South Africa High Court, Free State Division, Bloemfontein: A Division Bench of S. Chesiwe and P.E. Molitsoane, JJ. set aside the order of the Magistrate as the proceedings were not in accordance with justice.
This pertinent matter was sent on review by the Acting Senior Magistrate under Section 304(4) of the Criminal Procedure Act, 1977 (CPA) because it was submitted that the Presiding Officer applied the provisions of Section 77(6)(a) of the CPA incorrectly.
Under Section 77(6)(a) if the court which has jurisdiction in terms of Section 75 to try the case, finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court may, if it is of the opinion that it is in the interests of the accused, taking into account the nature of the accused’s incapacity contemplated in sub-section (1), and unless it can be proved on a balance of probabilities that, on the limited evidence available the accused committed the act in question, order that such information or evidence be placed before the court as it deems fit so as to determine whether the accused has committed the act in question.
The facts of the case are that the accused was charged with the offence of assault with intent to cause grievous bodily harm. After he appeared before the Court, he was sent to a 30-day mental evaluation. A panel of Psychiatrists made the following observations: Due to mental illness the accused neither has the ability to understand court proceedings nor to give proper instructions to his defence; the accused was not able to distinguish between right or wrong at the time of the alleged crime; the accused is at risk of repeating a similar offence if left untreated; It is recommended that he receives further care and treatment as a State patient.
In dealing with an enquiry in terms of Section 77(6)(a) the court must first make a finding that the accused is not capable of understanding the proceedings so as to make a proper defence. In this regard, the court may take into account the nature of the incapacity of the accused as contemplated in Section 77(1). If the report compiled under Section 79 is unanimous and uncontested by any of the parties as in this case, the court may determine the matter on the basis of the report without hearing further evidence.
Once the court finds that the accused is not capable of understanding the proceedings so as to mount his defence, the court should then proceed with the second leg of the enquiry, namely, whether on the balance of probabilities the accused committed the act in question. The expression “committed the act in question” was explained in the case of State v. Booi Pedro, 2014 SCC OnLine ZAWCHC 110.
“It has reference to the actus reus element of the offence with which the accused is charged. If the lawmaker had intended the court to enquire into the question whether the accused would probably be convicted of the charged offence if and when he became capable of understanding the proceedings, this would have been said. The use of the words ‘committed the act in question’ points to a more limited enquiry.”
The Acting Senior Magistrate failed to conduct an enquiry and make a finding whether the accused ‘committed the act in question’.
The Act obliges the court upon finding that the accused committed any of the following offences, namely, murder, culpable homicide, rape or compelled rape as contemplated in Sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, or charge involving serious violence or if the court finds it to be in the public interest to order that the accused be detained in a psychiatrist hospital pending the decision of a judge in chambers under Section 47 of the Mental Health Care Act 17 of 2002.
The Court observed that assault with intent to cause grievous bodily harm is not always accompanied by violence. One of the elements of the offence of assault with intent to do grievous bodily harm is proof of ‘intent.’ On the other hand, Section 77(6)(a)(i) envisages a situation where the charge involves, as a matter of fact, serious violence.
Further, the order of the Magistrate detaining the accused at the Grootvlei Correctional Facility or Free State Psychiatrist Hospital in terms of Section 77(6) of the Criminal Procedure Act 51 of 1977 was reviewed and set aside.[State v. Simon Monamotsane, Case No. R264 of 2018, decided on 30-05-2019]