S v VELDTHUIZEN 1982 (3) SA 413 (A)

1982 (3) SA p413

Citation 1982 (3) SA 413 (A)

Court Appellate Division

Judge Diemont JA, Holmes AJA and Botha AJA

Heard March 16, 1982

Judgment March 32, 1982

Annotation Link to Case Annotations

Flynote : Sleutelwoorde
B Criminal procedure - Evidence - Adequacy of proof - Prima facie evidence in s 212 (2) of
Act 51 of 1977 - Meaning of.
Headnote : Kopnota
The words 'prima facie evidence' as used in s 212 (2) of Act 51 of 1977 mean that the
judicial officer will accept the evidence as prima facie proof of the issue and, in the
absence of other credible evidence, that C that prima facie proof will become conclusive
proof. In deciding whether there is credible evidence which casts doubt on the prima
facie evidence adduced the court must be satisfied on the evidence as a whole that the
State has discharged the onus which rests on it of proving the guilt of the accused.
Case Information
Appeal from a decision in the Cape Provincial Division (Vos J and LATEGAN J). The facts
appear from the judgment of DIEMONT JA. D
C H G van der Merwe for the appellant: Toe appellant slegs 'n geringe mate van getuienis
aangebied het wat die uitslag van die toets in twyfel getrek het, het die sertifikaat-
getuienis feitlik waardeloos geword. E Sien R v Gill 1950 (4) SA 199. Die dictum in R v
Chizah 1960 (1) SA te 442 moet beoordeel word na aanleiding van die besondere feite
van daardie saak en die besondere wyse waarop die inligting op 'n geboortesertifikaat
bekom word.
C J van Wyk for the State: Bew B het aan die vereistes van art 212 (4) (a) van Wet 51 van
1977 voldoen. Derhalwe het prima facie bewys van die F bewerings vervat in para 3 van
bew B tot stand gekom by voorlegging daarvan. Op hierdie stadium het 'n
weerleggingslas op appellant oorgegaan. Hy moes daarop getuienis aanbied om aan te
toon dat daar twyfel behoort te bestaan ten opsigte van die feit wat aldus prima
facie bewys is. Kyk Schmidt Bewysreg te 19, 36 - 40, 53 - 54, 104 - 105; Hoffman South
African Law of Evidence 2de uitg te 371 - 373, 392 - 395.
1982 (3) SA p414
DIEMONT JA
Die 'weerleggende' getuienis moet die prima facie bewese feite teenspreek. Kyk R v
Epstein 1951 (1) SA te 285A - C. Dit moet sodanig wees dat dit redelike twyfel ten
opsigte van die prima facie bewese A feite moet wek. R v Chizah 1960 (1) SA te 442E -
G; W v W 1976 (2) SA te 315; Hiemstra Suid-Afrikaanse Strafproses 3de uitg te 448.
Appellant kan nie op R v Gill 1950 (4) SA 199, soos deur hom aangehaal, steun nie,
aangesien daardie uitspraak uitdruklik in R v Chizah (supra te 442D - E) B verwerp is.
Sien ook Hiemstra (supra te 448). Appellant het glad nie daarin geslaag om enige
getuienis ter weerlegging van die prima facie bewese feite vervat in para 3 van bew B
aan te bied nie en die prima facie bewys het ongeskonde gebly. Kyk S v Nkhahale 1981
(1) SA 320.
Van der Merwe in reply.
C Cur adv vult.
Postea (March 29).
Judgment
DIEMONT JA: The appellant in this case was charged in the magistrate's D court in
Hermanus with driving a vehicle while under the influence of liquor. In the alternative he
was charged with contravening s 140 (2) (a) (as amended) of Ord 21 of 1966 (C) in that
he drove a vehicle at a time when the percentage of alcohol in his blood was not less
than 0,08 per cent per one hundred millilitres of blood. The appellant pleaded not guilty
and his attorney made the following statement in terms of s 115 of the Criminal
Procedure Act 51 of 1977: E
'1. The accused admits that he had something to drink, but denies that his faculties were
impaired when he drove the vehicle.
2. He admits that a blood sample was taken but denies the result was a true reflection of his
blood when he drove the vehicle or that it was his blood at all.
3. He admits that he drove the vehicle and that he ignored a stop sign.'
F Six witnesses were called for the State, three of whom testified on a matter which is no
longer in issue, namely whether the blood sample taken for analysis was the blood of the
appellant. I shall refer briefly to the evidence given by the other three State witnesses.
Constable James Allen Such told the court that he was on patrol duty on G 23 March 1980
at 1 am when he observed a vehicle enter the main street. He followed the vehicle and
brought it to a halt. The appellant was the driver; he smelt of liquor, his eyes were
bloodshot, he was unsteady on his feet and he lent against the car. The policeman told
the court that he had eight years' experience in the force and that he had no doubts as
to the appellant's condition. He accordingly arrested the appellant and H took him to the
charge office. He then caused a medical doctor to be summoned, a Dr De Kock, who took
a blood sample and then examined the appellant. The sample was posted to the State
laboratory and in due course a report (exh B) was received which showed the
concentration of alcohol in the blood to be 0,14 per cent.
Pieter Paul Maree, the duty sergeant in the charge office, corroborated Constable Such's
evidence. He saw the appellant at 1 am. He testified that the man's speech was slightly
thick, he smelt of drink and he was a little unsteady on his feet. The sergeant stated that
he had 25
1982 (3) SA p415
DIEMONT JA
years' experience in the police, that he was convinced that appellant was under the
influence of liquor and that he was not in a fit state to drive a motor vehicle.
A Dr De Kock confirmed that he had examined the appellant and taken a sample of his
blood. According to his report (exh C) the appellant was 'slightly under the influence of
alcohol' at the time of the examination and it was 'possible' that he was under the
influence of alcohol at the time of the occurrence.
B The appellant gave evidence and stated that he attended an hotel dance on the
evening of 22 March 1980. He said:
'During the course of the evening, when we arrived there I had a whisky in a tall glass with two
sodas. This was about 7.50 pm. I then had another whisky in a tall glass with two sodas at about 11
pm. I am not allowed over-indulgence and by using the sodas I can let the drink last.
At a later stage I had two beers very quietly - that was at about 12.30 C to 12.35 am. I danced
that night. There was very little time that I didn't dance. I smoke. I am a heavy smoker. My eyes
got very bloodshot affected by the smoke. I have sensitive eyes, that is the reason why I wear
tinted glasses.'
When he was stopped by the policeman and questioned he admitted that he had been
drinking but claimed that he had had only two beers to drink. D He told the doctor the
same story. He said that he had lied because he was 'nervous as hell and scared' and
because he had an important job as manager of a self-help shop. He said further that he
was 'in a position to drive the vehicle... (and) could see properly.'
The second witness called by the defence, Jan Minnaar, was in appellant's company when
he was arrested. His evidence is of no consequence and is not referred to by the
magistrate in his reasons for judgment.
 E The last witness called was Inger Ulrich Strandvik who testified that he was a medical
practitioner in Hermanus and that the appellant was a patient of his; he was a diabetic.
He stated that he had studied the medical report (exh C) and gave his conclusion as
follows: F
'There were only two symptons - red eyes and a fine nystagmus and smell of alcohol which
indicates alcohol. The moderate sign of Romberg is not a definite sympton. With the blood alcohol
contents result of 0,14 one would expect more severe signs at that level. The level of 0,08 would
have most of the signs positive. So a level higher than that with less signs does not fit in. The
clinical signs will fit in with the facts of G two whiskies with four sodas and during course of a dance
and two beers about one hour before.'
Under cross-examination Dr Strandvik made several significant concessions to which I
shall refer later in this judgment.
The trial court came to the conclusion that the appellant should be acquitted on the main
charge but that he was guilty on the first alternative count and accordingly sentenced
him to R100 or 100 days' H imprisonment and a further 100 days' imprisonment
suspended for three years on the usual conditions.
An appeal to the Cape Provincial Division failed but Vos J gave leave to appeal to this
Court.
Mr C H G van der Merwe for the appellant indicated at the outset of his argument that he
would make no submission on the issue which had been investigated at length in the trial
court - whether or not it was the appellant's blood which had been dispatched to the
pathologist
1982 (3) SA p416
DIEMONT JA
for analysis. He stated that his sole submission to this Court would be that the State had
failed to prove that the pathologist's report was A correct. The production of such a
document, he argued, was statutorily admissible as prima facie evidence of the
particulars set forth therein, but the appellant need go no further than to adduce some
evidence which created a doubt as to the accuracy of that document. Evidence, not
proof, was all that was required to counteract the presumption which B operated when a
mere certificate was accorded the force of prima facie evidence. Counsel referred in the
heads of argument inter alia to R v Gill 1950 (4) SA 199 (C) at 201, a case in which
consideration was given by the Court to information contained in birth registry entries
which were statutorily admissible as prima facie evidence. It was held in that case that
such entries served a useful purpose in cases in which their data was not challenged. C
'But the moment they are challenged, their probative value becomes so little as to make them
almost worthless.'
Counsel did not suggest in this case that the pathologist's report was 'almost worthless'
once it was challenged but he argued that this prima D facie evidence was mere paper
evidence - that it was not even attested and that in any event it contained information
peculiarly within the knowledge of the State so that the quantum of evidence to counter
it must be slight.
I find little merit in this argument. The statement which was made in R v Gill was
expressly disapproved of by this Court in R v Chizah 1960 (1) SA 435 (A) E at 442. Nor is
the fact that the document is not attested of any consequence; in terms of s 212
(4) (a) of Act 51 of 1977 a person who has skill in chemistry, anatomy or pathology may
issue a certificate 'in lieu of (an) affidavit'. In so far as the facts contained in the
certificate may be peculiarly within the knowledge of the State, so that F it may be
difficult for an accused person to impugn such facts, it must be remembered that in
terms of s 212 (2) of the Act the court may cause the person who made the certificate to
be subpoenaed to give oral evidence. The appellant at no stage requested the court to
issue such a subpoena so that the pathologist might be cross-examined, nor, for that
matter, did he ask for the district surgeon, Dr De Kock, to be recalled G so that he might
be further questioned after the appellant had given his evidence. The words 'prima
facie evidence' cannot be brushed aside or minimised. As used in this section they mean
that the judicial officer will accept the evidence as prima facie proof of the issue and, in
the absence of other credible evidence, that that prima facie proof H will become
conclusive proof. (Ex parte Minister of Justice: In re R v Jacobson & Levy 1931 AD 466 at
478 and R v Abel 1948 (1) SA 654 (A) at 661.) In deciding whether there is credible
evidence which casts doubt on the prima facie evidence adduced the court must be
 satisfied on the evidence as a whole that the State has discharged the onus which rests
on it of proving the guilt of the appellant.
Appellant's counsel placed great reliance on the evidence of the doctor called by the
defence - Dr Strandvik. But a careful reading of this witness' evidence does not satisfy
me that he had any expert knowledge of the subject in which he had been called to
testify. Indeed,
1982 (3) SA p417
DIEMONT JA
although his counsel claimed in argument that he was an expert witness because he was
a medical doctor, he made no such claim in the witness-box. When asked 'How many
drinks would cause 0,14?' he replied: A
'I want to say that is argumentative, but we were taught about five brandies would be about 0,08
but there are many facts that can influence that.'
He did not say who his teacher was or whether his teacher was an expert. No attempt
was made to qualify Dr Strandvik as an expert witness by B asking him what experience
he had himself had in practice. He conceded that the signs mentioned in Dr De Kock's
report differed from one person to another under the same conditions and when asked,
regard being had to that report, whether it was possible that the blood alcohol content
could have been 0,20 he replied: 'It is possible.'
The cross-examination continued:
'Q So what you previously said is just speculative?
C A Yes I can only say I am surprised - but it is possible.
Q Is it possible that his blood content could have been 0,14 at time of occurrence?
A Yes, it is possible.
Q You are not in a position to say that accused having two whiskies and soda plus two beers
what alcohol content would be?
D A No.'
I may add that not only were Dr Strandvik's views speculative but he was further
handicapped by not having seen the appellant at any time on the night of his arrest. His
deductions were based on the somewhat scanty information in the medical report (exh
A). I do not think I am being E unkind when I say that the evidence given by this witness
was of no value whatsoever.
The appellant's own evidence did not advance the defence case by one iota. He admitted
that he had been drinking; he admitted that he did not tell either the doctor or the police
the truth about the quantity he had F imbibed. His friend who had accompanied him to
the hotel, Jan Minnaar, had drunk four, and possibly more, whiskies at the golf club and
three whiskies followed by the two beers at the hotel. The magistrate wisely paid no
attention to his evidence.
The State, on the other hand, was armed not only with a pathologist's report showing a
blood alcohol percentage of 0,14 but there was also the G evidence of the two
policemen. Constable Such said he arrested the appellant because he had no doubt that
he was under the influence of liquor. Sergeant Maree, who saw the appellant in the
charge office a few minutes after his arrest, corroborated constable Such and said that
the appellant 'was definitief nie bevoeg om 'n motorvoertuig met veiligheid H te bestuur
nie.' In addition to the police evidence there was the medical report stating that the
appellant was at the time of the examination 'lightly under the influence of alcohol'.
There is no merit in the appeal and it must accordingly be dismissed.
HOLMES AJA and BOTHA AJA concurred.
Appellant's Attorneys: Ernst Strauss & Haasbroek, Cape Town; Symington & De Kok,
Bloemfontein.