SECTION 77(6)(a) OF CPA DECLARED UNCONSTITUTIONAL BY CONSTITUTIONAL COURT

In De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others [2015] ZACC 21 the Constitutional Court made the following order:

[69] The following order is made:

1. The declaration of invalidity made by the Western Cape Division of the High Court, Cape Town, on 5 September 2014 is not confirmed.

2. Section 77(6)(a)(i) of the Criminal Procedure Act 51 of 1977 is declared to be inconsistent with the Constitution and invalid to the extent that it provides for:

(a) compulsory imprisonment of an adult accused person; and

(b) compulsory hospitalisation or imprisonment of children.

3. The declaration of invalidity is suspended for a period of 24 months from the date of this judgment in order to allow Parliament to correct the defects in light of this judgment.

4. Section 77(6)(a)(ii) of the Criminal Procedure Act 51 of 1977 is declared to be inconsistent with the Constitution and invalid. From the date of this order section 77(6)(a)(ii) is to read as follows:

“(ii) where the court finds that the accused has committed an offence other than one contemplated in subparagraph (i) or that he or she has not committed any offence—

(aa) be admitted to and detained in an institution stated in the order as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act 17 of 2002;

(bb) be released subject to such conditions as the court considers appropriate; or

(cc) be released unconditionally.”

5. The orders in paragraphs 2 and 4 are not retrospective.

De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others [2015] ZACC 21

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