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[2021] ZAWCHC 231
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Hall v S (A173/21) [2021] ZAWCHC 231 (12 November 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case number: A173/21
Magistrate’s Court Case
Nr. C214/21
Coram:
Goliath DJP et Montzinger AJ
Heard: 05
November 2021
Delivered: 12
November 2021
In the matter between:
PETER HALL
Appellant
and
THE
STATE
Respondent
JUDGMENT
(DELIVERED BY E-MAIL ON 12
NOVEMBER 2021)
MONTZINGER
AJ
(GOLIATH DJP
concurring)
[1]
On 21 May 2021 the appellant was convicted in Worcester Magistrate’s
Court on
one count of contravening section 65(2)(a) of the National
Road Traffic Act 93 of 1996 (“the Traffic Act”). It
was alleged that he drove a motor vehicle on a public road, while the
concentration of alcohol in his blood exceeded the legal
limit of
0.05 g/100 milliliters, to wit 0,25g/100 milliliters. He was
sentenced to a fine of R2000 or six months imprisonment,
wholly
suspended for a period of two years. With the leave of the court a
quo, the appellant now appeals against his conviction.
[2]
The appellant pleaded not guilty to the charge and made admissions in
terms of the
provisions of section 220 of the Criminal Procedure Act
51 of 1977 (“the CPA”). He admitted
that
on 10 September 2019, he was the driver of the motor vehicle
with registration number [….] on the Robertson Road,
Worcester,
a public road.
At the outset, the appellant’s legal representative conveyed to
the court a quo that he disputed that the blood specimen was
correctly obtained, sealed, handled, or analysed.
[3]
The state called Mr Ayanda Botla, a traffic officer at Breede Valley
Municipality
as a witness. The state also presented evidence by
handing in a certificate by
Mr Kojak Bastian Samuels in terms of the provisions
[1]
of the CPA. After leading the evidence by Mr Botla and Mr
Samuels, the state closed its case. The appellant did not
testify in his own defence and closed his case. No other evidence was
presented on behalf of the appellant.
The
evidence before the lower Court
[4]
Officer Botla testified that on 10 September 2019 he was on patrol
duty when he observed
the appellant driving a car with registration
number NU 63997, with a cell phone in his hand. Botla
immediately activated
the patrol car’s lights and siren, and
signaled to the appellant to stop, which he eventually did at a
nearby petrol station.
Botla explained to the appellant the
reasons why he was stopped. During their engagement, Botla
detected the smell of alcohol
and questioned the appellant to
determine whether he drank alcohol. The appellant denied that
he consumed alcohol.
According to Botla the time of the
incident was approximately 16:05 in the afternoon.
[5]
Botla was suspicious of the appellant’s level of alcohol
intoxication, and requested
a colleague to bring a breathalyser
dragger machine. On arrival of the machine, he requested the
appellant to submit himself to
a breathalyzer test. The appellant
agreed and the machine registered a reading of 0.24 g/100 millimeter.
Since this reading
was over the allowable legal limit, he
informed the appellant of his rights and arrested him at
approximately 16:15.
[6]
Botla testified that he instructed the appellant to accompany him to
the police station,
and they travelled together in the patrol car. At
the police station, Botla collected a blood sample kit with serial
number DD397719,
and thereafter, he accompanied the appellant to
Worcester hospital. They arrived at the hospital at approximately
17:05.
[7]
Botla explained that on their arrival at the hospital, the appellant
was registered
on the system, and they were escorted to a waiting
room. At approximately 17:50, the doctor, Dr Naidoo, arrived
and Botla
handed the blood sample kit to him. Dr Naidoo did the
mandatory interview with the accused in the presence of Botla.
The interview was concluded and at approximately 17:55 Dr Naidoo drew
the appellant’s blood and sealed the sample in front
of the
appellant and Botla. The serial number of the sealed blood
sample was DD397720, and was booked into the SAP 13 store
with
Worcester SAPS 13/1727/2019.
[8]
During cross-examination, Botla remained consistent in his
recollection of the events
on that day. Two material issues
arose during cross-examination. Firstly, the appellant’s
legal representative
disputed the exact time when the appellant’s
blood was allegedly drawn by Dr Naidoo. Having been arrested at
16:15, the blood
sample had to be obtained before 18:15.
However, Botla insisted that although he and the appellant waited
approximately an
hour at the hospital, the blood was drawn by 17:55.
[9]
The second issue under cross-examination related to a demonstration
by Botla as to
the security of the seal on the container that holds
the tube with the blood sample. The appellant contends
that it
is apparent from the demonstration by Botla that the seal can
be placed back on the container and can thus be tampered with.
The appellant’s representative invited Botla to do the
demonstration, but it was not clarified what the relevance of the
demonstration was. It was also never put to Botla that the seal
of the container that held the tube with the appellant’s
blood
sample had been tampered with.
[10]
As mentioned, at the conclusion of Botla’s testimony the state
handed in a certificate
in terms of s 212 (4)(a) of the CPA deposed
to by Mr Kojack Samuels. This certificate was admitted by the
appellant and was
accepted as part of the record. Mr Samuels
was a forensic analyst in the service of the Forensic Chemistry
Laboratory of
the Department of Health, in Cape Town. On 13
September 2019, the laboratory received a container sealed with
number D397720,
and bearing the identification mark of Worcester SAPS
238/09/2019 from the South African Police. Samuels confirmed
that the
container was kept in an access-controlled area until the
analysis was executed. He confirmed in his section 212 (4)(a)
certificate
that the seal remained intact. On 9 October 2019,
he broke the intact seal and found a blood specimen with a label
attached,
bearing the mark Worcester SAPS 238/09/2019 and reference
number D397720. He analysed the blood specimen by using a
chemical separation technique called gas chromatography and found
that the blood specimen contained a concentration of alcohol
of 0,25g
per 100 milliliters. The concentration of the sodium fluoride
in the blood specimen was 1,7g per 100 milliliters.
[11]
Samuels further stated that the gas chromatograph was calibrated
before the specimens were analysed.
He confirmed that he was
responsible for the calibration of the gas chromatographic machines
before analysing the blood samples.
He explained that calibration is
done by using certified outdoor standards of different conditions to
obtain a calibration curve,
and the certified standards are supplied
by the National Metrology Institute of South Africa. He would
also regularly verify
the performance of the instruments by testing a
quality control sample to check that the gas chromatograph was still
operating
in accordance with acceptable standards.
The
Grounds of appeal and the appeal court’s approach
[12]
The appellant contends that the magistrate materially erred and
misdirected herself by finding
that: (1) the appellant’s blood
was obtained within the two-hour period; (2) a registered medical
practitioner drew the appellant’s
blood, (3) the state proved
the chain of custody of the blood sample beyond reasonable doubt, (4)
the section 212(4)(a) certificate
for the calibration of the
measuring instrument is admissible evidence.
[13]
In analyzing the grounds of appeal this Court is aware of the
approach it is obliged to follow
as confirmed in
S
v Hadebe & others
[2]
.
It is trite that a court of appeal will only interfere with the trial
court’s factual findings if the lower court
committed a
demonstrable and material misdirection and if the findings of fact
were clearly wrong.
[14]
It follows that if we are not convinced that the lower court
materially misdirected itself in
respect of its findings that relates
to any of the grounds advanced, then the appeal must fail. The
grounds will be considered
in turn.
Was
the blood drawn within the two-hour period?
[15]
The only evidence that served before the lower court regarding the
time the blood was drawn was
that of Botla. The appellant’s
attack on Botla’s evidence on this aspect are twofold.
Firstly, that the
‘
manner’
in which the evidence
regarding time was placed before the court was inadmissible.
The ‘
manner’
referring to Botla relying on a piece
of paper that contained information that he obtained from his
pocketbook and police statement
to refresh his memory for his
testimony. Secondly, it was contended that Botla’s
recollection of the events on 10 September
2019 is not reliable, as
he had to testify from the mentioned piece of paper, and not his
notebook. Consequently, it was argued
that he had no independent
recollection of the day in question, and therefore the evidence he
presented was inadmissible.
[16]
An overview of the evidence before the lower court reveals that
Botla, by virtue of his position,
had been involved in numerous
situations where he dealt with motor vehicle drivers who are
suspected of driving under the influence
of alcohol. In the normal
course of his duties, he would accompany the driver to a hospital to
have his/her blood drawn by a medical
practitioner, and subsequently
analysed. Botla testified that because of his experience,
he has a pocketbook in which
he records the times, and the serial
numbers of the blood sample kits in respect of each incident.
He is therefore aware
of the critical importance of maintaining an
adequate record of firstly, the time the blood was drawn and
secondly, whether the
blood sample belongs to the correct accused.
[17]
Botla was not challenged on this issue. His evidence that he
recorded 17:55 as the time
Dr Naidoo extracted the blood from the
appellant in his pocketbook, was thus uncontested. He also deposed to
an affidavit at the
police station on the evening of 10 September
2019, confirming the time. In addition, he reviewed his
statement and his pocketbook
in preparation of his testimony. We are
accordingly satisfied that Botla’s testimony is thus prima
facie proof of the time
the blood was drawn, and in the absence of
evidence that rebut his recollection of the events on 19 September
2019, becomes conclusive
proof.
[18]
In the face of this prima facie evidence presented by the testimony
of Botla, the only person
who could rebut Botla’s evidence on
the time issue was the appellant. Although no duty rests on an
accused to advance
evidence in rebuttal, there are two legal
principles that directs a court how to deal with the probative value
of the evidence
in such a situation.
[19]
The first principle was confirmed by the Supreme Court of Appeal in
S
v Boesak
[3]
that it is necessary for an accused to ‘
put
his version’
when he or his legal representative cross-examines a particular
witness by challenging each statement that he disputes, otherwise
the
trial court will accept that the relevant statement is not in
dispute. In this case, an attempt was made to create doubt
in
the mind of Botla that he could not be certain about the time the
blood was drawn from the appellant. However, no version
by the
accused was put to Botla about the time the blood of the accused was
allegedly drawn. Beside Dr Naidoo, the appellant
was the only
person who could testify about the time. In the absence of a
version by the appellant in this regard, the lower
court was correct
to conclude that the issue remained unchallenged.
[20]
The second principle obliges an accused to rebut evidence, which
establishes a prima facie case.
This was confirmed by the
Constitutional Court, also in
S
v Boesak
[4]
,
where the court
emphasised that an accused has to rebut evidence particularly in
circumstances where the prima facie evidence proves
the elements of
the alleged crime. In this matter, the evidence before the
lower court relating to the time the blood was
drawn, was not
seriously challenged, save for an unsuccessful attempt to create
uncertainty with regard to the time. The appellant,
as one of only
three persons, was silent on the issue, and failed to present
evidence on the critical issue of the time his blood
was drawn.
[21]
We therefore find that the magistrate did not misdirect herself when
she found that the blood
of the appellant was drawn within the
prescribed time of two hours.
The
chain of custody of the blood sample
[22]
Two of the grounds of appeal relate to the chain of custody.
First, whether the blood was
obtained by a registered medical
practitioner. Tied to this ground is the further consideration
whether the practitioner
made sure that the appellant’s skin
area from where the blood sample was drawn, was properly cleaned,
sterilized, and not
contaminated with an agent that contains
alcohol. Secondly, Botla presented evidence that the seals can
be tampered with
and in the face of that evidence, led by the state,
reasonable doubt exists about the chain of custody of the blood
sample.
Was
Dr Naidoo a registered medical practitioner?
[23]
Botla testified that the doctor was attending to patients on their
arrival at the waiting room.
Botla further stated that he spent
approximately an hour with the appellant in the waiting room and
thereafter a medical practitioner
extracted the blood sample from the
appellant. According to Botla the doctor introduced himself as
Dr Naidoo. It was
not put to Botla that the appellant disputes
that Naidoo was indeed a doctor. Nor did the appellant indicate that
his interaction
with the person of Dr Naidoo left with him the
impression that a doctor was not treating him and was by implication
not a registered
medical practitioner. At no stage was it
conveyed to Botla that the appellant disputed his version of the
events as they
unfolded at the hospital that afternoon. The
principles laid down in
S v Boesak
therefore again operate
against the appellant on this score.
[24]
In the written submissions and
during
argument before us the proposition was advanced that since no
evidence was led by the state whether Dr Naidoo was registered
and
has paid his registration fees
[5]
the state has failed to prove a crucial element of the offence.
It bears mentioning that this issue was never raised in the
lower
court and was advanced for the first time before this court.
[25]
In any event, we are not convinced that the lower court misdirected
itself. The CPA defines
a medical practitioner to mean
any
person registered as such in terms of
the
Medical, Dental and Supplementary Health Service Professions Act
(“the Health Professions Act”)
[6]
.
Section 17 of the Health Professions Act expressly prohibits a person
from performing health services if that person is
not registered in
terms of the act. Sections 39 and 40 of the same act makes it a
criminal offence if someone should profess
to be a registered medical
practitioner, and it is found not to be the case.
[26]
Therefore, considering the testimony of Botla, it is inconceivable
that Dr Naidoo would be allowed
to be at a public hospital creating
the impression that he is a registered medical practitioner, while he
in fact is not.
Botla testified that he went to a hospital and
was requested to wait for a doctor. The doctor later arrived,
and it was Dr
Naidoo. What is more, both Botla and the
appellant was aware that Dr Naidoo had been working on a patient in
another room.
There is thus no doubt that the person that obtained
the blood from the appellant was a medical practitioner as defined.
These are all objective facts from which it can be inferred that Dr
Naidoo was a registered medical practitioner as defined in the
Health
Profession’s Act. As per
S
v Mtsweni
[7]
and
R
v Blom
[8]
our law supports inferences from objective facts from which other
facts, which are sought to be establish, can be inferred.
Considering the objective proven facts, the possibility that Dr
Naidoo was not a registered medical practitioner as defined in
the
relevant act, can safely be excluded.
[27]
Continuing to press this issue the appellant’s counsel relied
on the judgment of
S
v Conradie
[9]
to support a proposition that the failure by the state to call the
doctor or to proof that Dr Naidoo was a registered medical
practitioner was fatal to its case. This is so as it was
important for the doctor to testify about his clinical observations
of the appellant at the time, the blood was drawn.
S
v Conradie
is clearly distinguishable on the facts as evidence in that case was
led by the appellant that the clinical observations by the
doctor on
behalf of the state was at odds with the blood alcohol level as
alleged. Furthermore, in
S
v Conradie
the clinical observations were directly in dispute and evidence was
thus led by the state and the accused on the issue. That
was
not the case in this matter.
S
v Conradie
is thus not support for the proposition that a doctor must testify to
give evidence on the clinical observation of the accused
at the time
the blood is drawn.
No
evidence that the skin was not contaminated
[28]
For the second leg under this ground of appeal strong reliance is
placed on the authority of
S
v Glegg
[10]
for the proposition that the presumption in s 65 (4) of the Traffic
Act does not assist the state. It was argued that according
to
S v Glegg
the presumption does not cover the cleanliness of the skin from where
the blood was taken. Based on this authority, it was
contended
that since the doctor did not testify there is no evidence that the
skin was not contaminated.
[29]
The presumption contained in s 65(4) of the Traffic Act provides for
the following:
“
(4) Where
in any prosecution in terms of this Act proof is tendered of the
analysis of a specimen of the blood of any
person, it shall be
presumed, in the absence of evidence to the contrary, that any
syringe used for obtaining such specimen and
the receptacle in which
such specimen was placed for despatch to an analyst, were free from
any substance or contamination which
could have affected the result
of such analysis.”
[30]
The reliance on
S v
Glegg
is misplaced.
In fact, the judgment rather confirms the approach that the
presumption
[11]
did not place a heavier burden on the state as was already the case.
In addition, the judgment rather confirms that the state
does not
have to proof that the skin was not contaminated. The court in
fact found as follows
[12]
:
“
In
the absence of any admission or evidence that contaminations,
regarding quality and quantity, could affect the percentage alcohol
it is difficult to propose what more the State had to prove in a case
like this that was actually proved”
[31]
Botla was not challenged by the appellant’s legal
representative that the syringe used
was contaminated. In the
circumstances of the facts of this case, where no evidence to the
contrary was advanced, the presumption
finds application in favour of
the state. Furthermore, Botla testified that he handed the
blood sample kit to Dr Naidoo and
that the doctor used what was
provided in the blood sample kit. Botla was present when the blood
sample was extracted from the
appellant. This is thus one of
those situations where his testimony would be sufficient to conclude
that the sample was free
of contamination
[13]
.
[32]
The appellant now seems to speculate on the possible source of
contamination of the blood sample.
This is done in the absence
of any evidence or the reasonable existence of evidence that can
support an inference. The legal
position is trite as
established in
S v
Malan
[14]
and
S v Glegg
[15]
that the possibility of contamination is not reasonable without some
supporting evidence more or less directly related to the possibility
that some substance, which may have been on the accused’s skin,
had contaminated the specimen of blood taken by the doctor.
[33]
Reliance was also placed on
S
v Brumpton
[16]
and
S v Greef
[17]
to drive the point home that it is the duty of the state to prove
that the skin area from where the blood was taken was free from
substance, and the nature of the agent used to clean the skin of the
accused was such that it did not influence the percentage
of the
alcohol in the blood sample analysed. Both these judgments are
distinguishable for the simple reason that in each evidence
was
presented by medical doctors on the possibility of contamination.
Furthermore, neither of these judgments repealed the
position as
established in
S v
Malan
that considering
the presumption in s 65(4) of the Traffic Act the appellant must show
that contamination resulted because of a
particular substance used on
the accused’s body.
[34]
We therefore find that consistent with the evidence before the lower
court there was no misdirection
with regards to whether the skin of
the appellant was contaminated when the blood sample was drawn.
The
chain of custody of the blood sample
[35]
In support of this ground, reliance is placed on various case law to
support the proposition
that the state had to prove the chain
relating to the collection of the blood sample from the SAP 13
register, and the dispatch
and delivery to the laboratory analyst, Mr
Samuels.
[36]
However, this ground is premised on the obscure evidence by Botla
that the seals can apparently
be removed without being broken.
There is no evidence on record that the seals that contained the
blood sample of the appellant
was broken. In fact, such a
proposition was not even put to Botla. Finally, the certificate
by Mr Samuels confirmed
that the seals were intact when he opened the
blood samples for analysis.
[37]
The authority of
S v
Jantjies and another
[18]
is also incontrovertible that if you start with a properly sealed
sample and end with that same sealed sample at the laboratory,
it is
irrelevant where/how; the sample was kept/stored.
[38]
The appellant’s attempt to rebut the evidence of the state
based on some obscure and irrelevant
demonstration under
cross-examination about the possibility of how the seals may possibly
be manipulated amounts to mere theories
or hypothetical suggestions
and not based on some substantial foundation of fact. In
Trust
Bank of Africa Ltd v Senekal
1977
(2) SA 587 (T)
[19]
the principle was confirmed that such an approach will not avail a
litigant and must the answer in response to prima facie evidence
be
based on some substantial foundation of fact. On this aspect,
the prima facie evidence presented by the state was not
rebutted on
any substantial factual foundation.
[39]
We can therefore not find any misdirection by the magistrate on this
aspect of the state’s
case.
The
calibration of the measuring instrument
[40]
This ground of appeal relates to the additional information
(concerning the apparatus that had
been used, its calibration and
accuracy) which is included in the s 212(4) blood analysis
certificate. The appellant contends
that the authority of
S
v Ross
[20]
should apply in this case.
[41]
In the past, the “traditional” 212(4) blood analysis
certificates only provided prima
facie proof of the results obtained
by the analyst. No proof was tendered in the certificate how
the results were obtained,
and no proof was provided concerning the
reliability of the devices used in the analytical process. This
position changed
when a full bench of this Division
[21]
in
S v Van der
Sandt
[22]
held that the State must prove that the measuring instrument gives
the correct measurement. This entails that the accuracy of the
device
be explained and proof provided that it is properly calibrated to
official measurements.”
[23]
[42]
Various judgments
[24]
followed which endorsed the approach adopted in
S
v Van der Sandt.
The
combined effect of these judgments was that: to succeed in a
prosecution for contravening section 65(2)(a) of the Traffic Act
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 had been calibrated.
[43]
However, the judgment of
S
v Ross
[25]
found that the additional information in the s 212(4) certificate
confirming the calibration and accuracy of the gas chromatograph
was
inadmissible evidence. The court was of the view that only an
affidavit in terms of s 212(10) of the CPA could be adduced
as
documentary proof of such fact and held that a s 212(4) certificate
was inadmissible to prove the calibration of the gas chromatograph.
[44]
The aftermath of the
S v Ross
judgment appeared to create
controversy since subsequent judgments in this
division as well as other provincial
and local divisions frequently
relied on
S v Ross
in support of the proposition that evidence
with regard to the calibration of the gas chromatograph should be
presented in the
form of an affidavit, failing which, the evidence is
rendered inadmissible. The appellant in this matter also
elected to
rely on the approach adopted in
S v Ross.
[45]
The existence of
S v
Ross
has therefore
created a degree of uncertainty whether this division is bound to
follow it or not, and has led to conflicting decisions.
This is borne
out by the fact that a full bench of the Eastern Cape Division,
Grahamstown in
S v Eke
2016
[26]
criticised the
approach adopted in
S v
Ross.
The
imperative of consistency in the law was aptly summarised by the
Constitutional Court in
Gcaba
[27]
where the Court said that: “
[P]recedents
must be respected in order to ensure legal certainty and equality
before the law…”
[46]
In a later decision
[28]
,
the Constitutional Court again gave further constitutional imprimatur
to the continued principled application of
stare
decisis
and stated
that:
"The
doctrine of precedent not only binds lower courts but also binds
courts of final jurisdiction to their own decisions.
These courts can
depart from a previous decision of their own only when satisfied that
that decision is clearly wrong. Stare decisis
is therefore not simply
a matter of respect for courts of higher authority. It is a
manifestation of the rule of law itself, which
in turn is a founding
value of our Constitution. To deviate from this rule is to invite
legal chaos."
[47]
The practical effect of the doctrine of precedent is that provincial
and local divisions are
bound by decisions made within their own
territorial areas of jurisdiction, and not by other provincial and
local divisions of
the High Court. However, High Courts are
bound by the decisions of the Supreme Court of Appeal and the
Constitutional Court
[29]
.
By
extension i
nferior
courts,
such as
Magistrate's Courts, have limited jurisdiction and are bound by
decisions of the division of the High Court in a particular
province. If no relevant decision exists as regards a specific
circumstance, and a decision regarding such a circumstance
was made
by a High Court in another province, the magistrate will then follow
that decision.
[48]
Having regard to the above, some definitive pronouncement
[30]
is thus necessary to clarify the legal significance of the continued
reliance on
S v Ross
as a decision of this division. We are of the view that the decision
in
S v Van der Sandt
is the prevailing legal position on the issue in this division. We
accordingly hold that we are not bound by the decision in
S
v Ross
, as it was
clearly wrong for inter alia the following reasons:
(a)
S v Van Der Sandt
[31]
, a judgment of this division, adopted the reasoning that proof of
calibration by means of a section 212(4) certificate would be
adequate if certain requirements are met.
(b)
In
S
v Mouton
[32]
a judgment handed down
during 2010 in this division, the court followed the reasoning in
S
v Van der Sandt
and
held that the additional information (concerning the apparatus that
had been used, its calibration and accuracy) that was included
in the
section 212(4) certificate was sufficient, and an affidavit was not
necessary.
(c)
During 2016 in an
unreported judgment of
S
v Dandara
[33]
Henney J (with Binns-Ward concurring), criticized the decision in
S
v Ross
and rather
relied on a decision in another division, and highlighted the
prominence of
S v
Mouton
on the issue as
to whether the calibration of the gas chromatograph should be proved
by affidavit or certificate.
(d)
Section 212(10) of the CPA
no longer seems operable or has become redundant
[34]
.
The Minister never published prescribed conditions and requirements
in terms of the Trade Metrology Act, 77 of 1973.
The Legal
Metrology Act 9 of 2014 has in any event repealed the Metrology Act
of 1973. This 2014 Metrology Act also provides for
the Minister to
publish regulations, which was done. The published
regulations
[35]
do not seem to contain a provision that prescribes 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
[36]
’.
(e)
The court in
S
v Eke
[37]
,
a different provincial
division, rather followed
Van
Der Sandt
[38]
.
(f)
The court in
S
v Ross
overlooked the
fact, on a mere contextual reading of the entire s 212 of the CPA,
that there was no evidentiary differences between
a certificate in
terms of s 212(4)(a) read with s 212(8)(a) or an affidavit in terms
of s 212(10), if in operation, if regard is
had to s 212(4)(b) and s
212(8)(b)
[39]
of the CPA. These subsections elevates a certificate to equal
status of an affidavit as any false statement in the certificate
will
result in an offence of perjury and be punished on conviction.
A deponent to a false affidavit attracts the same warning.
[49]
For the reasons expounded on above we find that
S v Ross
cannot be relied on as support for the proposition that evidence on
the issue of the calibration of measuring instruments must
be on
affidavit. The legal position in this division is rather as per
the
S v Van der Sandt
and later the
S v Mouton
judgments
.
We are accordingly of the view that the appellant’s reliance on
S v
Ross
cannot be sustained. This ground of appeal
must therefore fail.
Conclusion
[50]
After due consideration of the totality of the evidence we are of the
view that the appellant
was correctly convicted. We cannot find any
misdirection in the magistrate’s factual or legal findings. We
are not convinced
that there is any basis on which to interfere with
the findings by the magistrate. We are satisfied that the guilt of
the appellant
has been established beyond a reasonable doubt. The
appeal against conviction ought to be dismissed.
[51]
In the result, I propose an order in the
following terms:
The
appeal is dismissed.
MONTZINGER, AJ
Acting Judge of the High Court
I
agree and it is so ordered.
GOLIATH, DJP
Deputy
Judge President of the High Court
Appearances:
Appellant’s
counsel:
Adv M Botha
Appellant’s
attorney:
De Vries De Wet & Krouwkam Inc.
Respondent’s
Counsel:
Adv Erasmus
Respondent’s
Attorney:
National Director Public Prosecutions
[1]
s 212
(4)(a) read with s 212(8)(a)
[2]
1997
(2) SACR 641
(SCA) at 645 e – f
[3]
[2000] ZASCA 112
;
2000
(3) SA 381
(SCA) par 50 - 52
[4]
[2000] ZACC 25
;
2001
(1) BCLR 36
(CC) also reported at
[2000] ZACC 25
;
2001 (1) SA 912
(CC) paras 24 –
25
[5]
This
requirement flows from
s
17(3) of the Health Professions Act
[6]
(56 of
1974) This Act underwent a title change and is now known as the
Health Professions Act
[7]
[1984] ZASCA 150
;
[1985]
3 ALL SA 344
(A) 345-346 also reported at
1985 (1) SA 590
(A)
593D-594G
[8]
1939
AD 188
202 -3
[9]
2000
(20 SACR 386 (C)
[10]
1973
(10 SA (A)
[11]
The
presumption at the time was codified in s 140 (20 of Ordinance 21 of
1966 (C). The presumption now in s 65 of the Traffic
Act reads
identical to the presumption contained in the ordinance.
[12]
p 38
paragraph F - G (translated from Afrikaans to English)
[13]
S v
Van Wyk
1977 (1) SA 412
(NK) at 415 A
[14]
1972
(1) PH H (5) confirmed in
S
v Francis
1976 (2) SA 70 (K)
[15]
par
36 B
[16]
1976
(3) SA 236
at 240 F
[17]
1970
(4) SA 704
at 706 B – C
[18]
1993
(20 SACR 475 (A)
[19]
At 593
E - F
[20]
2013
(1) SACR 77 (WCC)
[21]
Under
its previous name
[22]
1997
(2) SACR 116 (W)
[23]
131
[24]
See
also
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.
[25]
2013
(1) SACR 77 (WCC)
[26]
2016
(10) SACR 135 (ECG)
[27]
Gcaba
v Minister for Safety and Security and Others
2010
(1) SA 238
(CC) at par 62.
[28]
Camps
Bay Ratepayers and Residents Association and Another v Harrison and
Another
2011
(4) SA 42
(CC) para 28)
[29]
LAWSA
para 287
[30]
Not
that it has not been done, but this does not explain the continued
reliance on
S
v Ross
[31]
1997
(2) SACR 116 (W)
[32]
case
no A 449/10
[33]
A186/2016
[34]
A
similar concern was raised in
S
v Eke
2016
(10 SACR 135 (ECG)
[35]
GN 877 of 24 August 2018: Legal Metrology Regulations,
2017 (Government Gazette No. 41854)
[36]
The
quoted part being the wording of s 212(10) of the CPA
[37]
2016
(10 SACR 135
(ECG)
[38]
1997
(2) SACR 116 (W)
[39]
Both
sections read:
(
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.