The Constitutional Court‘s decision last week to set aside the conviction and sentence of Dr Danie van der Walt, an obstetrician and gynaecologist jailed for medical negligence, is examined by Natasha Naidoo, associate at Norton Rose Fulbright SA.
Readers will recall the 2019 judgment of the High Court (Gauteng Division), which resulted in gynaecologist, Dr Danie van der Walt, being sentenced to 5 years imprisonment for culpable homicide due to the death of his patient, Pamela Daweti. Daweti died from complications due to bleeding after the birth of her baby in 2005. The regional court’s judgment was upheld by the high court on the basis that while the bleeding which arose following the birth of the baby was not caused by van der Walt, Daweti’s death would have been prevented if van der Walt remained at the hospital after she gave birth.
The high court and Supreme Court of Appeal dismissed applications for leave to appeal the judgment and an application was thereafter brought in the Constitutional Court. The Constitutional Court granted van der Walt leave to appeal and set aside the judgment of the high court which has the effect of the conviction and sentence against van der Walt being set aside. The case has been referred to the Director of Public Prosecutions who must decide whether van der Walt should be recharged and the State should re-open its case against him.
Van der Walt, in his application to the Constitutional Court, stated that his rights to a fair trial had been infringed on three grounds.
The first ground upon which this contention was made was that the regional court magistrate made a ruling on the admissibility of evidence for the first time when handing down of the conviction against him. He said that he was unaware of the ambit of the State’s case against him when he took the decision not to testify prior to the conviction being handed down. He had assumed that the evidence brought before the court had been admitted into evidence earlier when it was handed up to the magistrate. He was therefore taken by surprise when the magistrate made an adverse ruling on the admissibility of that evidence only at conviction stage. This, he said, had the effect of some of the evidence which was obtained through cross examination being rejected.
The second ground on which van der Walt claimed that his rights to a fair trial had been infringed was that the magistrate did not rely on the evidence of the expert witnesses called by the State alone but had arrived at a decision based on information obtained from medical textbooks which the expert did not refer to in his evidence. Van der Walt was of the view that this amounted to a contravention of his right to a fair trial because the information contained in the textbooks, which was taken into consideration in arriving at a decision by the magistrate, was not presented as evidence before the court which denied him the opportunity to challenge and refute the evidence.
The third ground which formed the basis of his contention was that he was convicted of culpable homicide in circumstances where causation, being an essential element of culpable homicide, had not been established by the evidence before the court.
With regards to the sentence handed down, van der Walt submitted that doctors play a special role in society by providing access to healthcare services and that doctors convicted of culpable homicide should not be treated as ordinary members of society whose negligent acts cause the death of a person. He submitted further that imprisonment should be imposed only in the most serious cases of negligence and that the degree of negligence must be determined according to the views of the medical profession.
The court stated, with reference to the admissibility of evidence, that if a ruling on the admissibility of evidence which is relevant to the verdict is not give timeously, an accused might not be able to make an informed decision to close their case without adducing evidence or, where the accused elects not to give evidence, to adduce further evidence to refute aspects of evidence.
The State’s case was that the high court took into account the evidence obtained through cross examination in arriving at its decision and that the State proved its case beyond reasonable doubt despite the evidence rejected.
The court held that the ruling concerning the admissibility of the evidence by the magistrate at such a late juncture of the proceedings constituted an irregularity which vitiated the trial in a constitutionally impermissible manner.
With reference to the allegation that the information contained in the medical textbooks which the magistrate took into consideration in arriving at the decision, the court stated that an expert witness is entitled to rely on medical literature if the expert is able to affirm the statements made with reference to that expert’s training and if the information relied on is written by a reliable author who is experienced in the particular field. The court was of the view that the literature provided did not introduce new evidence but merely confirmed the evidence of the expert witness.
The court was faced with deciding whether van der Walt was afforded the opportunity to challenge the evidence, as confirmed by the textbook, and held that van der Walt was denied this opportunity because he was not aware of what evidence was properly before the court.
The court held with regards to the admissibility of evidence and the use of medical textbooks to confirm expert evidence that not all procedural irregularities are sufficiently serious and have the effect of infringing the constitutional right to a fair trial. In ensuring that there is fairness and justice, a criminal court must determine whether the irregularity is sufficiently serious to undermine the concept of fairness and justice. The court was of the view that the fairness of the trial had been impaired.
Of relevance is that the court did not set aside the conviction on the basis that the State had failed to prove beyond reasonable doubt that Van der Walt was guilty, but rather due to the irregularities committed by the magistrate which infringed on Van der Walt’s right to a fair trial. In the circumstances, the sentence handed down had to be set aside too.
The decision of the high court in 2019 gave rise to concerns being raised by those in the practice of obstetrics and gynaecology. Some of the issues raised were that the profession is already under pressure due to the massive rise in medical negligence claims against healthcare professionals specialising in obstetrics and gynaecology and that there is a high risk of medical negligence in this particular area of specialisation, which might occur suddenly and unexpectedly, and which is often not preventable.
A further issue raised is the precedent created by the judgment and the burden it has imposed on the profession itself. There have been calls for the creation of a special tribunal consisting of a panel of experts qualified in the field to preside over medical negligence claims against obstetricians and gynaecologists which will avoid the adversarial nature of court proceedings.
The position is exacerbated by the high risk of medical negligence claims and the rise in costs of professional indemnity insurance payable by obstetricians and gynaecologists. This has resulted in those in private practice leaving to work in state hospitals to avoid personal liability arising from medical negligence claims.
The test for negligence in South African criminal law and civil law is one and the same. The State, in a criminal trial, is required to prove that the negligent act of the accused resulted in the death of a person. An accused may be convicted of culpable homicide once it has been established that the accused acted negligently and thus caused the death. Culpable homicide is the unlawful negligent killing of a human being. The seriousness of the negligence is of no consequence in handing down a conviction of culpable homicide but is a mitigating or aggravating factor to be considered during sentencing.
An accused is negligent if there is a failure to exercise the reasonable skill and care or foresight that a reasonable person in the same situation would exercise. Treatment and surgical procedures administered by those specialising in obstetrics and gynaecology are of a more complex nature which means that the standard of skill and care is raised. The question then arises as to whether the reasonable gynaecologist in the position of the accused would have acted similarly.
The court set aside the conviction and sentence handed down by the lower court by virtue of the fact that procedural irregularities were committed which infringed on van der Walt’s constitutional right to a fair trial. The court made it clear that the conviction was not set aside on the basis that the State failed to prove that van der Walt was guilty beyond reasonable doubt. The case has been referred to the Director of Public Prosecutions to decide whether van der Walt should be charged and tried again.
The judgment is Van der Walt v S  ZACC 19
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