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[2013] ZAGPJHC 289
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S v Luphuwana (DH 10/07) [2013] ZAGPJHC 289; 2014 (1) SACR 503 (GJ) (6 November 2013)
REPORTABLE
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG LOCAL
DIVISION
JOHANNESBURG
Ref No: 109/13
Mag. Serial No:
3/13
Case No: DH
10/07
06 NOVEMBER 2013
In
the matter between:
THE STATE
and
MBIJANA
LUPHUWANA
..............................................
Accused
REVIEW JUDGMENT
COPPIN, J:
[1] This matter was sent
for review to this Court by the Additional Magistrate, Roodepoort.
The magistrate made an order in terms
of section 78(6)(ii)(aa) of the
Criminal Procedure Act 51 of 1977 (“
the Act
”) and,
enclosing the record, requested that the said order be confirmed by
this court.
[2] It appears from the
record that the accused, a man of about 34 years, was charged with
assault and threats of violence in terms
of the
Domestic Violence
Act, 116 of 1998
, in respect of a family member. After being arrested
on the strength of a warrant, the accused, who was legally
represented, was
brought before the magistrate on the 11
th
January 2013. The charges were never put to the accused and he was
never asked to plead. The prosecutor informed the court that
the
accused’s mother had told him that the accused was not well
mentally, and requested that the court proceed in terms of
section
78(2) of the Act and hold an enquiry into the mental state of the
accused. The accused’s representative did not object
and
magistrate allowed the prosecutor to call the accused’s mother
who gave evidence that the accused had a mental problem
which caused
him to act aggressively. She testified that he was her eldest son;
that he took drugs, such as dagga and mandrax;
that he had been
admitted to Sterkfontein Hospital previously and that she had brought
charges against him before. She testified
that she would like him to
go to hospital for treatment. The accused’s legal
representative did not cross- examine the accused’s
mother and
the state indicated that it was closing its case.
[3] The magistrate
informed the State that the mother’s evidence was sufficient
and proceeded to make a finding in terms
of s78(2) of the Act that
“
it appears to the court that due to mental illness or
mental defect the accused may not be responsible
” and
directed that the matter be enquired into as contemplated in section
78(2), read with section 79, of the Act. The accused
appears to have
complained to the magistrate about his arrest. The magistrate assured
the accused that they were trying to help
him, postponed the matter
to the 14
th
January 2013 and ordered that the accused
remain in custody.
[4] After several
postponements the accused was eventually admitted to a facility for
observation. A joint, unanimous, psychiatric
report, by the State
psychiatrist and a psychiatrist representing the accused, was
submitted. In the report the medical specialists,
inter alia
,
state their diagnosis of the accused’s condition, namely,
cannabis induced psychotic disorder, but also note that it was
in
remission. They also state that at the time of the alleged offence
the accused was unable to appreciate the wrongfulness of
his actions
and act in accordance with such appreciation. They recommend that
the accused be made an involuntary mental health
care user as
contemplated in the
Mental Health Care Act, 17 of 2002
, in order to
allow for his treatment, care and rehabilitation. Their report is
dated the 28
th
May 2013.
[5] It appears from the
record that on or about the 26
th
June 2013 the Director of
Public Prosecutions informed the Senior Public Prosecutor in the
Roodepoort Magistrate’s Court
of the opinion of the
psychiatrists and further directed,
inter alia
, that:
“
It ought to be
recommended to the court that it proceed in terms of section
78(6)(a)(ii)(aa) of the Act and make an order that the
accused be
admitted to and detained in an institution stated in the Act and
treated as if he was an involuntary mental health care
user
contemplated in section 37 (read with
sections 32
and
33
) of the
Mental Health Care Act, 2002
.”
[6] On 27 June 2013 the
hearing resumed. The purpose was to receive the psychiatric report
and consider the matter in the light
of the decision of the Director
of Public Prosecutions (‘DPP’). The record indicates that
the accused had legal representation
on this occasion. The prosecutor
informed the court of the recommendation of the DPP and indicated
that the investigating officer
was present to testify ‘about
whether the accused committed an offence or not’. The court
allowed the investigating
officer to testify. Her evidence was
essentially hearsay. The investigating officer testified, inter alia,
that an assault charge
had been laid and that, according to the
accused mother’s statement, the accused was threatening to kill
her and his younger
brother.
[7] The officer testified
that she had not seen the report of the psychiatrists, but the
prosecutor, nevertheless, put their recommendation
to her and asked
whether the investigating officer was there to take the accused to
hospital. The officer testified that a case
of domestic violence was
opened against the accused before his arrest and that a protection
order was granted. The officer further
testified concerning the
incident that led to the accused’s arrest. She testified that
on 30 December 2006 the accused threatened
to kill his mother and
younger brother; that the accused also threw stones at the younger
brother and ‘apparently’
assaulted the mother, but that
the mother was not injured, because she was taken to a place of
safety as she was afraid of the
accused. The officer was finally
asked by the prosecutor whether she was satisfied that the accused
committed the offence that
led to his arrest and the officer answered
in the affirmative. The legal representative of the accused did not
object to the evidence
that was led and did not cross-examine the
investigating officer. The record shows that the State again closed
its case and that
the defence case was also closed.
.
[8] The prosecutor
requested the court to proceed in terms of
s78(6)
, as recommended by
the DPP, and that the accused be referred to Sterkfontein Hospital
for treatment as an involuntary mental health
care user. The
accused’s legal representative indicated that he supported the
State’s application. The magistrate then
proceeded to give
judgment, in which findings are made that are also repeated in the
written order which he wants the reviewing
court to confirm. The
order, which appears to be a standard form, is addressed to the
Sterkfontein Hospital and it is titled:
“
Order in terms
of
section 78(6)(ii)(aa)
of the
Criminal Procedure Act 51 of 1977
.
[Accused unable to appreciate wrongfulness and unable to act in
accordance with such appreciation of wrongfulness.]
”
The relevant part of the
order reads as follows:
“
WHEREAS the
court found that
Mbijana Luphuwana
(insert name of
patient)
who is awaiting trial
on a charge of contravening
section 17(a)
read with
sections 1
,
5
,
6
,
7
and
17
of the
Domestic Violence Act 116 of 1998
[x]Committed an
offence other than one contemplated in
section 76(6)(i)
of the
Criminal Procedure Act 51 of 1977
.
Is unable to
appreciate the wrongfulness of his actions and unable to act in
accordance with such an appreciation of wrongfulness
and was at the
time of the commission of the offence by reason of mental illness or
intellectual disability not criminally responsible
for such act.
Therefore a court
order is hereby granted to admit and detain the said
Mbijana Luphuwana
(insert name of
patient)
as if he was an
involuntary mental health care user in terms of
Section 37
of the
Mental Health Care Act No 17 of 2002
until a further lawful order is
given for his disposal.
”
The order is dated the
27
th
June 2013.
[9] Section 78(1) of the
Act provides:
“
A person who
commits an act or makes an omission which constitutes an offence and
who at the time of such commission or omission
suffers from a mental
illness or mental defect which makes him or her incapable – (a)
of appreciating the wrongfulness of
his or her act or omission; or
(b) of acting in accordance with an appreciation of the wrongfulness
of his or her act or omission,
shall not be criminally responsible
for such act or omission.
”
[10] Section
78(6)(a)(ii)(aa) provides:
“
If the court
finds that the accused committed the act in question and that he or
she at the time of such commission was by reason
of mental illness or
intellectual disability not criminally responsible for such act –
(a) the court shall find the accused
not guilty by reason of mental
illness or intellectual disability, as the case may be, and direct
(ii) in any other case than a
case contemplated in subparagraph (i),
that the accused –
be admitted to and
detained in an institution stated in the order and treated as if he
or she or an involuntary mental health
care user contemplated in
section 37
of the
Mental Health Care Act, 2002
.
”
[11] It is apparent from
a reading of the magistrate’s order, which I have referred to
above, that there has not been compliance
with section 78(6)(a) of
the Act. More particularly, the magistrate did not find the accused
‘not guilty’, as is contemplated
in and required by that
section. Accordingly, this Court brought the matter to the attention
of the magistrate and requested the
magistrate to furnish reasons, if
any, why the order should not be set aside and the matter remitted
back to the Magistrate’s
Court for compliance with section
78(6)(a).
[12] In response to the
request of this Court, the magistrate furnished a memorandum. In it
reference is made to case authority
dealing,
inter alia
, with
the situation where an accused is held to be unfit to plead. The
magistrate, in an effort to justify the order that was made,
inter
alia,
states the following:
“
I must agree
that the use of the word ‘shall’ in section 78(6) of the
Act, makes the application of the provisions peremptory.
However, in
all the decided cases referred to above, the ‘accused’
pleaded to the charge, and in the case in point,
there was no plea
taken from the accused. Prior to the charge being put to the
accused, and after having received the joint psychiatric
report,
marked ‘A’, and the prosecution acting upon the
instructions of the Director of Public Prosecutions, the said
order
was made.
I am of the view, that
the legislature’s clear intention, was to cater for and/or
provide for the situation where a plea was
recorded or where the
accused was convicted of the offence charged but before sentence was
passed and then, in that event, to set
aside the conviction and find
the accused not guilty.
The Honourable Judge
is referred to section 106(4) of Act 51 of 1977, which is set out
hereunder for ease of reference.
‘
An accused who
pleads to a charge, other than a plea that the court has no
jurisdiction to try the offence, or an accused on behalf
of whom a
plea of not guilty is entered by the court (see section 109), shall,
save as is otherwise expressly provided by this
Act or any other law,
be entitled to demand that he be acquitted or be convicted.’
Again my argument is
highlighted that there was no plea tendered by the accused and he is
not entitled to demand an acquittal.
Nonetheless, despite
the arguments, submissions and case law set out above, I will abide
by the decision of the Honourable Justices.
”
[13] I should state at
the outset that the cases, which the learned magistrate referred to
in the memorandum, do not address the
issue which had been brought to
his attention. They are clearly distinguishable. The Office of the
Deputy Director of Public Prosecutions
(South Gauteng)(‘DDPP’)
was requested to provide an opinion on the matter. In this opinion
the following view is expressed
by the DDPP:
“
It is
respectfully submitted that the order made by the court a quo be set
aside and that the matter be remitted to the Magistrate’s
Court. The accused must be asked to plead on the charge and the
witness will have to testify again. Thereafter the magistrate can
find the accused not guilty by reason of mental illness as
contemplated in section 78(6)(a) or (b) of the Mental Health Act 17
of 2002 and issue an order in terms of section 77(6)(a)(ii)(aa) of
Act 51 of 1977 for the accused to be admitted and detained at
Sterkfontein Hospital as an involuntary mental care health user in
terms of section 37 (read with sections 32 and 33) of the Mental
Health Act 17 of 2002.
”
[14] It is apparent from
the record that the charges were never put to the accused and that he
was never called upon to plead.
What is more disturbing is that the
magistrate nevertheless allowed the state to adduce evidence,
including evidence that the
accused did commit the offence, which he
was charged with, then found that the accused had committed the
offence, but was unable
to appreciate the wrongfulness of his actions
and act in accordance with such appreciation due to mental illness,
or intellectual
disability, and that he was, therefore, not
criminally responsible.
[15] The question that
arises for decision is whether the magistrate was correct in
proceeding as he did, by not requiring the
accused to plead; by
allowing evidence, including inadmissible evidence, to be produced to
prove the commission, by the accused,
of the act(s) he was charged
with; by finding that the accused committed the act(s) charged with;
and by not finding the accused
‘not guilty’ as required
by s 78(6) of the Act?
[16] There is nothing on
the record to suggest that, at the time when the accused appeared
before the magistrate, he was not capable
of understanding the
proceedings, or that he was unfit to plead (i.e. not capable of
understanding the proceedings so as to make
a proper defence). On
11January 2013, before charges were put and before the accused could
plead and in response to an application
by the State, the magistrate
noted that it appears as if though the accused suffered from a mental
illness, or defect and directed
that the matter be enquired into and
reported on in accordance with the provisions of section 79 of the
Act.
[17]
Section 78 does not regulate, or lay down the procedure for pleading
to a charge. It does, however, state when and in what
circumstances a
magistrate may find that the accused, even though he committed the
act in question, is not criminally responsible
for the act, because
of mental illness, or intellectual disability. If the persons who
did the s 79 enquiry into the question
posed by the magistrate,
submitted an unanimous finding to that effect and the finding is not
disputed by the prosecutor, or the
accused, the court may determine
the question of whether the accused was capable of appreciating the
wrongfulness of his conduct
and to conduct himself in accordance with
such an appreciation, i.e. whether he is criminally responsible for
such act or omission,
on the basis of such report without hearing
further evidence. If the finding is not unanimous, or if it is
disputed by the prosecutor,
or by the accused, the court will have to
hear evidence on the question and determine the matter on the basis
of such evidence
1
.
However, s78 does not provide that, in respect of an accused who has
not pleaded to a charge, the court may, dispense with the
requirement
that the charge must be put to an accused, proceed to hear evidence
on the merits of the charge and conclude that the
accused committed
the act or omission in question, but find, on the basis of the
psychiatric report that he is not criminally responsible
for the
conduct he was charged with.
[18] Section 78(6) of
the Act clearly assumes that, in respect of an accused who has the
requisite capacity to understand the proceedings
so as to make a
proper defence, the charge, detailing the act or omission of the
accused, had been put to the accused and that
he had pleaded to it.
It also assumes that the finding, that the accused committed the act,
or omission, in question, would be
based on admissible evidence.
Unless that has occurred, evidence, in support of the charge, cannot
be led and the accused cannot,
lawfully, be found to have committed
the act, or omission. Where the procedures laid down in the Act and
in the law relating, particularly,
to the putting of the charge, the
pleading to it and to the production of evidence) have not been
complied with, the accused cannot,
lawfully, be found not guilty by
reason of mental illness, or intellectual disability. Before a court,
applying s 78(6) of the
Act, may find that an accused has committed
the act, or omission, in question, but is not guilty due to mental
illness, or intellectual
defect, the accused must have pleaded to a
charge that was put to him, and the finding must be based on
admissible evidence that
establishes his commission of the act, or
omission, in question, beyond a reasonable doubt.
[19]
Unless charges are put to the accused and he (or she) pleads thereto
no
lis
is established between the accused and the State
2
.
Section 105 of the Act is peremptory. It requires that the charge be
put to an accused person to enable him, or her, to plead
thereto.
That section further requires that once the charge has been put, the
accused shall, subject to sections 77, 85 and 105A
(all of which are
not relevant for present purposes), be required by the court,
forthwith, to plead thereto in accordance with
s106. The section
refers to the different pleas that may be raised by an accused. They
include a plea of guilty, or not guilty.
[20]
The magistrate omitted material, procedural steps when making the
order which he requests this court to confirm. As the charges
were
not put to the accused and he was not required to plead thereto and
did not plead thereto, no
lis
between the accused and the state had been established. In those
circumstances, evidence, to prove the acts alleged to have been
committed by the accused, could not be led and the magistrate did not
have the power to make the order which was sent for review
3
.
The State is not exonerated by s78 of its onus of proving, beyond a
reasonable doubt, that the accused committed the act, or omission
in
question, nor is it exempted from doing so in terms of the procedure
laid down by the Act and by means of admissible evidence
4
.
[21] Due to the material
irregularity the order which was made on 27 June 2013 cannot stand.
The report of the psychiatrists should
stand. There is no reason, in
principle, why this matter should not be referred back to the
Magistrate’s Court in order for
the Act to be complied with.
The charge(s) must be put to the accused; the accused must be given
an opportunity to plead; and,
depending on the plea, it will have to
be proved beyond a reasonable doubt that the accused committed the
conduct he was charged
with, before he can be dealt with as
contemplated in s78(6) of the Act.
[22] In the result:
1. The proceedings,
commencing on 27 June 2013, and culminating in the judgment and the
order of the magistrate made on the 27 June
2013, as well as the said
judgment and order for the admission and detention of Mbijana
Luphuwana (‘the accused’)
as an involuntary mental
health care user, are reviewed and set aside.
2. The matter is remitted
to the Magistrate’s Court;
3. The accused shall be
caused, by lawful means and procedures, to appear before the
magistrate, who shall deal with the matter
and finalise it in
accordance with s 78 and the other relevant provisions of the
Criminal Procedure Act, and
in the light of this judgment.
P COPPIN
JUDGE OF THE GAUTENG
HIGH COURT
(SOUTH GAUTENG LOCAL
DIVISION)
JOHANNESBURG
I agree:
B VALLY
JUDGE OF THE GAUTENG
HIGH COURT
(SOUTH GAUTENG LOCAL
DIVISION)
JOHANNESBURG
SUMMARY
CRIMINAL
PROCEDURE-CULPABILITY- MENTAL ILLNESS OR INTELLECTUAL DEFECT-
Making an order purportedly in terms of
section 78(6)(a)(ii)(aa)
of
the
Criminal Procedure Act ,51
of 1977, without finding the accused
‘not guilty’, as required by that section, is a material
irregularity--making
such an order before the accused has pleaded to
the charge is , similarly irregular--the section requires the court
to find the
accused ‘not guilty’, implying that the
charge must first have been put and pleaded to by the
accused--allowing the
state to adduce evidence to prove that the
accused committed the act in question without the accused having
pleaded to the charge
is a material irregularity-- due to material
irregularities the order purportedly made in terms of
s78(6)
and the
relevant portion of the proceedings were set aside and the matter was
remitted to the Magistrates’ Court in order
for it to comply
with the law and the applicable procedures.
1
See further
S v Mcbride
1979 (4) SA 313
(W) at 317G
; S v
Ramokoka
[2006] ZAGPHC 37
;
2006 (2) SACR 57
(W) and
S v Magongo
1987 (3) SA
519
(A) at 521G-J.
2
See
S v Zuma and others
2006 (2) SACR 69
(D&CLD) par[6]
at 74.
3
See
S v Zuma and others
(supra) paras [6] and [7].
4
Compare the facts in the present case to the facts in
S v
Dewhurst
2012 (1) SACR 627
(ECP).