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[2014] ZAGPJHC 110
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S v Ladodana (27/2014) [2014] ZAGPJHC 110 (30 April 2014)
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Roodepoort
Magistrate’s Court Case No. DH 4471/2012
High
Court Review Case No. 27/2014
DATE:
30 APRIL 2014
In
the matter between:
THE
STATE
versus
THABO
LADODANA
JUDGMENT
MEYER,
J (WEPENER,J concurring)
[1]
This as a special review of the proceedings of the magistrate’s
court, Roodepoort
(additional magistrate Mr JD Herman).
[2]
The accused was charged with the offence of assault with the intent
to do grievous
bodily harm. He did not plead to the charge.
The court a quo issued a direction that the matter be enquired into
and
be reported on in accordance with the provisions of s 79 of the
Criminal Procedure Act 51 of 1977 (the CPA). The written report
was admitted in evidence and the findings therein contained were not
disputed by the prosecutor or the accused, who was legally
represented.
[3]
The diagnosis of the mental condition of the accused was
schizophrenia and the persons
who under s 79 enquired into his mental
condition unanimously found that he was neither fit to stand trial
nor able to appreciate
the wrongfulness of his actions and to act in
accordance with such appreciation at the time of the commission of
the act in question.
The s 79 enquiry was accordingly made
under s 77(1)
[1]
and under s
77(2)
[2]
of the CPA.
[4]
The investigating officer, Cst Mukwevho, was called as a witness.
He testified
that the complainant alleges that she came across the
accused and her grandfather while they were ‘fighting’.
She tried to stop them from fighting, but the accused ‘refused’
and he hit her grandfather with a brick on the forehead.
He
also threatened the complainant with a fork and a broken bottle.
[5]
The court a quo proceeded with the matter in terms of s 78(6) of the
CPA.
[3]
It found that the
accused committed the act in question and that he at the time of the
commission thereof was by reason of
mental illness or intellectual
disability not criminally responsible for such act. It then
found the accused ‘guilty’
and directed that he be
admitted to Stilfontein Hospital as an involuntary mental health care
user contemplated in
s 37
of the
Mental Health Care Act, 2002
.
[6]
The court a quo clearly erred in convicting the accused. He did
not plead to
the charge. Moreover, it is clear from the
provisions of subsecs 78(6)(a) and (b) that an acquittal follows a
finding that
an 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.
[7]
The accused was charged with an offence involving serious violence as
envisaged in
ss 77(6)(a)(i)
of the CPA and he was not capable of
understanding the proceedings so as to make a proper defence as
contemplated in
s 77(1).
I accordingly agree with the views
expressed by the learned senior magistrate DC van Greuning
(Roodepoort magistrate’s
court), the deputy director of public
prosecutions (South Gauteng high court, Johannesburg) RS du Toit and
the state advocate A
Stellenburg (with whom the deputy director of
public prosecutions (South Gauteng high court, Johannesburg) MP
Nengovhela agrees)
that the court a quo should have made a finding in
terms of
s 77(6)(a)
[4]
of the
CPA that the accused is not capable of understanding the proceedings
as to make a proper defence and issued a direction
in terms of
s
77(6)(a)(i)
that the accused be detained in a psychiatric hospital or
a prison pending the decision of a judge in chambers in terms of
section 47
of the
Mental Health Care Act, 2002
.
[8]
In the result the following order is made:
1.
The court a quo’s conviction of the accused of the offence of
assault with
the intent to do grievous bodily harm and its finding
and direction in terms of the provisions of
s 78(6)
of the
Criminal
Procedure Act 51 of 1977
are hereby reviewed and set aside.
2.
The matter is remitted to the learned additional magistrate Mr JD
Herman sitting
in the magistrate’s court, Roodepoort and the
court a quo is directed to comply with the relevant provisions of
s
77
of the
Criminal Procedure Act 51 of 1977
.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
W.L.
WEPENER
JUDGE
OF THE HIGH COURT
30
April 2014
[1]
Section 77(1)
of the CPA reads: ‘If it appears to the
court at any stage of criminal proceedings that the accused is by
reason
of mental illness or mental defect not capable of
understanding the proceedings so as to make a proper defence, the
court shall
direct that the matter be enquired into and be reported
on in accordance with the provisions of
s 79.
’
[2]
Section 78(2)
of the CPA reads: ‘If it is alleged at
criminal proceedings that the accused is by reason of mental illness
or mental
defect or for any other reason not criminally responsible
for the offence charged, or if it appears to the court at criminal
proceedings that the accused might for such reason not be so
responsible, the court shall in the case of an allegation or
appearance
of mental illness or mental defect, and may, in any other
case, direct that the matter be enquired into and be reported on in
accordance with the provisions of
section 79.
’
[3]
Subsection 78(6) of the CPA reads:
‘
(6)
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; or
(b)
if the court so finds after the accused has been convicted of the
offence charged but before sentence is passed, the
court shall set
the conviction aside and find the accused not guilty,
by
reason of mental illness or intellectual disability, as the case may
be, and direct-
(i) in
a case where the accused is charged with murder or culpable homicide
or rape or compelled rape as contemplated
in
sections 3
or
4
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
, respectively, or another charge involving serious violence, or
if the court considers it to be necessary in the public interest
that the accused be-
(aa)
detained in a psychiatric hospital or a prison pending the decision
of a judge in chambers in terms of section 47 of
the Mental Health
Care Act, 2002;
(bb)
admitted to and detained in an institution stated in the order and
treated as if he or she were an involuntary mental
care health user
contemplated in section 37 of the Mental Health Care Act, 2002;
(cc)
……
(dd)
released subject to such conditions as the court considers
appropriate; or
(ee)
released unconditionally;
(ii) in any
other case than a case contemplated in subparagraph (i), that the
accused-
(aa)
be admitted and detained in an institution stated in the order and
treated as if he or she were an involuntary mental
health care user
contemplated in section 37 of the mental Health Care Act, 2002;
(bb)
……
(cc)
be released subject to such conditions as the court considers
appropriate; or
(dd)
be released unconditionally.’
[4]
Subsections 77(6) and (7) of the CPA reads:
‘
(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 subsection (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 and
the court shall direct that the accused -
(i) in
the case of a charge of murder or culpable homicide or rape or
compelled rape as contemplated in
sections 3
or
4
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
,
respectively, or a charge involving serious violence or if the court
considers it to be necessary in the public interest, where
the court
finds that the accused has committed the act in question, or any
other offence involving serious violence, be
detained
in a psychiatric hospital or a prison pending the decision of a
judge in chambers in terms of
section 47
of the
Mental Health Care
Act, 2002
; or
(ii) where
the court finds that the accused has committed an offence other than
one contemplated in subparagraph (i) or
that he or she has not
committed any offence-
(aa)
be admitted to and detained in an institution stated in the order as
if he or she were an involuntary mental health
care user
contemplated in
section 37
of the mental Health Care Act, 2002;
(bb)
……
and
if the court so directs after the accused has pleaded to the charge,
the accused shall not be entitled under section 106(4)
to be
acquitted or to be convicted in respect of the charge in
question.
(b)
If the court makes a finding in terms of paragraph (a) after the
accused has been convicted of the offence charged but
before
sentence is passed, the court shall set the conviction aside, and if
the accused has pleaded guilty it shall be deemed
that he has
pleaded not guilty.
(7)
Where a direction is issued in terms of subsection (6) or (9), the
accused may at any time thereafter, when he or she
is capable of
understanding the proceedings so as to make a proper defence, be
prosecuted and tried for the offence in question.’