S v SN 2016 (1) SACR 404 (GP)


Trial — Mental state of accused — Enquiry in terms of s 77 of Criminal Procedure Act 51 of 1977 — Proceedings in terms of s 77(6)(a) — Magistrate failing to order detention in terms of s 77(6)(a)(ii)(aa) after finding accused committed no offence — Application of provisions of section peremptory — Such failure accordingly constituting gross irregularity — Decision set aside on review.


The accused, who had been charged with theft in a magistrates’ court, was referred for observation in terms of s 77(1) of the Criminal Procedure Act 51 of 1977 (CPA). A psychiatric report was subsequently presented to the court which indicated that the accused was not fit to stand trial nor capable of appreciating the wrongfulness of his actions, and recommended that he be admitted as an involuntary patient under ch V of the Mental Health Care Act 17 of 2002. The Director of Public Prosecutions (DPP) accordingly requested that the matter proceed in terms of s 77(6)(a) of the CPA and that the accused be detained in an institution. The court, however, simply released the accused back into society after finding that he could not be linked to any offence. The DPP then requested that the court refer the matter to the High Court on review.

Section 77(6)(a)(ii) (aa) of the CPA provides inter alia that, where the court finds that the accused is not capable of understanding the proceedings so as to make a proper defence, it ‘shall direct that the accused where . . . he has not committed any offence . . . be admitted to and detained in an institution . . . as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002’.

Held, that the provisions of s 77(6)(a)(ii) (aa) were peremptory, even where the court found that an accused had not committed any offence. The failure by the court to apply the provisions accordingly amounted to a gross irregularity which necessitated that the proceedings and order, in terms whereof the accused was released, be set aside.


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