MENTAL STATE OF ACCUSED – SECTION 77(6)(a)(ii) UNCONSTITUTIONAL

DE VOS NO AND OTHERS v MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS 2015 (2) SACR 217 (CC)

Trial — Mental state of accused — Enquiry in terms of s 77 of Criminal Procedure C Act 51 of 1977 — Whether provisions of s 77(6)(a) peremptory — Use of words ‘shall direct’ in section peremptory.
Trial — Mental state of accused — Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977 — Whether provisions of s 77(6)(a) constitutionally valid — Under legislative scheme as it applied to hospitalisation, only once accused found to have committed serious offence was he admitted to psychiatric hospital, and this precautionary measure rendered provision constitutionally permissible.
Trial — Mental state of accused — Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977 — Whether provisions of s 77(6)(a) constitutionally valid — Different treatment provided for by s 78(6) — Fact that s 78 provided for wider discretion of no moment as provisions dealt with different inquiries and outcomes.
Trial — Mental state of accused — Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977 — Whether provisions of s 77(6)(a) constitutionally valid — Imprisonment in terms of section — Imprisonment only viable as ‘stopgap’ measure if patient were likely to cause serious harm to himself or others — These instances permissible as they served constitutionally mandated purpose of protecting public — Where accused person unlikely to cause severe harm to himself or others, presiding officer should be able to craft appropriate order pending availability of bed in psychiatric hospital akin to s 35(1)(f) of Constitution or discretion in s 79(2)(c) — Safeguards ensuring procedural component of right to freedom not violated.
Trial — Mental state of accused — Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977 — Whether provisions of s 77(6)(a) constitutionally valid — Detention of children in terms of s 77(6)(a)(i) — Section entailing presiding officer had no discretion to deal with child appropriately, and unconstitutional to that extent.
Trial — Mental state of accused — Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977 — Whether provisions of s 77(6)(a) constitutionally valid — Detention in terms of s 77(6)(a)(ii) — Objective of treatment could not on its own justify institutionalisation, as this failed to appreciate mental illness complex and varying types and degrees of mental disability — Trial of facts therefore not providing for appropriate procedural safeguard to deprivation of freedom — Gulf between automatic application of provision and objectives of treatment and safety too wide and breached substantive component of s 12 right.

The High Court held that the provisions of s 77(6)(a)(i) and (ii) of the Criminal Procedure Act 51 of 1977 were peremptory and that a presiding officer was required to institutionalise, imprison or place a mentally ill or an intellectually disabled person in a psychiatric hospital. This infringed such person’s right to freedom and security of the person, as well as children’s rights, and was accordingly unconstitutional. In proceedings for the confirmation of the declaration of invalidity the respondents contended that the impugned provisions were consistent with the Constitution in that they were rational and served a legitimate government purpose. They submitted that a judicial discretion in dealing with mentally ill or intellectually disabled persons who had been found, on a balance of probabilities, to have committed serious offences could put society at risk. The respondents also challenged the finding that the impugned section was peremptory and contended that the words ‘shall direct’ could be read as ‘may direct’.
Held, that the word ‘shall’ was an obligatory word and there was no justification for departing from the ordinary, clear definition of the word, and furthermore there were discrete and specified options available to a presiding officer and, as a result, discretion was precluded. The section was accordingly peremptory.
Held, further, that, under the legislative scheme as it applied to hospitalisation under s 77(6)(a)(i), the accused was properly and extensively evaluated in terms of s 79 of the CPA and, once an accused was found not to understand court proceedings due to a mental illness or an intellectual disability, and a prosecutor requested that he be dealt with in terms of s 77(6)(a), and a I court so directed, then a trial of the facts was undertaken. Only once the accused person was found to have committed a serious offence was he admitted to a psychiatric hospital. This precautionary measure was constitutionally permissible and any admission into a hospital would subsist no longer than was necessary.
Held, further, that the fact that s 78 provided for a wider discretion when dealing J with accused persons, who at the time of the commission of the offence were found not to have had capacity, was of no moment. The distinction made between the options provided for under s 77(6)(a)(i) on the one hand, and s 78(6) on the other, was not irrational. They dealt with different enquiries and different possible outcomes. Section 78 dealt with a person who committed an offence and who, by reason of a mental illness or an intellectual disability, was incapable of appreciating the wrongfulness of the act or of acting in accordance with an appreciation of the wrongfulness of the act. If it were established that at the time of the offence the person did not have the requisite appreciation or ability to act in accordance therewith, the accused had to, for that reason, be found not guilty. It was only then that the several options in s 78(6) became available. Sections 77 and 78 thus served different purposes and that was why s 78(6) provided a wider range of options.
Held, further, that imprisonment was only viable as a ‘stopgap’ measure if the presiding officer were of the opinion that the state patient was likely to cause serious harm to himself or others. These instances were permissible as they served the constitutionally mandated purpose of protecting the public. In instances where the evidence illustrated that the accused person was unlikely to cause severe harm to himself or others, a presiding officer should be able to craft an appropriate order pending the availability of a bed in a psychiatric hospital. This order could be akin to s 35(1)(f) of the Constitution or the discretion in s 79(2)(c). These safeguards would ensure that the procedural component of the right to freedom was not violated.
Held, further, as to the interrelationship of provisions of the Child Justice Act 75 of 2008 with s 77(6)(a)(i), that if a child found himself in a s 77(6)(a)(i) process, then the prescripts of that provision applied and the presiding officer had no discretion to deal with the child appropriately. The trial of facts might reveal that the child did nothing at all or might reveal other important information that the presiding officer would be unable to take into account. Therefore detention, which had to follow, deprived courts of a discretion to deal appropriately with children who fell within the ambit of the impugned section. Therefore, to the extent that s 77(6)(a)(i) applied to children, it was unconstitutional.
Held, further, as to the provisions of s 77(6)(a)(ii), that the objective of treatment could not on its own justify institutionalisation, as this failed to appreciate that mental illness was complex, and there were varying types and degrees of mental disability such that institutionalisation and treatment were not always required or appropriate. Some intellectual disabilitiescould not be treated and institutionalisation or treatment never improved such cognitive conditions. The trial of the facts therefore did not provide for an appropriate procedural safeguard accompanying the deprivation, as deprivation in terms of the section happened regardless of the outcome, and the provision therefore breached the procedural component of the right. Furthermore, the gulf between the automatic application of the provision and the objectives of treatment and safety was too wide and one could not conclude that the objective behind the detention met the purpose proffered. Section 77(6)(a)(ii) therefore also breached the substantive component of the s 12 right and was constitutionally invalid. The court ordered accordingly.

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