By Duncan Wild on 2 November 2014

This matter involves two cases heard together as they seek similar relief, and concern the fate of persons who, by reason of mental illness or mental defect, are unfit to be tried. The relief sought is an order declaring s 77(6) (a) of the Criminal Procedure Act, 51 of 1977 (“CPA”) to be unconstitutional.  The section provides that where an accused person is found incapable of understanding the proceedings and so unfit to stand trial, when certain conditions are met, the court must order the person be detained in a psychiatric hospital or prison until a judge orders the person’s release. 

The cases involved the applications of Mr Llewellyn Stuurman and Mr Pieter Snyders accused in separate cases of murder and rape respectively. Mr Stuurman was accused of the murder of a 14 year old girl, allegedly commited when he was also 14. During his trial he was submitted for observation in a psychiatric hospital, and the recommendation was that, after a head injury he has suffered when he was 5, he was left with a mental disability that meant he was not capable of understanding the court proceedings.

Mr Snyders was accused of the rape of an 11 year old girl. Mr Snyders had been born with Downs syndrome and had resultant cognitive difficulties. Mr Snyders was also found not to be capable of understanding the nature of the proceedings, and also that at the time of the commission of the crime he did not understand the wrongfulness of the alleged crime and so could not be held criminally liable for it.

The applicants challenged the constitutionality of section 77(6)(a)(i) and (ii) of the CPA on the basis that they infringe or threaten the rights of the accused persons in question, inter alia, to equality (s 9), dignity (s 10), freedom and security of the person (s 12) as well as the rights of children, as contained in s 28(1)(g), read with s 28(2) of the Constitution.

Of these the High Court focused on section 12, section 12(1)(a) of the Constitution provides that “[e]veryone has the right to freedom and security of the person, which includes the right  (a) not to be deprived of freedom arbitrarily or without just cause”.

The key question is whether the provisions of section 77(6) amount to a deprivation that is arbitrary or without just cause.

Section 77(6)(a)(i) applies to a person charged with murder, culpable homicide, rape or compelled rape and subscection (ii) applies where the accused is found to have committed a less serious offence than one of the listed offences contem­plated in sub­para (i) or even where he or she has not committed any offence.

The effect of section 77(6)(a)(i) is that where an accused person is found, by virtue of his or her mental condition to be incapable of under­standing the proceedings so as to make a proper defence; and on a balance of probabilities, to have committed the act of murder, culpable homicide, rape or compelled rape, or an offence in­volving serious violence, then the court is obliged, automatically and in every case, to order that the accused be detained in a psychiatric hospital or prison for an indefinite period until otherwise directed by a judge in chambers in terms of s 47 of theMental Health Care Act 17 of 2002 (“MHCA“).

Under subsection (ii) the court must order that the accused be admitted to and detained in an institution as if he or she were an involuntary mental health care user con­templated in s 37 of the MHCA.

Importantly, the High Court noted the difference in approach between sub-para (ii) of s 77(6)(a) of the CPA, on the one hand, and s 32(b) of the MHCA, on the other, in so far as the requirements for admission are concerned: before a mental health care user is admitted to a health establishment for care, treatment and rehabilitation services without his or her consent on an outpatient or inpatient basis, section 32(b) requires that –

“there is reasonable belief that the mental health care user has a mental illness of such a nature that –
(i) the user is likely to inflict serious harm to himself or herself or others; or
(ii) care, treatment and rehabilitation of the user is necessary for the protection of the financial interests or reputation of the user”.

It is accepted that persons of unsound mind may be detained involuntarily either on the grounds of the protection of society or for the treatment of the individual patient, or both. The High Court therefore accepted that detention of persons with mental defects serves a legitimate purpose.

However, not every person with a mental illness is a danger to society or requires to be detained in an institution. There are varying degrees of mental illness and various types of mental disability, and institution­alisation is not always appropriate. The High Court found though that 77(6)(a) does not require, or even permit, the court to enquire into either the potential danger to society posed by the accused person or the individual needs or circumstances of such person. Once the determination has been made that the accused is unfit to stand trial, the court must order the detention order the person’s detention.

It was also important to the High Court that section 78(6) which applies to the mental capacity of an accused at the time of the commission of the crime i.e. not whether the person is fit to stand trial, but whether the person can be held responsible for their actions given their mental capacity at the time of the act, does provide the court the with a discretion, including to:

(aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002;
(bb) admitted to and detained in an institution stated in the order and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002;
(cc) . . . . . .
(dd) released subject to such conditions as the court considers appropriate; or
(ee) released unconditionally;

The High Court therefore found that the provisions of section 77(6), particularly compared to the provisions 78(6), could lead to infringement of a person’s right to freedom arbitrarily or without just cause, by depriving the court of adequate discretion to consider all the circumstances of the case in coming to an appropriate order.

Moreover, there is also potential for minors to fall within the scope of the provision, and section 28(1) provides that every child has the right not to be detained except as a measure of last resort. Section 77(6) does not allow a court to take this into account when making an order under the provision, and so further is unconstitutional.

As a result the High Court ordered that the provision is unconstitutional, and that the declaration of invalidity be suspended to allow Parliament to remedy the situation, but that in the mean time, the provision should be read so as to allow the court a discretion as it has under section 78(6).

This order is before the Constitutional Court for confirmation.