Vonnisbespreking: Die strafregtelike vervolging, skuldigbevinding en kwytskelding van ’n verloskundige en ginekoloog Van der Walt v S [2020] ZACC 19

Abstract

To date, few South African doctors have been found guilty of medical negligence in a criminal court (see e.g. R v Van Schoor 1948 4 SA 349; S v Mkwetshana 1965 2 SA 493 (N)). In the field of gynaecology and obstetrics, the unreported case of S v Nell 1987 TPD (see Strauss 1991:280–1) is relevant. In this case, a general practitioner was found guilty of culpable homicide on the ground of negligence during a birth process for attempting to remove the patient’s placenta without the assistance of an obstetrician. The court a quo’s sentence of five years imprisonment, of which three years were conditionally suspended, was changed by the full bench of the Transvaal Provincial Division (TPD; to which the accused appealed) to a fine of R5 000 or to two years’ imprisonment. In Van der Walt v S 2019-4-11, case no. A13/2018, the High Court dismissed an appeal against the merits and the sentence of the Regional Court and sentenced the gynaecologist-obstetrician to five years imprisonment after he was found guilty of culpable homicide. An appeal to the Supreme Court of Appeal was dismissed, but the Constitutional Court in Van der Walt v S [2020] ZACC 19 allowed the doctor’s appeal against the judgment on the ground of alleged irregularities in the handling of the case in the court a quo. His contention was that his right to a fair trial, as protected in section 35(3)(i) of the Constitution, was violated in that the magistrate pronounced on the admissibility of only certain exhibits during her judgment. She had also relied on medical textbooks in her judgment that were not disclosed during the trial. His appeal against his sentence was moreover based on the fact that it violated section 12(1)(a) of the Constitution. The Constitutional Court subsequently allowed the appeal against the fairness of the trial but dismissed the appeal against the sentence. In order to better contextualise the judgment of the Constitutional Court, the judgment of the High Court requires closer inspection. The High Court judgment detailed the specialist’s negligence towards one of his patients, whose death after giving birth was found to have been caused by severe blood loss not being attended to by the specialist. Both the Regional Court and the High Court (sitting as a court of appeal) found him guilty on a charge of criminal negligence. Regrettably, the Constitutional Court’s focus was limited to the alleged irregularities by the court a quo and not the context in which said irregularities occurred. The Constitutional Court therefore upheld the appeal and directed that the case be referred back to the Director of Public Prosecutions for a decision on whether or not to reinstitute action in a Regional Court in front of another magistrate. As a consequence, the specialist’s sentence fell away following the Constitutional Court’s declaration that the trial in the Regional Court was unfair.