IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No. A33/12

In the matter between:

and

For the Appellant: 	Adv TR Tyler 

As instructed by:	Vreugde Attorneys 
(ref: Ms J Vreugde)

For the Respondent: 	Adv S Raphels
As Instructed by:	n/a

REPORTABLE

THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN

CASE NO:  A33/12
In the matter between:

versus

[1] The appellant was convicted in the Worcester Magistrate's Court on 29 July 2011 of contravening s 65(2)(a) of Act 93 of 1996 in that he drove a motor vehicle on a public road with an alcohol concentration in his blood of 0.17g per l00ml. He was sentenced to a fine of R2000 plus a further fine of R2000 or 12 months imprisonment conditionally suspended for a period of five years.

[2] The appellant pleaded not guilty and was legally represented at the trial. With the leave of the magistrate he now appeals against his conviction.

BACKGROUND

[5] The s 212 certificate stated that the relevant sample had been tested by one Ms Pakama Pati, a Forensic Analyst at the Forensic Chemistry Laboratory of the National Department of Health in Cape Town who held a National Diploma in analytical chemistry from the Cape Peninsula University of Technology. It stated further that upon analysis the relevant blood specimen was found to have a concentration of alcohol therein of 0.17g per 100ml.

[8] On appeal the same argument as was advanced at trial was put up on behalf of the appellant, but counsel also raised a fresh technical point, namely, that the s 212(4) certificate had impermissibly purported to prove incompetent matter i.e. that both the gas chromatograph and the ion selective meter used by Ms Pati for the analysis of the appellant's blood specimen had been properly calibrated. This, it was contended, could only have been proved by way of an affidavit in terms of s 212( 10) of Act 51 of 1977.

[10] Where a fact is sought to be proved by a reading from a measuring instrument, the calibration and accuracy of such instrument is dealt with by s 212(10) which states as follows:
"10
a) The Minister may in respect of any measuring instrument defined in section 1 of the Trade Metrology Act, 1973 (Act 77 of 1973), by notice in the Gazette prescribe the conditions and requirements which shall be complied with before any reading by such measuring instrument may be accepted in criminal proceedings as proof of the fact which it purports to prove, and if the Minister has so prescribed such conditions and requirements and upon proof that such conditions and requirements have been complied with in respect of any particular measuring instrument, the measuring instrument in question shall, for the purposes of proving the fact which it purports to prove, be accepted at criminal proceedings as proving the fact recorded by it, unless the contrary is proved.

b) An affidavit in which the deponent declares that the conditions and requirements referred to in paragraph (a) have been complied with in respect of the measuring instrument in question shall, upon the mere production thereof at the criminal proceedings in question, be prima facie proof that such conditions and requirements have been complied with."

"5.    The concentration of ethanol (hereinafter referred to as 'alcohol') in blood specimens and other fluids of biological origin, is established by using gas chromatography. This blood specimen (CTN-DD00812/2010) was analysed in duplicate using the following method (CT-B-005): 

5.1 The gas chromatographs are calibrated before the specimens are analysed. Calibration is done by using certified alcohol standards of different conditions to obtain a calibration curve.  The certified standards are supplied by the National Metrology Institute of South Africa (NMISA), which is  the custodian of national measuring standards in South Africa.
.......

6.   The concentration of the sodium fluoride in blood specimens and other fluids of biological origin is established by using a fluoride electrode connected to an ion selective meter. This blood specimen (CTN-DD00812/2010) was analysed using the following method (CT-B-006) 
6.1 The ion selective meter is calibrated by using certified reference standards of different concentrations, which are obtained from the National Metrology Institute of South Africa (NMISA). "

"a) There should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial.
b) There should be a prima facie likelihood of the truth of the evidence.
c) The evidence should be materially relevant to the outcome of the trial.

following statement of Holmes JA:
"It is clearly not in the interests of the administration of justice that issues of fact, once judicially investigated and pronounced upon, should lightly be reopened and amplified. And there is always the possibility, such being human frailty, that an accused, having seen where the shoe pinches, might tend to shape evidence to meet the difficulty."

and added that:
"(a)... the study of the reported dec/sions of this Court on the subject over the past 40 years shows that in the vast majority of cases relief has been refused; and that where relief had been granted the evidence in question is related to a single critical issue in the case..." .

[19] It is correct that, in response to the magistrate's question, the appellant's legal representative stated that the s 212 certificate complied with the requirements of the Act. If, however, as transpired was the case, the certificate was inadmissible in relation to its contents concerning the accuracy and calibration of the instruments involved in the blood specimen test, no such concession by the appellant's legal representative could carry any weight since it was based upon a mutual error of law.

[22] In the light of this conclusion it is unnecessary to have regard to the question of whether the apparent result of the blood alcohol test was so at odds with the clinical symptoms observed that the test result could not be accurate. The results of the test have not been properly proved and the question simply does not arise.

[23] For these reasons I would uphold the appeal and set the conviction and sentence aside.

Bozalek, J

I agree.

Olivier, AJ