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The use of an s 212(4) statement of the Criminal Procedure Act 51 of 1977 in courts is common, because the facts contained therein are prima facie proof of the content of that document. What does all this mean and what and how is it used, presented, and employed in the day-to-day functioning of our courts?
Section 212(4) reads that:
‘(a) Whenever any fact established by any examination or process requiring any skill –
(i) in biology, chemistry, physics, astronomy, geography or geology;
(ii) in mathematics, applied mathematics or mathematical statistics or in the analysis of statistics;
(iii) in computer science or in any discipline of engineering;
(iv) in anatomy or in human behavioural sciences;
(v) in biochemistry, in metallurgy, in microscopy, in any branch of pathology or in toxicology; or
(vi) in ballistics, in the identification of fingerprints or body-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 any university in the Republic or any other body designated by the Minister for the purposes of this subsection … and that he or she has established such fact by means of such an examination or process, shall, upon its mere production at such proceedings be prima facie proof of such fact’.
It also states that in place of an affidavit, where chemistry, anatomy or pathology are the focus, one may tender a certificate that would carry the same weight as the affidavit.
It becomes apparent that a wide range of disciplines have been included in the section by the legislature. It will also be of note that these fields of expertise are not your everyday professions, and it requires a trained eye in that field to analyse and be able to report on it in order for the layman to understand. The Act refers to a document purported to be an affidavit. The legislature makes it easy for experts to produce their factual findings for the role players in a criminal case to understand these findings. There are, however, certain requirements that had to be met before the factual findings can be accepted by the court. The person must allege that they are in the service of the state and that they have established such fact by an examination or process. It will become prima facie proof by its mere production.
One may ask why not let the authors of the s 212(4) statements come and testify in court about their factual findings? The court in Chetty and Others v S (GP) (unreported case no A268/2015, 26-10-2016) (Senyatsi AJ) at para 24 held that: ‘The intention of the legislature is clearly to ensure that production of evidence of a fact required to be proven by an expert is simplified by the certificate or the J88 form.’ The court in S v Eke 2016 (1) SACR 135 (ECG) at para 6 held that in ordinary circumstances witness are required to give oral evidence under oath unless the law provides otherwise. It goes further and held that s 212(4) is an exception to the rule ‘to both the requirements of witnesses giving oral evidence and giving evidence under oath’. If a prosecutor has in their possession a medical certificate, (s 212(4) statement), which they want to use as proof of the injuries the victim sustained during an assault, how do they proceed to have it admitted? In Eke at para 16 the court held that: ‘In order for a s 212(4) certificate to constitute prima facie proof of a fact stated in it, it must set out the qualifications of the person who made it, describe the process involved, explain why it is reliable [if an instrument was used that need calibration] and give the result’. In Chetty at para 11 – 14, the court elicited the requirements pertaining to an s 212(4) statement. The requirements are:
The court in Chetty at para 15 held that: ‘If the affidavit/certificate complies with the above-mentioned requirements, and if the document (affidavit/certificate) is submitted to court, it shall constitute prima facie proof of the facts thus established.’
The court in Botha v S (ECG) (unreported case no PE277/2015, R332/16, 7-3-2017) (Mageza AJ (Mbenenge J concurred)) at para 9 that s 212(4) ‘provides for the reception of affidavits deposed to and certificates authored by a State official which on production, become prima facie proof of such facts.’ The court in Chetty at para 15 held that the word ‘shall’ ‘indicate[s] that the court is compelled to accept the document and that the facts contained in that document [become] prima facie proof.’ At para 15 the court goes further where it held that: ‘The court has no choice or discretion regarding this type of evidence and no further requirements/qualifications is legally necessary.’
In Eke the court was confronted with an appellant (the accused in the court of first instance) who objected to the s 212(4) statement being admitted. The court at para 34 held that: ‘What then could the appellant have done to rebut the correctness of the result recorded in the certificate? There were, it seems to me, three possible courses open to her. First, she could have applied to the court below to exercise its discretion in terms of s 212(12) to have the analyst subpoenaed to give oral evidence. Secondly, she herself could have subpoenaed the analyst to testify. Thirdly, if she had a factual basis to cast doubt on the accuracy of the result – such as that it could not be accurate because she consumed no alcohol at the time concerned – she herself could have testified or called witnesses.’ From the reading of this dictum, it is clear that a mere objection by the defence to the s 212(4) statement does not give the defence a free pass relating to the content, it still remains prima facie evidence and it is up to the defence to rebut the prima facie evidence. The court in Eke at para 33 held that ‘the mere fact that the appellant placed the correctness of a s 212(4) certificate in issue “is not sufficient to affect the prima facie value of the certificate”’.
In Eke at para 35 the court referred to S v Veldthuizen 1982 (3) SA 413 (A) where it held that the word ‘prima facie evidence’ as used in s 212(4) statements, should not be ‘brushed aside or minimised’ and ‘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 will become conclusive proof.’ In Chetty at para 15 the court held that ‘prima facie proof means that credible proof to the contrary by means of rebutting evidence is still possible’. In the absence of rebuttal of the prima facie evidence, ‘the prima facie proof will become conclusive proof’. It is evident that the prima facie evidence contained in the s 212(4) statement can be challenged by the defence, but in the absence of a successful challenge the court is compelled to accept that the prima facie evidence stands as conclusive proof of the fact it refers to. In Gumede v S (ML) (unreported case no A51/2017, 24-5-2021) (Brauckmann AJ (Legodi JP concurred)) at para 34 the court held that: ‘Prima facie proof, in the absence of rebuttal, therefore, means clear proof, leaving no doubt.’
Section 212(4) refers to the requirements that have to be met in order for the evidence contained in the statement, to be accepted in criminal proceedings. Section 212(8) refers to the line that must be followed from the time the evidence was collected until the time the said statement is produced in court. This line is also referred to as the chain of custody. In Botha the court had to deal with such a case where the defence disputed whether the chain of custody was intact and that no tampering took place from the collection of the evidence until the expert received it for analysis and produced his or her factual findings on it. The court at para 17 held that ‘… it is unnecessary to expect the prosecution to detail precisely who handled the uniquely numbered firearm in the course of it being couriered, conveyed or transported to the offices of the State Official skilled in chemistry, anatomy or pathology referred to in section 212(4) of the Act.’
The creation of the s 212(4) statement was the legislature’s way of assisting criminal procedure by saving state resources in order for an expert to come and testify. Not just its creation but its deployment was enacted to make it effortless and still leave room for the defence to rebut the prima facie proof, but if the defence fails to do so the statement, will stand as conclusive proof before court.
Andrew Jeffrey Swarts LLB (Unisa) is an aspirant prosecutor at the National Prosecuting Authority in Upington.
This article was first published in De Rebus in 2024 (May) DR 26.
