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[2009] ZAGPJHC 93
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Director of Public Prosecution v Modise and Another (35303/2008) [2009] ZAGPJHC 93; 2012 (1) SACR 553 (GSJ) (26 November 2009)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO: 35303/2008
DATE: 2009-11-26
In the matter between
DIRECTOR OF PUBLIC
PROSECUTION
.........................................
Applicant
and
DITEKO MODISE AND
ANOTHER
...............................................
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
LAMONT, J: This is an application to review decisions made by the
1
st
respondent (hereafter referred to as the Magistrate).
He refused to allow the State the opportunity of leading the
testimony of
expert witnesses. The 2
nd
respondent
(hereafter referred to as the accused) was charged with 13 counts of
crimen injuria. A material allegation which was
required to be
proved was that the accused had sent many short message service (sms
messages) which contained criminally injurious
words. During the
course of the trial the State sought to lead the evidence of one
Miller. He is a Captain in the South African
Police Services
stationed at the High Tech Project Centre Detective Services head
office. He has been employed by the police service
for some 17 and a
half years and has received training in forensic cellphone
examination and analysis.
Cellphone investigation involves the extraction of information from
a cellphone handset and sim cards in a forensic manner. This
examination and extraction of information is conducted with the help
of hardware and software programs on the computer. Once the
information is extracted it cannot be altered from the moment it is
captured onto the system which creates the report.
In the course of the investigation Captain Miller received a variety
of bags containing cellphones. He opened the bags and took
photographs of the cellphones. Once he had taken the photographs he
switched on the phones at the computer using the relevant
hardware so
as to examine them. At the point when he was to deal with this
evidence at the trial there was an objection made on
behalf of the
accused in the following terms:
"I must object, it would appear that this witness is now going
to give expert evidence from stuff he has extracted, data he
has
extracted, I have no certificate in terms of the Act by this witness
where he certifies his information so the evidence he
is going to
give now in my view would be inadmissible".
Record page 461.
Crisply put the objection was that if Section 212(4) of the Criminal
Procedure Act 51 of 1977 (the
Criminal Procedure Act) had
not been
complied with then the witness was not entitled to be called at the
trial to orally give expert evidence as the facts
he found and the
opinions he formed. The ruling made by the Magistrate was that the
witness could not give the evidence as he
had not furnished that
affidavit. His view was that it was compulsory for there to be such
an affidavit as it was of vital importance
for the accused to have
knowledge of the particular facts relied upon as well as the opinions
and reasoning of the expert. That
in his view should all have been
set out in the affidavit. If this was not done the witness was not
entitled orally to give the
evidence.
The reason why the section was required to be complied with in the
view of the magistrate was accordingly to enable the accused
to
prepare himself adequately for trial by in advance knowing and
understanding the evidence which was to be presented at the trial.
The accused would not have a fair trial without the relevant
affidavits having been furnished to him, so the magistrate reasoned.
Similar reasoning was applied to an objection raised in regard to
the proposed evidence of the same witness and one Pillay concerning
electronic data. The State did not provide the document required by
Section 15(4)
of the
Electronic Communications and Transactions Act
25 of 2002
. Applying the same reasoning the witnesses were not
permitted to provide oral evidence of the facts and matters they
discovered
as well as the opinions which they proposed to give.
Section 212(4)
of the
Criminal Procedure Act provides
:
"212(4)(a). Whenever any fact established by any examinational
process requiring any skill:-
in biology, chemistry, physics, astronomy, geography or geology.
in mathematics, applied mathematics or mathematical statistics or in
the analysis of statistics.
in computer science or in any discipline of engineering.
in anatomy or in human behavioural sciences.
in biochemistry, metallurgy, in microscopy, in any branch of
pathology or intoxicology; or
in ballistics in the identification of fingerprints 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
examinational
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 paragraphs shall mutatis
mutandis apply to such certificate.
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".
Section 15
of the
Electronic Communications and Transactions Act no
25 of 2002
provides:
"15. Admissibility and evidential weight of data messages.
In any legal proceedings the rules of evidence must not be applied
so as to deny the admissibility of a data message in evidence
–
on the mere grounds that it is constituted by a data message orif it
is the
best evidence that the person adducing it could reasonably be
expected to obtain on the grounds that it is not in its original
film.
Information in the form of a data message must be given due
evidential weight.
In assessing the evidential weight of a data message regard must be
had to
The reliability of the manner in which the data message was
generated, stored or communicated.
The reliability of the manner in which the integrity of the data
message was maintained.
The manner in which the originator was identified and
Any other relevant factor.
A data message made by a person in the ordinary cause of business or
a copy or printout of or an extract from such data message
certified
to be correct by an officer in the service of such person is on its
mere production in any civil, criminal, administrative
or
disciplinary proceedings under any law the rules of a self
regulatory organisation or any other law or the common law
admissible
in evidence against any person and rebuttable proof of
the facts contained in such record, copy, printout or extract.”
The magistrate appears to have regarded compliance with the sections
in question as being mandatory in that on his view of the
sections
they created expert notice provisions similar to the provisions in
civil litigation requiring litigants to provide opposing
litigants
with expert notices (See for example
Rule 36(9)
High Court Rules)
failing which the expert evidence could not be orally led at trial.
It is this question which must be considered. The starting point of
the enquiry is found in
Section 161
of the
Criminal Procedure Act
which
provides:
"161
A witness at criminal proceedings shall except where this Act or any
other law expressly provides otherwise give his evidence
viva voce.
In this Section the expression viva voce shall in the case of a deaf
and dumb witness be deemed to include gesture language….."
The words of the Section which require emphasis in my view are
"shall, except where this Act…expressly provides
otherwise".
Every witness in terms of
Section 192
of the
Criminal Procedure Act
is
both competent and compellable unless expressly excluded.
Section
192
provides:
"192. Every person not expressly excluded by this Act from
giving evidence shall subject to the provisions of Section 206
be
competent and compellable to give evidence in criminal proceedings".
It is immediately apparent that the
Criminal Procedure Act provides
for witnesses to give evidence orally at trials. The only time
witnesses are not required to give evidence orally at trials is
when
for some particular reason their evidence is either not admissible or
may be given in some alternative manner. The sections
in question
(Section 212
of the
Criminal Procedure Act and
Section 15
of the
Electronic Communications and Transactions Act) in
their terms are
designed to and do allow evidence in the form of the facts and
opinions contained in a document which complies
with the section in
question to be admitted in evidence at a trial notwithstanding that
the person who listed the facts and formed
the opinions in the
document is not called as a witness.
This is the key which unlocks and solves the problem. The documents
are not designed to be expert notices containing information
designed
to inform opposing parties of what the evidence to be led at the
trial is. These sections are specifically designed to
enable the
state to avoid the need to lead the evidence of a witness by way of
producing him and then leading viva voce evidence.
The facts and
mattes in a document are the evidence. The evidence is admissible if
the provisions of this section are complied
with. Nothing more is
required. The section enables the state to easily produce evidence
which will generally be of a formal
and uncontested nature and to
place same in documentary form before a court without the need to
call the witness. The advantage
for the state is immediately
apparent. It does not have to send its experts to a variety of
courts countrywide to give evidence
which generally is uncontested
with the concomitant waste of money and time. In addition the expert
becomes free to perform other
work. These sections allow limited
resources to be properly and adequately used.
The error made by the Magistrate is in characterising the document
contemplated by the sections as a document required to be produced
prior to the witness being allowed to give oral evidence at a trial.
The true nature of the document is that it contains the very
evidence
which is admissible and that it has particular weight even although
no viva voce evidence has been led to establish the
truth of the
facts or opinions under oath.
It does not follow that the mechanisms put in place to enable the
production of evidence create a notice provision which if it
is not
complied with carries the sanction of dissolving the right to call a
witness.
The state has the right to choose the form in which the evidence
is to be given. It is the right of the state to choose to
provide
the evidence either orally or by way of producing the document
contemplated by these sections.
There are other sections in the
Criminal Procedure Act available
to
the defence to assist it to overcome the prejudice it suffers if it
is unable to continue with the trial immediately. Prejudice
is
irrelevant to the interpretation of the sections.
The only remaining issue is whether or not it was permissible for
the state to bring the matter on review at a time prior to the
conclusion of the trial. The court while it has the power to review
administrative action piecemeal generally will not do so.
Only in
exceptional circumstances or where injustice will occur will a
piecemeal review be permitted. See for example Wahl House
v
Additional Magistrate Johannesburg 1959(3) (SA) 113 at 120, Tuesday
Industries (Pty) Ltd v Condor Industries (Pty)Ltd and another
1978(4)
(SA) 379 (T) (at 382D-E), Hlope v Judicial Service Commission and
Others
2009 (4) All SA 67
SGHC.
In my view, there are exceptional circumstances in the present
matter. The principal issue in the trial cannot be decided without
the evidence of Messrs. Miller and Pillay. This being so there is no
sense in directing the matter to continue and thereafter
allowing
appropriate action to be taken. It appears to me that a much more
sensible course is to review the decisions made at
the present time
and allow the trial to follow its normal course thereafter.
In my view, the rulings made by the Magistrate were wrongly made and
ought to be reviewed and the review should be exercised now.
I have
amended the Notice of Motion dated 3 Septembe 2009 in terms which the
state finds agreeable and appropriate in the present
matter and which
I believe to be proper orders in the present matter. I make an order
in terms of paragraphs A, B, C, D and E
of that Notice of Motion as
amended by me.