In this post we will show that Dixon’s Section 212 affidavit was not adduced correctly by the defence and that the court did not go through the correct process to have it accepted as such.
The information presented in this post was obtained in part from an independent legal opinion we obtained on Dixon’s affidavit from a leading South African expert in Section 212 of the Act, and in part from this document – THE PROBATIVE VALUE OF A STATEMENT MADE IN TERMS OF SECTION 212(4) OF THE CRIMINAL PROCEDURE ACT, 1977 (ACT 51 OF 1977).
Although in most cases a Section 212 affidavit is adduced by the prosecution – but it can be adduced by any party (prosecution or defence). It is immaterial who adduces the document. The legal effect of the Section 212 affidavit does not alter depending on who adduces it.
Furthermore, the prosecution and defence cannot AGREE to submit an otherwise inadmissible document to the court. Their “agreement” to do so cannot legalize such document and the court is obliged to refuse to accept an inadmissible Section 212 affidavit notwithstanding an ” agreement” by the parties.
There is a very specific process to be followed to have a Section 212 affidavit adduced as evidence in court:
- Inform the court that a Section 212 affidavit is going to be adduced into evidence
- Read the contents of the document into the record of proceedings – unless the other party is already in possession of a copy
- Make a submission to the court that the affidavit complies with all the requirements of Section 212
- The court must make a ruling on the admissibility of the Section 212 affidavit
The Defence, in this case, did not refer to Dixon’s affidavit as a Section 212 affidavit- they simply referred to it as a report. As such they did not inform the court that they were submitting a Section 212 affidavit – nor did they not make a submission that the report complied with the requirements of Section 212.
[Translated] The State has now, after Mr Wertheim’s report was handed to the State, conceded that the fingerprint is not from a DVD holder, but from a glass alleged by my experts from the onset. In this regard I attach a letter from the Director of Public prosecutions dated 13 December 2006 (FVDV2). Attached to the letter is a report ('verslag') by Senior Superintendent Dixon from the SAPS dated 12 December 2006 that came to the same conclusion as my experts. It is attachment 3. I have been advised that the concession by the State does not prevent by legal advisors to still deal with the fingerprint issue during the trial. It is indeed my case that the evidence around the fingerprint was fabricated and fraudulent. Therefore respectfully, on my behalf it will be put forward that the fingerprint evidence taints the State case against me. [Page 27 Lines 21 to 25 and Page 28 Lines 1 to 15]
As soon as possible the court is obliged to make a ruling on the admissibility of evidence (including Section 212 affidavits).
According to Ramavhale 1996 (1) SACR 639 (A) at 651 :
“ If at the stage when this evidence was given the judge thought that it was going to be important….he should have raised the question of admissibility: or, if not then, then at a sufficiently early stage. It is the duty of a trial judge to keep inadmissible evidence out… The frequent practice of admitting evidence provisionally, …..often works most, unfortunately. Instead of forcing practitioners to prove relevant facts by admissible evidence it may allow them to range around vaguely, which is not good for the administration of justice or anybody, ..”
In this case, the judge did not rule on the admissibility of Dixon’s Section 212 affidavit. He just accepted it as such – and, as we will demonstrate in a separate post, this inadmissible affidavit became crucial to the outcome of the case.