REFERRAL OF MENTAL PATIENTS UNDER SECTION 77(6) OF CPA SHOULD BE REFERRED FOR REVIEW

S v MALUKA 2015 (2) SACR 273 (GP)

Trial — Mental state of accused — Enquiry in terms of ss 77, 78, 79 of Criminal Procedure Act 51 of 1977 — Order of detention in terms of s 77(6) pending decision of judge in chambers — No mechanism for review of such order — Potential prejudice requiring mechanism for review — Matter should receive attention of executive and legislature and, pending adoption of suitable mechanism, magistrates should submit matters for review.

In the light of conflicting decisions on whether an order, in terms of s 78(6)(a)(ii)(aa) of the CPA, that an accused person be admitted to an institution to be treated as an involuntary mental health care user, as contemplated by s 37 of the Mental Health Care Act 17 of 2002, should be reviewed by the High Court, the present matter was referred to the full bench of the court for decision.
Held, that the potential for serious prejudice to accused persons in such circumstances made it desirable for some form of automatic review mechanism to be considered. This, however, was a matter for the legislature to consider, and the court should carefully guard against the usurping of the legislative function.
Held, further, that, given that such matters usually required careful consideration, research and extensive consultation, it might take some time before a final position was adopted, and in the interim, and pending that process, and in order to avoid prejudice to those affected, as a matter of good practice, magistrates should refer orders made in terms of s 78(6)(a)(ii)(aa) to the High Court for review.

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