SECTION 77 OF CPA PARTLY UNCONSTITUTIONAL

DE VOS NO AND ANOTHER v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS 2015 (1) SACR 18 (WCC)

Trial — Mental state of accused — Order in terms of s 77(6)(a) of Criminal Procedure Act 51 of 1977 — Where accused who is not able to understand proceedings be held in psychiatric hospital — Constitutionality of provision — Section depriving court of discretion and dictating mandatory outcome, namely incarceration in prison, hospital or mental institution — Legislation having failed, when promulgating Child Justice Act 75 of 2008, to bring provisions of CPA into line with CJA — Section impermissibly infringing rights of children in s 28(1) of Constitution not to be detained, except as last resort — Less restrictive means available to achieve purposes — Provision could not be saved by constitutional limitations clause — Subparagraphs (i) and (ii) declared unconstitutional.

 

Fundamental rights — Enforcement of — Before completion of trial — Application for order of invalidity of statutory provision — Where law threatened constitutional rights, not necessary for applicants to wait until law implemented and accused person detained before approaching court — Rule against dealing with constitutional issues prior to conclusion of proceedings not inflexible one.

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