
Metrology Act, 1973 (Act 77 of 1973)” There is apparently currently also
uncertainty whether a gas chromatograph is a measuring instrument as defined in
section 1 of the Metrology Act, 1973. Compare in this regard the description of
the operation of a gas chromatograph as set out in Dickenson 1982 (3) SA 84
(A) on 95A and the remarks made by the court in 91 and a similar description in
Greef 1995 (2) SACR 687 (A). Only time will tell whether, having regard to the
above mentioned definition in the Trade Metrology Act, conditions and
23
requirements will be published in the Gazette by the Minister concerning the gas
chromatograph.
•
The concession made by the state advocate in paragraph [12] was, as is respectfully
submitted, ill-conceived and out of order. The advocate was apparently unaware of the
decision in Van Der Sandt supra (and obviously also unaware of the Mouton decision)
where approval has been given for the presentation of evidence concerning the calibration
etc. via the presentation of a section 212(4) certificate. The concession that the evidence
should have been proved by way of affidavit is nonsensical and wrong!
•
Bozalek J apparently did not know of or consider the decision in Van Der Sandt or
Mouton supra in this regard. Had this been done, the final decision might have been quite
different.
At the beginning of this paper it was mentioned that courts do not blindly accept the results of
apparatus if they are used to prove a fact in dispute. The court will only accept such evidence if it is
properly proved that the applicable apparatus or instrument which was used is reliable for this
purpose, that it functioned properly and that it gave accurate results.
This principle is clearly
confirmed in Van der Sandt supra.
What is of importance, is that this court held that such evidence can be adduced documentarily in
terms of a section 212(4) certificate and that it need not be proved by viva voca evidence or other
evidential material. This dictum was followed by the judge in the Mouton decision! The implication
thereof is that if the analyst comprehensively sets out in a section 212(4)-certificate, (or in an
annexure which is clearly identifiable as part of the certificate,) the process which was used during the
analysis, that such process and analysis is reliable and trustworthy and that a proper calibrated process
was followed, then such certificate provides prima facie proof of what is alleged until it is rebutted by
the defence. If the contents of the certificate are not rebutted by credible evidence, a court may at the
end of the case, find that such prima facie proof is conclusive proof of the fact. See also Sishi [2000]
All SA 56 (N) where the Kwa Zulu-Natal Provincial Division approved and required this evidence.
The value of such a comprehensive statement is that it will obviate the need to call the analyst to
adduce viva voce evidence!
With regard to 212(4) statements, the following must be remembered: A section 212(4)(a) certificate
is admissible evidential material irrespective of whether the accused or his legal representative
admits or objects thereto provided it complies with the requirements of the section! In contrast
with section 239 of the previous Criminal Procedure Act,1956 (Act 55 of 1956) the admissibility of
the certificate is not dependent on the defence’s approval. Compare in this regard Chizah 1960 (1)
24
SA 435 (A); Veldhuizen 1982 (3) SA 413 (A) Abel 1990 (2) SACR 367 (C) and Britz 1994 (2)
SACR 687 (W).
Prosecutors should remember that they cannot be compelled by the court or by the defence to call the
analyst to give viva voce evidence. If the court for one or other reason finds it necessary that the
analyst should give viva voce evidence, the court is entitled to make such an order. (Compare section
212(12); 167 and 186 of the Criminal Procedure Act, 1977 and Sishi [2000] 3 All SA 56 (N)).
CONCLUSION
Except for prosecutions in the Western Cape Province (where courts will obviously be in turmoil in
view of the conflicting decisions) prosecutions in the rest of South Africa, so is submitted, should
proceed as was the situation for the past 15 years (since the judgment in Van Der Sandt supra.)
This entails that the additional evidence (how the gas chromatograph functions, why it is trustworthy
and accurate and that it had been calibrated) required by Mthimkulu 1975 (4) SA 759 (A), should be
adduced by the prosecution when prosecuting offenders in terms of section 65(2) of the National Road
Traffic Act, 1996 or in any other criminal case where the results or reading of a device is to be
submitted as prove of issues in dispute. The vehicle to adduce this evidence in prosecutions for
contraventions of section 65(2) of the National Road Traffic Act, is a certificate in terms of
section 212(4) of the Criminal Procedure Act, 1977.
It stands to reason that prosecutors should carefully consider the section 212(4) certificate in view of
the fact that this certificate will only be admissible evidential material if it complies with the
requirements set out in the sub-section! Prosecutors should make sure that the 212(4) certificate
embodies the information (from the analyst) required by the court in Van Der Sandt, supra in detail!
Finally the following: It can do no harm if prosecutors, in addressing the courts before judgment and
if a section 212(4) certificate, containing the relevant information, was submitted by the state in those
proceedings, point out to the court that the additional evidence contained in the 212(4) certificate, is in
fact legally required and that it is admissible in terms of the Van Der Sandt and Mouton decisions.
Such address might enlighten magistrates and make them aware of these decisions. It will allow them
to mention this in their judgments and in an appeal later lodged against the decision of the magistrate,
High Court prosecutors and Judges will note the reason why the court a quo accepted the evidence
and ruled it to be admissible. This might assist the court on appeal to at least take note of the Van Der
Sandt and Mouton decisions and to then make a proper finding in this regard.
25
J F Scheepers
Justice College
May 2013
-ooOoo-
“IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: A449/10
LOWER COURT CASE NO. 458/09
In the matter of:
JOHANNES DE VILLIERS MOUTON …............................................................................Appellant
and
THE STATE …...............................................................................................................Respondent
JUDGMENT
WEINKOVE, AJ
1. Appellant was charged with contravening Section 65(1 )(a) of Act 93 of 1996 in that on Saturday,
19 July 2008, he drove a motor vehicle, CVY 11989 while under the influence of alcohol. The
alternate charge was that he drove at a time when his blood alcohol level was in excess of
26
0.05g/100ml, i.e. being 0.20g/100ml. A second alternative charge was that he drove recklessly or
negligently.
2. Both in the court a quo and before us, appellant's counsel challenged the evidentiary value of the
affidavit in terms of section 212 of the Criminal Procedure Act No 51 of 1977 ("the Act") which had
been handed in to the trial court as evidence. The document recorded the procedure followed in
analysing the sample which had been taken of the appellant's blood and recorded the conclusion that
the concentration of the alcohol in the blood specimen was 0.20g/100ml. Relying on the full bench
decision in S v Van der Sandt1 counsel submitted that the affidavit lacked the necessary averments
concerning the reliability of the apparatus used and also that no evidence had been placed before the
court in regard to the calibration of the apparatus used to test the blood sample. In view of this
challenge, it is necessary to quote the relevant portions of the affidavit in full.
"In terms of subsections 212 (4) (a) and 212 (8) (a) of the Criminal Procedure Act, 1977
(Act 51 of 1977), I, Lunga Soboyisi. hereby certify as follows:
1. I have a National Diploma in Analytical Chemistry from the Cape Peninsula University
of Technology and am in the employ of the State as an Assistant Forensic Analyst at the
Forensic Chemistry Laboratory of the National Department of Health. Cape Town.
2. On 24 July 2008, the Laboratory received from the South African Police Service,
Moorreesburg, a polystyrene container, sealed with seal number FA121177 and bearing
the identification mark:
MOORREESBURG 98-07-2008
3. The polystyrene container was kept in an access- controlled area until analysis.
On 22 August 2008, in the performance of my official duties, I broke the intact seal and
found a blood specimen with a label attached to it bearing the following identification
mark:
FA121177
27
4. I analysed the blood specimen by means of the method described in Paragraphs 5
and 6, which requires skill in chemistry, and obtained the following results:
4.1. The concentration of the alcohol in the blood specimen was 0.20 grams per 100
millilitres.
4.2. The concentration of the sodium fluoride in the blood specimen was 1.4%.
5. The concentration of ethanol (hereinafter referred to as 'alcohol') in blood specimens
and other fluids of biological origin, is established by using gas chromatography. This
blood specimen (CTN-DD08690/2008) was analysed in duplicate using the following
method:
5.1. The gas chromatographs are calibrated before the specimens are analysed. Calibration
is done by using certified alcohol standards of different concentrations to obtain a calibration
curve. The certified standards are supplied by the National Metrology Institute of South
Africa (NMISA), which is the custodian of national measuring standards in South Africa.
5.2. The blood specimen and internal standard (tertiary butanol) are dispensed into a
headspace vial by means of a diluter/dispenser that has been verified with respect to
volume.
5.3. The headspace vial referred to in 5.2 is then equilibrated in a headspace autosampler
and. after a set period of time, a sample of the headspace in the vial is injected onto a
column in a gas chromatograph. The headspace sample containing the alcohol and internal
standard flows with the mobile phase (nitrogen) through the column where, as a result of
interactions between the compounds (alcohol and internal standard) and the column
matehal, the compounds are separated. The two gas chromatographs are operated under
different experimental conditions using columns of differing polahty.
5.4. At the end of the column a detector is situated that detects the compounds flowing with
the mobile phase through the column. The signal generated by the detector is captured by
chromatographic software and a chromatogram is illustrated. The chromatogram represents
the detector's response to the alcohol and internal standard, which are observed as separate
peaks, and provides the information necessary to calculate the alcohol concentration.
Alcohol and internal standard are identified by their retention times (i.e. their time of
residence on the column).
5.5 Reliability of the gas chromatographs is constantly checked by having recourse to the
reproducibility of the retention times of the compounds on the column, base-line appearance
and resolution between alcohol and internal standard peaks. In addition, a quality control
specimen is chromatographed regularly to verify instrument performance. 5.6. This method
has been validated.
6. The concentration of the sodium fluoride in blood specimens and other fluids of biological
origin is established by using a fluoride electrode connected to an ion selective meter. This
blood specimen (CTN-DD08690/2008) was analysed using the following method:
28
6.1. The ion selective meter is calibrated by using certified reference standards of
different concentrations, which are obtained from the National Metrology Institute of
South Afhca (NMISA).
6.2. The electrode is placed directly into the blood specimen and the concentration is
displayed and recorded.
6.3. In addition, a quality control standard is analysed regularly during the analysis of
a batch to check instrument performance.
6.4. This method has been validated."
3. In Van der Sandt Van Dijkhorst J embarked on a detailed examination of the case history at the
time, found that the subsection was not unconstitutional and in regard to the point made to the
appellant before us in respect of the calibration of the apparatus used, made the following finding:
"If therefore a gas chromatograph is calibrated and as part of such calibration, eg a
set of weights is used to determine mass, a statement that they have been officially
assized (albeit hearsay as to their correctness) would be adequate. No further proof
is required to establish that that set of weights conforms with an official standard. ' 2
and further
"One question remains: Must the deponent to the affidavit or certificate in addition to
an explanation of the process and instrument used and its efficacy set out that it has
been calibrated against assized units of measure or draw the line right through to the
national measuring standard? Neither, in my view. A court of law should be practical.
If a court can take judicial notice of hearsay evidence about assized scales, as was
done in S v Mthimkulu'3 (supra), there can be no serious objection to judicial notice of
the fact that there is a high likelihood that scientists in designated government
laboratories when calibrating their instruments will do so against correct standards.
The mere allegation of proper calibration will in my view be adequate prima facie
proof thereof. This conclusion is in conformity with the wording of s 212 (4) which
requires no more than that the process be set out. 4
29
In my view the affidavit accepted by the court a quo complies in all respects with the requirements set
out by Van Dijkhorst J as well as the requirements set out by Du Plessis J in his concurring minority
judgment. These relate to the manner in which the qualifications of the deponent are to be set out and
the detail required in respect of the process requiring skill and chemistry which has been used, as
also the requirement that the deponent must state that the chromatographs were properly calibrated.
In argument before us, appellant's counsel expanded his attack on the acceptance of the affidavit by
submitting that information was required as to the standard used by the NMISA in regard to the
weights used for the calibration. It is clear from the certificate that no weights were required and that
the calibration was done by using certified alcohol standards of different concentrations to obtain a
calibration curve. In my view the averment to the effect that the certified standards are supplied by the
NMISA is sufficient, having regard to the portion of the Van der Sandt judgment quoted
above.
4. Appellant's counsel also asked us to find that there was a reasonable doubt that the appellant's
blood may have been contaminated prior to the test being completed. This submission was based on
the fact that according to the affidavit filed in terms of section 212 (4) the deponent broke the intact
seal in which the blood specimen of the appellant was contained on 22 August 2008 while it appeared
from document supplied as further particulars to the charge sheet that the "date of injection"
(apparently in respect of the sample) was 26 August 2008. Counsel made much of the fact that he
had informed the state that he intended to attack virtually every element of the state's case, and in
particular the section 212 affidavit and that he expected the state to call the deponent to the affidavit
so that he could be cross-examined. The state elected not to do so and relied on the certificate. We
have no knowledge as to the meaning of the "date of injection" or whether the appellant's blood could
have been contaminated by a delay in examining it, but a remedy was available to the appellant's
30
counsel. As pointed out in Van der Sandt,5 section 212 (12) of the Criminal Procedure Act permits the
court to call the deponent to the affidavit to testify viva voce and a court which refuses a fair request to
the accused to do so will put the outcome of the trial at risk. Appellant's counsel could therefore have
requested the magistrate to call the deponent to give evidence or he could of course have called an
expert himself. That such steps were available was also made clear in S v Tshabalala6 a judgment
given in this division. Where the requirements of section 212 (4) (a), as discussed in Van der Sandt's
case have been complied with, the fact established in terms of that section shall upon the mere
production of an appropriate affidavit be prima facie proof of such fact. In the present case thus the
finding was that the concentration of the appellant's concentration of alcohol in the blood specimen
was 0.20g/100ml. In S v Veldthuizen7 it was made clear that the words "prima facie evidence" cannot
be brushed aside or minimised and in S v Greeff8 also a judgment of the Supreme Court of Appeal,
Grosskopf JA said the following:
"Die vraag is nou of die appellant se skuld bo redelike twyfel bewys is. As die
sertifikaat sy voile regskrag het ingevolge art 212(4)(a) van die Strafproseswet, moet
die antwoord bevestigend wees. (Sien S v Veldthuizen 1982 (3) SA 413 (A) op 416gh.) Die feit wat bewys moes word was dat die monster bloed nie minder nie as 0,80
gram per milliliter alcohol bevat het. Die sertifikaat voldoen aan al die formele
vereistes om prima facie bewys te vorm dat die bloedkonsentrasie 0,27 gram per
milliliter bloed was."
5. In my view therefore the magistrate was correct to treat the affidavit in terms of the section as one
which established prima facie that the appellant's blood alcohol content was 0.20g/100ml.” (My
emphasis).
31