The court relied heavily on a Section 212 affidavit by Supt Roger Dixon. Through a series of blog posts, we intend to show in great detail that the court should not have accepted nor relied on Dixon’s Section 212 Affidavit as it did not comply with the provisions of Section 212 of the Criminal Procedure Act of 1977 – and that is was therefore inadmissible. By accepting it, the legal process and Court were misdirected and the proper administration of justice was severely compromised. The acceptance thereof can therefore be seen as an ERROR OF LAW – and a question of law in favour of the State.
Regarding a court’s ability to order a retrial when there is a question of law in favour of the State the Supreme Court said in State vs. Wouter Basson (2003) – Case Nr 404/2002 and 293/2002 :
Dit volg dus dat waar `n beskuldigde onskuldig bevind is, soos in die onderhawige geval, en `n voorbehoue regsvraag in die guns van die staat beantwoord word, hierdie hof se bevoegdhede nie gevind word in art 322(1) nie maar wel in art 324 gelees met art 322(4). Daarvolgens het hierdie hof `n diskresie om te gelas dat geregtelike stappe opnuut ingestel word op die oorspronklike aanklagte asof die beskuldigde nie voorheen op die aanklagte tereggestaan het en verhoor is nie, onderhewig daaraan dat geen regter of assessor voor wie die oorspronklike verhoor gedien het aan sulke verrigtinge deelneem nie
It, therefore, follows that where an accused has been found not guilty, as in the present case, and there is a legal question in favour of the state, this court's powers are not found in section 322 (1) but are read in section 324 with section 322 (4). Accordingly, this court has a discretion to order that judicial action be reinstated on the original charges as if the accused had not previously stood trial on the charges and been tried, subject to the fact that no judge or assessor before whom the original trial served do not participate in such proceedings
What is the purpose of a Section 212 affidavit?
Section 212 of the Criminal Procedure Act of 1977 (the ‘Act’) permits certain government employees who, in the course of their normal duties, have applied certain scientific skills in analyzing evidence to present the results of their investigation in a sworn affidavit. Instead of these investigators having to testify in court these Section 212 affidavits can then, during court proceedings, be adduced as prima facie evidence – in other words, the facts/conclusions therein are considered true unless the Defence can prove it otherwise.
In Veldhuizen 1982 (3) SA 413 (A) Judge Diemont clarified the evidentiary weight of a Section 212 affidavit in respect of section 212(4):
"The word `prima facie evidence' cannot be brushed aside or minimized. As used in this section they mean that the judicial officer will accept the evidence as prima facie proof of the issue and, in absence of other credible evidence, that prima facie proof will become conclusive proof." ‑ (416G). (Emphasis added)
In Abel 1990 (2) SACR 367 (C) on 370 Scott J stated: ‑
"In terms of these sections the certificate is prima facie proof of its contents, provided, of course, it complies with the requirements of the sections. It follows that in the absence of other credible evidence, the prima facie proof will become conclusive proof". (Emphasis added)
Section 212 affidavits are commonly used to adduce into evidence the results of blood alcohol analysis, DNA analysis, fingerprint matching, ballistic comparisons etc. When an investigator, for example, conducts a DNA analysis or determines the blood alcohol content of a blood sample he/she does so according to specific laboratory protocols and standard operating procedures (SOPs) – according to well-documented industry standards – using calibrated equipment and quality-controlled processes. One would therefore expect that the same results would be obtained if other scientists were to analyze the same evidence. The purpose of a Section 212 Affidavit is then simply to present those results to the court as factual evidence.
Section 212 of the Act contains a number of statutory provisions (requirements) that must be complied with fully for a Section 212 affidavit to be admissible as prima facie evidence in a South African court. The following case study of Sithole vs. State (2012) – Case Number: A1051/11 clearly demonstrates how important it is that the Section 212 affidavit complies with all aspects of Section 212 of the Act.
Sithole vs. State (2012) – Case Number: A1051/11.
During the criminal trial the accused was found guilty of raping a 14-year old girl and sentenced to 18 years in prison. The State’s case rested on a Section 212 Affidavit, which stated that the accused’s DNA matched the DNA of a child that the victim gave birth to after the rape. During the criminal trial, the Defence challenged the chain of custody of the blood sample that was taken from the accused, claiming that it was “tampered” with. The Defendant’s lawyer, however, was unable to prevent the Court from accepting the Section 212 Affidavit and accepting the contents thereof as prima facie evidence. The sentence was appealed (Sithole vs. State (2012) – Case Number: A1051/11). The Appeals judge found that the Section 212 Affidavit was inadmissible because it contained insufficient evidence to prove the chain of custody.
“3.1 During the course of my official duties on 2010-08-10, I received the case file and thereafter interpreted the DNA results of the crime scene and reference sample pertaining to SASELAMANI CAS 31/09/09 (LAB No 178134/09 ) by process requiring competency in Biology.”
This Paragraph however does not say from whom he received the case file containing the reference sample and the results of the DNA analysis. This is what the judge thought of it:
14. Regarding the receipt of the exhibits at the laboratory, the statement lacks any reference from whom the samples were received. Section 212(8)(a)(ii)(aa) clearly requires that the "person, institute, State department or body" from whom the exhibits were received, has to be specified. The mere reference to a "case file" and "SASELAMANI CAS 3109/09", although it has the appearance of a police docket reference, is in my view insufficient proof of the identity of the entity or person who packed, marked or dispatched the exhibits to the laboratory. The statement, in my view, does therefore not comply with the requirements of the said subsection and does accordingly not constitute prima facie proof in that regard.
This omission was a serious one. It let to the Appeals judge finding the affidavit “irrelevant and inadmissible”. And without the affidavit the State only had the testimony of the victim to rely on, which the appeals judge didn’t find credible. Consequently, the appeal was upheld and the conviction and sentence was set aside.
33. Pertaining to the chain evidence regarding the gathering of the samples and the marking and safekeeping thereof before it was dispatched to the laboratory whilst not dealt with in the Section 212 statement, it follows that the chain evidence regarding those issues was not proved. Accordingly, in view of the lacking of the said linking chain evidence, the section 212 statement in any event became irrelevant and inadmissible evidence. It should therefore have been disregarded by the trial court.
Based on what many may consider a small omission – not identifying the name of the person from which the analyst obtained the evidence – the Appeal court overturned an 18-year sentence and set the defendant free!
As with this case, we will demonstrate that Roger Dixon’s Section 212 affidavit had some serious chain-of-custody issues – that by itself would render his affidavits inadmissible.