ConCourt overturns Witbank gynaecologist's culpable homicide conviction, but not on merits

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A gynaecologist, who was found guilty of culpable homicide, has had his conviction overturned.
A gynaecologist, who was found guilty of culpable homicide, has had his conviction overturned.
  • A Witbank gynaecologist, who was found guilty of culpable homicide, has had his conviction overturned. 
  • The conviction and sentence were not set aside on merits. 
  • The Constitutional Court says his case should be sent back to Director of Public Prosecutions in Mpumalanga. 

A Witbank obstetrician and gynaecologist, who was found guilty of culpable homicide after he "acted negligently" in the care of his patient, has had his conviction overturned by the Constitutional Court.

However, Dr Danie Van der Walt's conviction was not set aside on merits.

Justice Mbuyiseli Madlanga said the conviction was not set aside on the basis that Van der Walt's guilt was not proved beyond a reasonable doubt.

"It is set aside on the basis that the regional magistrate committed irregularities whose nature was such that the applicant's fair trial right was infringed," he added. 

Van der Walt was convicted in 2016 in the regional court for culpable homicide and sentenced to five years in prison.

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The magistrate found he had acted negligently in the care of his patient, the late Pamela Noni Daweti, after she had given birth, and this negligence had caused her death.

Following his conviction, Van der Walt unsuccessfully appealed to the High Court, however, the Supreme Court of Appeal refused special leave to appeal.

He then approached the Constitutional Court arguing the magistrate had handled his trial in a manner that infringed his rights to a fair trial and his right to adduce and challenge evidence, according to the apex court.

Van der Walt said the regional court magistrate had decided on the admissibility of various pieces of evidence for the first time in the ruling. 

He added in reaching her decision, the magistrate had relied on medical textbooks not referred in the testimony, saying he was not given an opportunity to challenge this.

In his ruling, Madlanga said the irregularities alleged by Van der Walt appeared to be of a nature that in a constitutionally impermissible manner vitiated the fairness of the trial.

He added a conviction under those circumstances could not stand.

"Because the conviction is not set aside on the merits, justice requires that the matter be referred to the Director of Public Prosecutions, Mpumalanga, to decide whether the applicant should be re-arraigned.

"In the event that the applicant is re-arraigned, the ensuing trial must be before a different regional magistrate," Madlanga said.

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