The Constitutional Court in Van der Walt v The State set aside a doctor’s criminal conviction for culpable homicide on the basis of irregularities committed by the regional magistrate, which infringed the doctor’s right to a fair trial.
The conviction was not set aside on the merits. Therefore, whether the doctor’s guilt was proved beyond a reasonable doubt was not decided. The matter was referred to the Director of Public Prosecutors to decide whether the doctor should be re-arraigned.
On the appeal in respect of sentence it was argued that a doctor convicted of culpable homicide arising from professional negligence should not be treated like, for example, a driver whose negligent driving resulted in someone’s death. The contention was that doctors play a special role in providing healthcare services, and that in the circumstances a just approach to sentencing requires that a sentence of imprisonment should be imposed only in the most serious cases of negligence, with regard to the views of the medical profession.
In its unanimous judgment the Constitutional Court confirmed the principle that absent any other constitutional issue the question of sentence will generally not be a constitutional matter. The Constitutional Court will not ordinarily entertain an appeal on sentence merely because there was an irregularity, without there being a failure of justice. The court said that the notion that doctors must receive special penal treatment is without basis. The court found no reason for an exception to be made where doctors are found, by competent courts, to be guilty of causing the death of people they are entrusted to care for.
The court considered the analogy with drivers who kill people as a result of negligent driving of cars to be ‘jarring’. The argument was that drivers are deserving of harsher sentences than doctors who kill whilst providing medical care. The court said that the law demands of experts, including doctors, a higher standard of care where the conduct complained of relates to their areas of expertise. The court said: ‘The gut-wrenching truth is that those who die at the hands of doctors who act negligently are terminally denied that all important right, the right to live. For me then, it is a no-brainer which way the scale may tilt’. Therefore the sentence itself did not amount to a failure of justice.
The conviction and sentence were however set aside because the magistrate had only decided on the admissibility of the evidence at conviction stage, when it was too late for the accused doctor to challenge the evidence, thus denying him the right to a fair trial.