Faku v S [2007] ZAFSHC 132 (22 November 2007)

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[2007] ZAFSHC 132
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Faku v S [2007] ZAFSHC 132 (22 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A251/2006
In the appeal between:
THEMBEKILE ALFRED
FAKU
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MOLEMELA, AJ
_____________________________________________________
JUDGMENT:
RAMPAI, J
HEARD ON:
20 AUGUST 2007
_____________________________________________________
DELIVERED ON:
22 NOVEMBER 2007
_____________________________________________________
[1] The appellant was
charged with culpable homicide. The state alleged that he unlawfully
and negligently caused the death of Nodatini
Seri Qinisa by stabbing
her in Welkom on Friday the 28
th
January 2005. He pleaded not guilty in the Welkom Regional Court on
the 21
st
April 2006. He offered no explanation for his plea.
Notwithstanding his plea, he was found guilty on the 18
th
May 2006. On the same day he was sentenced to seven years
imprisonment. He now comes on appeal against the conviction as well
as
the sentence.
[2] The
version of the state was narrated by three witnesses, namely: Ms M.
C. Motuboli, the appellant’s tenant; Mr. T. S. Matokoane,
a police
inspector and Mr. R. Lekoata, also a police inspector.
[3] Briefly stated the
testimony of Ms Motuboli was as follows: she stayed in the cottage
on the appellant’s property. The appellant
and the victim occupied
the main house. She was their tenant. On Friday the 28
th
January 2005 she was home when the couple arrived from somewhere. At
about 14h00 a fight broke out in the main house between the
appellant
and the victim. She heard the victim saying:
“
Thembinkosi, you are killing me.”
[4] The next day, on
Saturday the 29
th
January 2005 the victim called her, showed her a wound on her back,
made a report to her and asked for relieving medication. The
wound
was still bleeding. She gave the victim two Panado tablets. A day
later on Sunday the 30
th
January 2005 she again gave the victim two more Panado pain-killers.
On both occasions she realised that the victim was having respiratory
problem and that she was in pains. On Monday the 31
st
January 2005 she did not see the victim.
[5] On Tuesday the 1
st
February 2005 she entered the main house at the appellant’s
request. She found the victim dead. She called an ambulance. The
members of the ambulance crew confirmed the victim was dead. Later
the police came and questioned the appellant. Inspector Matokoane
testified that the appellant told him that he and the victim were
fighting on Friday the 28
th
January 2005, that the victim fell on her back onto a garden tool and
sustained injury. The testimony of Inspector Lekoata confirmed
that
of his colleague. Like him he also saw a wound on the victim’s
back but he saw no garden implement in the bedroom where the
fighting
took place. He gathered that the appellant and the victim were
lovers and that they were living together. That then completed
the
prosecution evidence.
[6] The appellant did not
give oral evidence in his defence. He called no witness to testify
on his behalf. He was convicted on
the strength of the aforegoing
oral evidence, his formal admissions, the doctor’s affidavit in
terms of section 212(4) Act No.
51 of 1977, the post-mortem
examination report and other exhibits.
[7] The attack of the
appellant’s conviction is based on two grounds. The first ground
of the attack was that the court below erred
in receiving the
post-mortem examination report together with the doctor’s affidavit
in terms of section 212(4) Act No. 51 of 1977
as admissible evidence
without the oral testimony of the doctor. The second ground of the
attack was that the court below also erred
in finding or ruling as
admissible, the evidence which the appellant contended was
inadmissible hearsay. The first leg of this ground
of attack
concerned the evidence of what the victim pointed out to the first
state witness. The second leg concerned the evidence
of what the
victim told the first state witness.
[8] I
deal with the first ground of the attack first. It is undisputed
that the defence did request that the doctor concerned be
called to
give oral evidence. Notwithstanding such specific request, the
doctor was not called to give oral evidence to explain
the medical
observations he made, the clinical findings he made and the
conclusion he reached.
[9] In the case of
S
v HLONGWA
2002 (2) SACR 37
(T) at paragraph 22 Stegmann J said the following
about a request by the defence to have the doctor called:
¡°
On
the contrary, even where a certificate or affidavit by a doctor
complies in every respect with s 212(4), if there is a request
from
the accused or his representative for the doctor to be called, the
court must exercise its discretion under s 212(12).
When
the request is made by a legal representative, the court should be
inclined to call the doctor
,
unless it is clear that the request is frivolous or that no good
purpose could possibly be served by calling the doctor. On the
other
hand, when the request is made by an unrepresented accused, the court
should enquire whether the accused is prepared to disclose
what it is
that he wishes the doctor to deal with in evidence. If it appears
that the doctor may be able to be of further assistance
in the
matter, and particularly if the court is contemplating using what the
doctor has recorded in the affidavit or certificate
for the purpose
of drawing inferences that have not been spelt out in the affidavit
or certificate by the doctor, the court should,
in terms of s 22(12),
either prepare written interrogatories for the doctor, or have the
doctor called as a witness.”
[10] Almost two decades
before
S
v HLONGWA,
supra
the following was said about the medical reports in, among others,
homicide cases:
¡°
Both
this Court and the High Court have said repeatedly how important it
is, particularly in a case of any seriousness, that the doctor
be
called to amplify and explain the contents of his report and
generally to assist the court in an assessment of the nature and
seriousness of the injuries and the inferences to be drawn from the
presence or absence, as the case may be, of injuries. One knows
that
doctors are busy people but this is no excuse for failing to place
before the court all the relevant evidence; and the viva
voce
evidence of doctors in, for instance, homicide, rape and serious
assault cases is very relevant indeed.
Prosecutors
should regard it as the rule rather than the exception that the
doctor's evidence is necessary, and magistrates should
always have in
mind that it is their right, and indeed duty
,
in any case where they believe that viva voce evidence may be of
assistance
to require the
attendance of the doctor.
”
S
v MELROSE
1985(1) SA 720 (AD) at 724 g – 725 a.
[11] The trial court
discussed the post-mortem examination report and commented as follows
on page 71: 4 - 18:
¡°
The
State has handed in the post mortem report together with an affidavit
from the doctor concerned who conducted the post mortem,
and compiled
a report, it was handed in terms of
Section
212(4)
of the
Criminal Procedure Act 51 of 1977
.
And the requirements of which were complied with. The Court accepts
the evidence as
prima facie
proof of the issue and it has been said that a judicial officer must
accept the evidence as
prima
facie
proof will become
conclusive proof. The post mortem report clearly describes the cause
of death (sic) a stab wound with a sharp
object in the back. The
thorax ventral wound at the back, 5cm deep, 4cm in diameter, it
penetrated the spinal cord. The penetration
was from the back to the
front 5cm deep and caused the collapse of both lungs. This was
obviously a deep wound. The Court accepts
that the cause of death in
the post mortem report has become conclusive proof in the absence of
other evidence, and consistent with
the version of the State.”
[12] The victim was
wounded on Friday the 28
th
January 2005, she died on Tuesday the 1
st
February 2005, approximately four days later. The post-mortem
examination was performed by Dr. W. van Heusden in Welkom on
Wednesday
the 4
th
February 2005. The doctor found 1850ml, in other words approximately
2ℓ, of free blood in the chest cavity where the lungs are
warehoused. The excessive free blood invaded the respiratory space
of the lungs. The invasion created a tension between the lungs
and
the free blood. In the end the lungs drowned in the blood and
collapsed. This is my understanding of the medical evidence.
[13] It would, therefore,
appear that the victim’s internal bleeding was a gradual process.
Her respiratory problem probably started
on Friday the 28
th
January 2005. She was wounded on that day. Ms. Motuboli observed
that she was breathing with difficulty the next day on Saturday
the
29
th
February 2005. The longer she gradually bled, the more free blood
welled up in her chest cavity. The longer the gradual bleeding
continued the worse her respiratory condition gradually deteriorated.
On the fourth day since the bleeding started she could no
longer
breathe. Her two lungs seemingly submerged in blood. Her right lung
was punctured by the sharp object with which she was
stabbed.
[14] The medical question
which arises in these peculiar circumstances is whether the victim’s
life could have been saved through
timeous medical intervention
before the moment of death on Wednesday the 1
st
February 2005. The answer to such a question cannot be ascertained
ex facie
the post-mortem examination report. Had the doctor been called as
the defence had requested, the doctor would probably have amplified
and explained the gravity of the stab wound. He would, probably have
been of assistance to the court by clarifying whether or not
the
stopping of the victim’s internal bleeding and the draining of the
free blood by an intervening surgical procedure would have
averted
the collapse of her lungs or not and whether such surgical
intervention would have saved her from dying or not. In short
the
critical question is, was the stabbing the juridical cause of the
victim’s death?
[15] On behalf of the
appellant it was contended on appeal that if only the doctor had
testified and relevant questions asked he would
have amplified his
written evidence and clarified the chain of events and the critical
legal connection between the wound and the
ultimate death as well as
the difference or impact, if any, prompt intervening surgery would
have made. Whether the appellant’s
stabbing of the victim was a
conditio
sine qua non
of her eventual demise is an issue at the heart of this appeal.
S
v MOKGETHI EN ANDERE
1990
(1) SA 32
(A). At this stage we have to refrain from deciding the
issue on account of inadequate medical evidence.
[16] The court below
appears to have believed that
viva
voce
medical evidence was not necessary to require the attendance of the
doctor. Unless the magistrate sees a broader picture of the
evidence
presented and its shortcomings he or she will obviously not
appreciate whether
viva
voce
evidence will be of any assistance. To obviate this problem two
rules have evolved through case- law. The general rule is that
the
doctor’s oral testimony is always necessary (
S
v MELROSE,
supra).
The
second rule is that when a request is made by a legal representative,
as opposed to the case where it is made by an unrepresented
accused,
the court should readily be inclined to accede to the request (
S
v HLONGWA,
supra)
.
[17] In the instant case
the appellant’s defence lawyer specifically made a request to the
court that the doctor be called to give
viva
voce
evidence. The magistrate did not accede to the request. In my view
the defence request was reasonable regard being had to the
circumstances
of this case. Worse still, no reasons were given by the
court to justify the refusal. Certainly the request was not
frivolous.
The calling of the doctor would probably have served a
useful and good purpose. All this notwithstanding the magistrate
relied on
the doctor’s written medical evidence to convict the
appellant. In my view the court below erred. The irregularity
cannot be
regarded as materially insignificant.
[18] The trial court
initially accepted the doctor’s affidavit together with the
post-mortem examination report, under protest from
the defence, as
prima
facie
proof of the cause of death. Subsequently in its judgment, the trial
court found that such
prima
facie
evidence became conclusive evidentiary proof because the appellant
did not testify. It seems to me that written evidence tendered
in
terms of
section 212(4)
which is
prima
facie
proof, remains just that until it is admitted by the defence or its
attack by the defence fails. In the case of each of these scenarios
the result is the same, namely the
prima
facie
proof becomes conclusive evidentiary proof. In the instant case
there was neither an admission nor a ruling.
[19] The reasonable
request of the defence for the calling of the doctor so that he could
give oral evidence was simply ignored.
The appellant was effectively
denied an opportunity to cross-examine an important prosecution
witness and to debate the medical issues
sensibly during closing
argument. The mere fact that no reasons were given not only as to why
the prosecutor did not call the doctor
but also as to why the
defence’s specific request was turned down justify the contention
that the reception of the doctor’s affidavit
and post-mortem
examination report without the
viva
voce
evidence was irregular. We can only guess as to what favourable or
unfavourable aspects to the defence case that doctor’s oral
evidence would have produced. We can never really know because the
appellant was for no apparent reason denied a fair opportunity
to
establish through cross-examination that the stabbing was not the
juridical cause of the victim’s death and that something else
could
reasonably and possibly have been.
[20] If it is accepted,
and I think we should, that the reception of such written medical
evidence unconfirmed or unsupported by oral
medical evidence was
procedurally irregular, then it stands to reason that there was no
prima
facie
evidence which could have been elevated to conclusive evidentiary
proof as to the real cause of death by the mere silence or failure
of
the appellant as the accused, to testify. It seems to me that even
if the accused had testified the concerns of the defence about
certain difficult aspects of the prosecution case would nonetheless
have still remained. His silence did not erase the procedural
irregularity.
[21] The question which
now falls to be determined is whether the aforesaid irregularity
resulted in failure of justice. And if the
answer is in the
affirmative, what an appropriate relief must be to grant in this
case. In
S
v HLONGWA,
supra
at par 63 Stegmann J said the following about an irregularity:
¡°¡¦
if
the verdict would probably have been different, or if there is
substantial uncertainty whether it would have been the same, the
irregularity has resulted in a failure of justice.”
There the court was
concerned with an irregularity in a matter which came via a review
procedure. Here we are concerned with a case
which came to us on
appeal and not on review. But I can see no reason why the same
fundamental principle should not apply to appeals
as well.
[22] To my mind there is
substantial uncertainty as to whether the verdict would have been the
same had the irregularity not been
committed by failure to call the
doctor and thereby precluding the defence from cross-examining the
doctor. I do not want to labour
the point any further. The doctor
should have been called and the accused afforded an opportunity to
establish his alleged defence
of
actus
novus intervenes
if
he can.
[23] In the light of the
conclusion I have reached as regards the first ground of the attack,
it becomes unnecessary to deal with
the hearsay front of the attack.
We may cross that bridge should we come to it again in the future.
For now we cannot proceed.
We have reached the
cul
de sac.
[24] In my view the
appropriate relief in the circumstances is to set the conviction
aside. But since there is no proper medical
evidence before us we
cannot determine what an appropriate verdict should have been.
Therefore considerations of justice and fairness
to the applicant and
the society which today represents the victim dictate that the case
be remitted to the court below for further
remedial steps. Of course
once the conviction is set aside, the sentence which followed such
conviction must
ipso
facto
also fall away.
[25] Accordingly I make
the following order:
25.1 The conviction and
the sentence are set aside.
25.2 The
case is sent back to the regional court for the hearing of the oral
testimony of Dr. W. van Heusden.
______________
M.H. RAMPAI, J
I
concur.
___________________
M.
B. MOLEMELA, AJ
On behalf of the
appellant: Adv. Van der Merwe
Instructed
by:
The
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Mr. D. W. Bontes
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/em