ConCourt overturns conviction of jailed gynaecologist

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Obstetrician and gynaecologist Dr Danie van der Walt, found guilty in 2017 of culpable homicide in connection with the death of a patient and controversially sentenced to five years in prison, has had his conviction overturned in a unanimous Constitutional Court ruling, writes MedicalBrief. It may be of scant comfort to Van Der Walt — after the Supreme Court refused to hear his appeal, he spent 10 months in jail before being released under correctional supervision.

The unprecedented prison sentence, as well as refusal of leave to appeal in a landmark case of a doctor on a culpable homicide charge following allegations of professional negligence, caused consternation in the medical profession. At the time, the SA Society of Obstetricians and Gynaecologists “noted with significant concern” the judgment that upheld the sentence of of five years direct imprisonment and said it was a worrying precedent. It called for “urgent sector-wide law reform”  of the issues the incident raised.

The Medical Protection Society (MPS), yesterday (22 June 2020) issued a statement welcoming the Constitutional Court judgment to set aside the conviction and sentence. Dr Graham Howarth, MPS Head of Medical Services – Africa, said that medico-legal defence organisation had previously questioned culpable homicide law and its application in a South African healthcare setting.

“This judgment is a timely reminder that doctors work under considerable pressure, and this pressure is exacerbated for the entire profession whenever a doctor is erroneously charged with culpable homicide.”

He said MPS stood by its members, particularly when their rights had been infringed. “We have supported Dr van der Walt throughout the legal process, including through Health Professions Council of South Africa (HPCSA) proceedings, a civil claim, an inquest, his criminal hearing and subsequent appeals through to the recent Constitutional Court judgement. The matter has now been referred to the Director of Public Prosecutions and we will continue to support Dr van der Walt should the need arise.”

Justice Mbuyiseli Madlanga, with all other justices concurring, set aside the Emalahleni Regional Court’s original verdict against Van Der Walt, finding his rights to a fair trial had been infringed. Madlanga cautioned, however, that the ruling was not based on the merits of the case and referred it back to the provincial DPP to decide whether or not van der Walt should be re-arraigned, an aspect which is probably now moot, since Van Der Walt has served his sentence.

The original sentence was imposed by the High Court, Mpumalanga Division (functioning as the Gauteng Division, Pretoria), sitting at Mbombela on circuit.  That court dismissed an appeal against a judgment and order on conviction and sentence handed down by the eMalahleni (Witbank) Regional Court. Van der Walt then approached the Constitutional Court  directly.

The Citizen reports that Van Der Walt was originally convicted of culpable homicide after a patient died at Life Cosmos Hospital. The then 22-year-old had suffered complications during the birth of her daughter and at trial the state argued her subsequent death was as a result of medical negligence on the part of van der Walt. The court at the time agreed and sentenced him to five years in prison. Van der Walt approached the Constitutional Court after an unsuccessful appeal to the Mpumalanga High Court followed by the Supreme Court of Appeal’s refusal to hear his case.

In court, he argued firstly that his fair trial rights had been violated. In particular, he claimed his right to adduce and challenge evidence had been violated, and secondly that the sentence had been “shockingly inappropriate”. In the first instance, van der Walt took issue with various pieces of the state’s evidence at trial being ruled inadmissible at judgment, the report in The Citizen notes.

Ultimately, Madlanga found the late admission of evidence in this case constituted a serious irregularity. He also found that the magistrate’s use of medical textbooks not referred to in court, to conduct her own research was problematic in that van der Walt had not been able to challenge this evidence.

Van der Walt’s attorney, Rudi Krause, declined to comment save to say that his client had already served his sentence and had been released under correctional supervision after 10 months in prison.


Full report in The Citizen


Full Judgment


See also
Legal ‘jumble’ behind gynaecologist’s 5-year jail sentence


Gynaecologist’s jail sentence for negligence a worrying precedent — SASOG


High Court rejects gynae’s appeal against 5-years’ jail for deadly negligence


Witbank gynae gets 5 years jail for gross neglect

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