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[2020] ZAWCHC 23
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J.D v S (69/2020) [2020] ZAWCHC 23; 2020 (2) SACR 555 (WCC) (25 March 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Review
No: 69/2020
In
the matter between:
J D
Accused
And
The State
Respondent
JUDGMENT
DELIVERED ON 25 MARCH 2020
BAARTMAN,
J
[1]
The regional magistrate at Parow referred this matter in terms of
section 47 of the Mental Health Care Act, 17 of 2002 (
the Mental
Health Act
).
[2]
The background to the referral is as follows. Mr D was charged with
one count of murder; his legal representative persuaded
the trial
court to enquire into his capacity to understand the proceedings.
[3]
The court received a unanimous report from 3 practitioners indicating
that Mr D ‘suffered from an intellectual disability
and is
certifiable in terms of the Mental Health Act and that he is not fit
to stand trial.’ The defence and the state agreed
with the
finding. The trial court ruled that Mr D was ‘not fit to stand
trial in terms of section 77(1) of the Criminal Procedure
Act, 51 of
1977 (
the CPA
).
[4]
The state
led the evidence of Sergeant September, the investigating officer in
the criminal investigation. It is apparent from his
evidence that a
witness, a relative of the deceased who knew Mr D, witnessed him
shooting the deceased. The defence agreed with
the evidence and
elected to lead no evidence. The post-mortem report, indicating
multiple gunshot wounds as the cause of death,
as well as an
identification statement confirming the deceased’s identity as
indicated in the charge sheet, were handed in
by agreement between
the state and the defence. Mr D was legally represented throughout.
Consequently, the court accepted that
there was evidence indicating
that Mr D had in fact committed the offence
[1]
.
[5]
Valkenberg Hospital was able to admit Mr D immediately, therefore the
court ordered that Mr D be admitted as a State Patient
to that
facility. The order was pending final determination by a judge in
chambers in terms of section 47 of the Act. The section
provides as
follows:
‘
47 Application
for discharge of State patient
(1) Any of the following
persons may apply to a judge in chambers for the discharge of a State
patient:
(a)
The State patient;
(b)
An official curator ad litem;
(c)
An administrator, if appointed;
(d)
The head of the health establishment at which a State patient is
admitted;
(e)
The medical practitioner responsible for administering care,
treatment and rehabilitation services to a State patient;
(f)
A spouse, an associate or next of kin of a State patient; or any
other person authorised to act on behalf of a State patient….
(6) On considering the
application, the judge in chambers may order that the State patient –
(a)
remain a State patient;
(b)
be reclassified and dealt with as a voluntary, assisted or
involuntary mental health care user in terms of Chapter V;
(c)
be discharged unconditionally;
(d)
be discharged conditionally.’
[6]
No application for the patient’s discharge is before me and
this is not a review. Nevertheless, I am persuaded that the
proceedings are substantially in accordance with justice.
[7]
I approached the offices of the Western Cape Director of Public
Prosecutions and the Legal Aid Board at Cape Town, which represented
Mr D in the trial court, and requested an update in respect of Mr D.
The Director of Public Prosecutions secured a medical
note from Dr de
Clercq, a consulting psychiatrist at Valkenberg hospital, from which
the following appears:
‘…
Since his
admission as a State Patient he has been irritable, provocative and
abusive to staff and patients. As a result we have
started him on
certain medication in an attempt to reduce his impulsivity and his
interfering behaviours. Although we have seen
some improvement in the
last few weeks, his limited cognitive reserve and his particular
personality structure will most probably
remain a significant risk
factor for future violence, especially as he was accused of a serious
offence in the context of a long
history of personal impulsive
aggression and gang involvement. Therefore his prognosis is currently
guarded and longer term institutionalization
seems like the safest
diversion strategy in his case.’
[8]
Mr Brand, on behalf of the Legal Aid Board, canvassed the medical
note with Mr D’ family. He reported that Mr D’
mother
reported that she had been to visit him and was very pleased with his
placing and condition. I appreciate the assistance
from the Office of
the Director of Public Prosecutions and the Legal Aid Board.
[9]
The trial court erroneously referred this matter for ‘final
determination’ in terms of section 47 of the Mental
Health Act.
The section deals with an application for discharge of a State
Patient. The trial court did not intend Mr D to discharged.
Nevertheless, in the exercise of this court’s inherent
jurisdiction, I have made the above enquiry.
Conclusion
[10]
There is no
legal basis for sending a matter on automatic review when an accused
person has been declared a State Patient in terms
of the Mental
Health Act
[2]
. However,
there may be specific reasons for sending the matter on review; in
which case, those reasons should be indicated
and the matter sent on
review. If the trial court is satisfied that its decision is in
accordance with justice, the matter should
not be referred for review
[3]
.
[11]
This matter was erroneously referred to the High Court.
_____________________________
BAARTMAN
J
[1]
Section 77 of the CPA.
[2]
S v
Ramokoka
[2006] ZAGPHC 37
;
2006 (2) SACR 57
(W) at paragraph 11 ‘…In other words,
an order made in terms of
s 77(6)
of the
Criminal Procedure Act does
not have the automatic consequence that it is put before a
Judge in Chambers for confirmation…’
[3]
State v
Lucky Msimango
Review Case No. R18/2017, delivered on 18 August 2018, Gauteng
Division, Pretoria.