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Driving under the influence
05 June 2013  | Chris Nel
 
Judgment was delivered on 25 September 2012 in the matter of S v Ross (Case Number A33/12) by Judge Bozalek presiding in the Western Cape High Court, which Court sat as the Court of Appeal. The judgment will have a widespread impact on the way and manner in which the State present evidence on the accuracy and calibration of the measuring instruments used in analysing the blood specimen of persons accused of driving under the influence of alcohol.

The background of the matter can be summarised as follows:

Mr. Ross was convicted in Worcester Magistrate’s Court on 29 July 2011 for contravening Section 65 (2)(a) of the National Road Traffic Act, 93 of 1996 in that he drove a motor vehicle on a public road with an alcohol concentration in his blood of 0.17g per 100ml. He was sentenced to a fine of R2000.00 plus a further fine of R2000.00 or 12 months imprisonment, conditionally suspended for a period of five years. In the state’s case, the state relied on the evidence of the arresting officer, the district surgeon who examined and took a blood sample of Mr. Ross, and on a certificate in terms of Section 212 of the Criminal Procedure Act, 51 of 1977 (“the CPA”)

The Section 212 Certificate stated that the blood sample had been tested by a Forensic Analyst at the Forensic Laboratory of the National Department of Health in Cape Town and that, upon analysis, the relevant blood specimen was found to have a concentration of alcohol of 0.17g per 100ml. The certificate further purported to deal with the accuracy and calibration of the measuring instruments (the gas chromatograph and ion selective meter) used in the blood specimen tests.

The requirements of Section 212 of the CPA:

Section 212 of the CPA provides for the proof of a wide range of facts, primarily within the domain of expert evidence, by way of affidavits or certificates, and which affidavits or certificates would then create prima facie (first impression, accepted as correct until proved otherwise) proof of the contents thereof. The provisions of Section 212 thus in effect lessen the burden of proof of the state relating to forensic questions, as the burden is then placed on the accused to rebut the correctness of the contents of the Section 212 certificate.

Insofar as the calibration and accuracy of the measuring instruments are concerned, Section 212(10) of the CPA provide that, inter alia, an affidavit need to be filed wherein the deponent (normally the Forensic Analyst) need to stipulate that the conditions and requirements relating to measuring instruments, as required by the CPA, have been complied with. Upon said affidavit being filed the accuracy and calibration of the measuring equipment will constitute prima facie proof as to the correctness thereof.

Judgment:

The Court of Appeal found that the evidence in question (The Section 212 certificate filed by the Forensic Analyst regarding the accuracy and calibration of the measuring equipment) was inadmissible since it was not proved by means of an affidavit, oral evidence, nor was it admitted as evidence by agreement, and that the State proffered no explanation as to why it believed that it was entitled to so by means of a certificate, notwithstanding the provisions of Section 212(10) which require the use of an affidavit.

The Court of Appeal thus upheld the Appeal of Mr. Ross and set his conviction and sentence aside.

Practical Implications of judgment:

The practical implications of this judgment is far-reaching as in effect it would mean that, in all matters in which the State managed to secure a conviction of a person accused of driving under the influence of alcohol, and in which matters the State used the Section 212 Certificate to “prove” the accuracy and calibration of the measuring equipment, the convicted person can lodge an appeal to have the conviction and sentence set aside. The procedural requirements for the lodging of an appeal are not dealt with herein but in principle an appeal can be lodged.

In matters where the State still relies on the Section 212 certificate to “prove” the accuracy and calibration of the measuring equipment, it will afford an accused with a defence to the charge of
driving under the influence of alcohol.

The consequences of this judgment will be interesting to follow, and I foresee that a spate of appeals will be lodged in the future as a direct result of this judgment.

Chris Nel
Brink De Beer and Potgieter Inc.