S v MM 2017 (2) SACR 344 (NWM)
Trial— Mental state of accused — Order in terms of s 47 of Mental Health Care Act 72 of 2002 — Review of — Magistrate not entitled to submit matter on review after making order.
The accused was charged in a magistrates’ court with attempted murder, but when it became apparent to the magistrate that he was not capable of understanding the proceedings, or conduct a defence, he was referred for observation in terms of s 77(1) and (1A) of the Criminal Procedure Act 51 of 1977 (the CPA). The psychiatric report obtained confirmed that he was incapable of understanding court proceedings, unable to contribute meaningfully to his defence, and, at the time of the alleged offence, unable to appreciate the wrongfulness of his deeds or act in accordance with any such appreciation.
The magistrate then referred the matter to the regional court where the magistrate conducted a trial of facts in terms of s 77(6)(a)(i). At the end of the enquiry, the court found that the accused had committed the crime in question, but was unable, at the time of the commission of the offence, to appreciate the wrongfulness of his deeds or act in accordance with such. He was, furthermore, incapable of understanding court proceedings or able to contribute meaningfully to his defence. In such circumstances, an order had to be made in terms of s 77(6)(a)(i) of the CPA, in terms of which he was to be detained in a psychiatric hospital pending a decision of a judge in chambers in terms of s 47 of the Mental Health Care Act 17 of 2002. The magistrate informed the accused of the review process and his right to make written representations to the reviewing judge. The matter was then submitted on special review.
Held, that the order granted was not reviewable at that stage, as it had not been properly referred to a judge in chambers in accordance with s 47 of the Mental Health Care Act: s 77(6)(a)(i) read with s 47(1) did not empower a magistrate to bring an application for the discharge of a state patient at any stage after the order for committal as a state patient had been made (see –).
Held, the magistrate’s explanation to the accused was wrong. He ought to have explained the provisions of s 47 to him, as well as his right to appeal against the order as prescribed in s 77(8)(a)(ii) of the CPA (see ).