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[2011] ZAECPEHC 54
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S v Dewhurst (53/10) [2011] ZAECPEHC 54; 2012 (1) SACR 627 (ECP) (22 November 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE-PORT ELIZABETH)
REVIEW CASE NO: 53/10
Date delivered: 22 November
2011
In the matter between:
THE STATE
vs
PATRICK LANCE DEWHURST
______________________________________________________________
REVIEW JUDGMENT
______________________________________________________________
MAKAULA J:
[1] The accused appeared before the
magistrate’s court charged in the main with intimidation and in
the alternative with assault.
The defence counsel requested that the
accused be sent for mental observation. Indeed, he was referred for
mental observation
in terms of
Section 79 (2) of the Criminal
Procedure Act, Act 51
of 1977
(the Act).
A joint
psychiatric report in terms of
Section 79 (1) (iii) of the Act
was submitted by
Professor H Erlacher
and
Professor Nagdee
.
They found as follows:
“
At the time of
the alleged offence, the accused was able to appreciate the
wrongfulness of the act in question, but unable to act
in accordance
with such appreciation of wrongfulness.”
[2] Their recommendation reads thus;
“
It is respectfully
recommended that the accused be dealt with as an involuntary patient,
in accordance with Section 78 (6) of Act
51 of 1977, and the
provisions of Chapter 5 of the Mental Health Care Act, Act 17 of
2002.”
[3] When the report came to hand, the
prosecutor presented it to court. The accused through his
representative did not dispute
the findings and the recommendations
made. The prosecutor informed court that there was a
prima facie
case against the accused. The representative of the accused did not
add anything to that except to request the court to make an
order in
terms of
Section 47 of the Mental Health Act 17 of 2002
(the Mental Health Act).
Having heard both counsel, the
magistrate made the following order;
“
In the light of
what was found by the panel the order is then that the accused be
detained in a psychiatric hospital or a prison
– that is what
the Act says, pending the decision of a judge in chambers, in terms
of
Sect 47
of the
Mental Health Care Act of 2002
, if it deems to be
in the interest of the public.”
(sic)
[4] The matter was brought on special
review by the additional magistrate on the grounds that the order was
erroneously granted
by the magistrate concerned because he/she failed
to make a finding as to whether the accused committed the offence he
is charged
with in terms of
Section 77 (6) (a) (i) of the Act
.
[5] The Director of Public
Prosecutions (DPP) was given the record and asked to comment. The
DPP correctly, in my view, makes the
point that:
“
7. Once a court
makes a finding that an accused is not fit to stand trial, it is
required of the court to consider whether the accused
committed the
act in question. The legislature did not intend this procedure to be
a mini-trial on the merits. A court can rely
on information or
evidence and need only be convinced on a balance of probabilities
that an accused committed the act in question.
. .
9. The prosecutor made no
submissions to court as to the circumstances of the case which
warranted, in the public interest, committal
of the accused to a
psychiatric hospital or prison pending the decision by a Judge in
chambers, despite the recommendation in the
psychiatric report that
the accused be dealt with as an involuntary health care user.”
[6]
Section 77 (6) (a) (i) of the
Act
provides as follows:
“
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 –
In the case of . . . 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.”
(Emphasis
added).
[7] It is apparent from the record
that no evidence was placed before court so as to determine whether
the accused had committed
the offence with which he had been charged.
Such could have been done by the prosecutor outlining the nature of
evidence he/she
had in the docket which links the accused to the
commission of the offence. Such facts would probably have been
confirmed by defence
counsel as it appears
ex facie
the
record. It would only be thereafter that the court would have been
able to find that the circumstances warranted that the accused
be
committed in terms of
Section 47
of the
Mental Health Care Act, No
17 of 2002
. The failure by the magistrate to comply with the
provisions of
Section 77 (6) (a) (i) of the Act
constitutes an
irregularity.
Consequently, I make the following
order:
(a) The order made by the
magistrate on 12 May 2011 detaining Patrick Lance Dewhurst in terms
of
Section 47
of the
Mental Health Care Act, 17 of 2002
is set aside;
(b) The matter is remitted to the
magistrate to make a proper determination in terms of
Section 77
(6)
(a) (i) of the
Criminal Procedure Act 51 of 1977
.
_____________________
M MAKAULA
JUDGE OF THE HIGH COURT
I agree:
______________________
E REVELAS
JUDGE OF THE HIGH COURT