1
In the High Court of South Africa
(Western Cape Division, Cape Town)
In the matter between:
High Court Ref: 186/2023
Magistrate Ref: 414/2022
THE STATE
And
THOMAS JANSEN ACCUSED
___________________________________________________________________
JUDGMENT
___________________________________________________________________
RALARALA, AJ
INTRODUCTION
[1] This matter was placed before this Court by way of special review in
terms of section 304(4) of the Criminal Procedure Act 51 of 1977 (“the CPA”),
following the accused’s plea of guilty on contravening the provisions of section
17 (a) of the Domestic Violence Act 116 of 1998 (“the Act”), dealt with in terms
of section 112(2) of the CPA on 24 October 2022. Pursuant thereto, the
2
accused was convicted, and a Probation Officer’s report was acquired prior to
the imposition of sentence. Upon consideration of the Probation Officer’s report,
the court postponed the passing of sentence in terms of section 297(1)(a) of
the CPA.
[2] The passing of sentence was postponed for three years on condition that
the accused submit himself for treatment and monitoring by a social worker in
the service of the Department of Social Development, Picketberg. The accused
was also ordered to appear before the Magistrate Court if called upon during
the period of postponement.
[3] Thereafter, in terms of section 297(9)(a)(ii) of the CPA, the prosecution
applied for a suspended sentence imposed in a previous case against the
accused to be put into operation. At this stage, it was brought to the attention
of the court that the accused may be suffering from a mental illness. This
prompted the referral of the accused to the local hospital for provisional
assessment. Upon examination of the accused, Dr Young, recommended a
psychiatric evaluation of the accused.
FACTUAL BACKGROUND
[4] The state alleged that a protection order was issued by the Magistrate of
Piketberg on 20 May 2022 in terms of which the accused was prohibited and or
ordered to not assault, threaten to assault, or swear at the complainant. It was
further alleged that the protection order was served on the accused. Pursuant
3
thereto, the state alleged that on or about 23 September 2022 at Wittewater
Clinic in the District of West Coast, the accused unlawfully and intentionally
contravened the provisions of the protection order by swearing and threatening
the complainant. The accused who was legally represented, pleaded guilty to
the charge and a statement in terms of section 112 of the CPA was handed in
as an exhibit.
[5] The facts gleaned from his statements in terms of section 112(2) of the CPA
were that the accused admitted that on 22 May 2022 a protection order was
granted against the accused in favour of the complainant. The protection order
prohibited the accused from assaulting; threatening to assault or swearing at
the complainant. The accused admitted that the protection order was still valid
and admitted the contents thereof as described in the charge. The accused
admitted that on the aforementioned day, while the complainant, the accused
sister was visiting the local clinic, the accused confronted her in relation to
money that she owed him. Amid the aforementioned confrontation, an
argument ensued. The relevant part of the section 112(2) statement reads:
“On the aforementioned day my sister, the complainant was at the Clinic. I went
there to confront her about the money she owed me. I was also angry because
my sister keeps saying things that hurt me and treating me badly. On the day
she also told me she is going to tell the ambulance to take me away. I got angry
and swore at her saying to her jou poes and also said “vir jou donner ek.”
[6] The accused admitted that he unlawfully and intentionally contravened
the conditions of the protection order.
4
RELEVANT LEGAL PRINCIPLES AND ANALYSIS
[7] It is apparent from the record of proceedings that the accused had
previously been convicted on a similar charge and the court had accordingly
imposed a suspended sentence. Prior to the plea proceedings, in August 2022,
the accused was referred for mental observation in terms of section 77 read
with section 79 of the CPA. Subsequent to an examination conducted by
Professor S.Kalisky, a forensic psychiatrist in Valkenberg Psychiatric Hospital,
a report was compiled and presented before the Magistrate Court.
[8] The report was based solely on information obtained from the accused.
It was noted that there were no symptoms of mental illness at the time of the
report, even though the accused had experienced voices and persecutory ideas
in the past. The report stated that the accused appeared to have low average
intelligence. Professor Kalisky ultimately concluded that the accused is not
mentally ill and therefore cannot be certified under the Mental Health Care Act
17 of 2002.
[9] It was during the consideration of putting into operation the latter
sentence that the question of the accused’s mental status resurfaced. The
magistrate referred the accused for mental observation, on the strength of Dr
Young’s remarks and recommendation of 12 December 2022, to the effect:
5
“Above mentioned patient has been assessed multiple times at Radie Kotze.
This is a complex case and specialist review, in my opinion, is needed at tertiary
level (e.g Valkenberg). “
[10] Pursuant to the referral in terms of section 77 of the CPA, on 22 March
2023, the accused was examined by two Psychiatrists, namely Drs S Lintnaar
and C De Clercq, on 17 April 2023. A unanimous report was compiled and
presented to the presiding magistrate. The report was based on the information
obtained from the accused during the interviews conducted with him, as well as
the observations of ward psychiatric nursing staff. As far as the mental state of
the accused is concerned, it was noted that the accused needed prompting to
perform tasks including personal hygiene and dressing. He took longer to
execute simple instructions.
[11] According to the assessment, the accused stopped taking his
psychiatric treatment. As a result, he relapsed, and the clinical diagnosis is
Schizoaffective Disorder, Bipolar type. Ultimately, the Psychiatrists
unanimously concluded that the accused was not able to appreciate the
wrongfulness of the alleged offence or able to act accordingly. They
recommended that he be admitted as an involuntary patient at Stikland Hospital
under Chapter v of the Mental Health Care Act.
[12] The report was not challenged by the Defence and the Prosecution. On
the strength of the Psychiatrists’ report, the process that needs to be followed
is as envisaged by section 78 of the CPA. Section 78 (1) reads:
6
“(1) 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 a mental
illness or intellectual disability 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.”
.
[13] In this matter, the accused has been convicted and sentenced prior to
his referral for psychiatric assessment, meaning that the determination of non-
appreciation of the wrongfulness of his actions or acting in accordance with an
appreciation of such wrongfulness was not made by the court post -conviction
as envisaged in Section 78(6) of the CPA which 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 and 4 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007,
respectively, or another charge involvi ng serious violence, or if the court
considers it to be necessary in the public interest that the accused be–
(aa) detained in 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;
7
(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[sic] 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). . .”
[14] From the record of the court proceedings, it is apparent that the
magistrate after the conviction of the accused, invoked the provisions of section
297(1)(a) of the CPA, in terms of which the passing of sentence was postponed
for a period of three years and certain conditions were attached as
aforementioned. It is only after postponing the passing of sentence subject to
certain relevant conditions that the court became aware that at the time of the
commission of the offence, the accused by reason of mental illness or
intellectual disability was not responsible for his actions.
[15] In such cases, section 78(6) (b) of the CPA permits the court after
conviction, but before sentence is passed, to set aside the conviction. The
magistrate in his submissions was unconvinced that the invocation of section
297(1)(a) amounted to sentenci ng hence, he/she sought guidance from this
court.
8
[16] This case essentially warrants a statutory interpretation exercise.
Section 297 (1) of the CPA is a sentencing provision. Section 297 (1) (a) of the
CPA reads:
“297 Conditional or unconditional postponement or suspension of sentence, and
caution and reprimand
(1) Where a court convicts a person of any offence, other than an offence in respect
of which any law prescribes a minimum punishment, the court may in its discretion–
(a) postpone for a period not exceeding five years the passing of sentence and
release the person concerned–
(i) on one or more conditions,’ whether as to–
(aa) compensation;
(bb) the rendering to the person aggrieved of some specific benefit or service
in lieu of compensation for damage or pecuniary loss;
(cc) the performance without remuneration and outside the prison of some
service for the benefit of the community under the supervision or control of an
organization or institution which, or person who, in the opinion of the court,
promotes the interests of the community (in this section referred to as
community service);
(ccA) submission to correctional supervision;
(dd) submission to instruction or treatment;
(ee) submission to the supervision or control (including control over earnings
or other income of the person concerned) of a probation officer as defined in
the Probation Services Act, 1991 (Act 116 of 1991);
(ff) the compulsory attendance or residence at some specified centre for a
specified purpose;
(gg) good conduct;
9
(hh) any other matter, and order such person to appear before the court at the
expiration of the relevant period; or
(ii) unconditionally, and order such person to appear before the expiration of
the relevant period; or
(b) pass sentence but order the operation of the whole or any part thereof to be
suspended for a period not exceeding five years on any condition referred to in
paragraph (a) (i) which the court may specify in the order; or
(c) discharge the person concerned with a caution or reprimand, and such
discharge shall have the effect of an acquittal, except that the conviction shall
be recorded as a previous conviction.
(1A)……
(2) Where a court has under paragraph (a) (i) of subsection (1) postponed the
passing of sentence and the court, whether differently constituted or not, is at
the expiration of the relevant period satisfied that the person concerned has
observed the conditions imposed under that paragraph, the court shall
discharge him without passing sentence, and such discharge shall have the
effect of an acquittal, except that the conviction shall be recorded as a previous
conviction.”
[17] The starting point in the exercise of statutory interpretation is Section 39(2) of
the Constitution which sets out the approach to be adopted in interpretation of statutes
by our courts. Section 39(2) reads as follows:
“When interpreting any legislation, and when developing the common law or customary
law, every court, tribunal or forum must promote the spirit, purport and objects of the
Bill of Rights.”
10
[18] In a number of cases the Constitutional Court has confirmed that the
interpretation of the provisions of the statute must be in conformity with the founding
values of the Constitution. Ngcobo J, in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) at para 72,
recognised the position that the interpretation of the provisions of the Act should
properly align with the provisions of section 39(2) of the Constitution. The learned
justice observed:
“ The Constitution is now the supreme law in our country.It is therefore the starting
point in interpreting any legislation. Indeed, every court “must promote the spirit,
purport and objects of the Bill of Rights” when interpreting any legislation. That is the
command of section 39(2). Implicit in this command are two propositions: first, the
interpretation that is placed upon a statute must, where possible, be one that would
advance at least an identifiable value enshrined in the Bill of Rights; and second, the
statute must be reasonably capable of such interpretation. This flows from the fact that
the Bill of Rights is a cornerstone of [our constitutional] democrac y. It affirms the
democratic values of human dignity, equality and freedom.” (footnotes omitted)
[19] In Liesching and Others v S and Another 2017 (4) BCLR 454 (CC) para 30, the
court affirmed the position that compliance with the Constitution has to be considered
when interpreting the provisions of an Act. The court observed as follows:
“ … All statutes must be interpreted through the prism of the Bill of Rights in order to
give effect to its fundamental values. This is so because section 39(2) of the
Constitution requires courts to do so”.
11
[20] Equally, courts have long recognised that the contextual and purposive
approach must be applied to statutory interpretation, which entails the consideration
of the context in which the provision appears and its apparent purpose. Natal Joint
Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012(4) SA 593
(SCA); Road Traffic Management Corporation v Waymark (Pty) Limited [2019] ZACC
12; 2019 (5) SA 29 (CC).
[21] Fundamentally, section 297 forms part of chapter 28 of the CPA which governs
sentencing in criminal proceedings. It follows that section 297 (1) (a) has to be
considered and construed within the context of Chapter 28. The heading of Chapter
28 is ‘Sen tence’. Importantly, the context to which one refers in the process of
interpretation must be inclusive of the chapter headings. Bato Star Fishing (supra)
para 90. Intelligibly, the provision is enacted for the purposes of sentencing within the
context of the CPA.
[22] Properly construed, and in congruence with the principles espoused above,
section 297 envisages two separate instances. First, Section 297(1)(b) envisages a
case where the sentence is imposed but the execution of the whole or portion thereof
is suspended in terms of paragraph (b) thereof. Secondly 297(1)(a) envisages a case
where the sentence is postponed for a period not exceeding five years either subject
to condition or unconditionally. A court may postpone a sentence in terms of section
297(1)(a) for all offences save those for which the legislature prescribes a minimum
sentence.
12
[23] Crucially, in terms of section 297(1)(a)(hh), the court may order an accused
person whose sentence was postponed to appear before court at the expiration of the
relevant period to determine if the accused complied with the conditions set by the
court. Where the court is satisfied on such appearance that the conditions of the
postponement were met, in terms of section 297(2), the court must discharge the
accused without passing sentence. In terms of section 297(2), the discharge has the
effect of an acquittal, except that the conviction will be recorded as a previous
conviction.
[24] Thus, the postponement of a sentence in terms of section 297 of the CPA does
not amount to an imposition of a sentence. Notwithstanding that a sentence has been
postponed, the court remains endowed with the discretion to impose an alternative
sentence if the accused concerned does not comply or observe the conditions the
court imposed. If he complied with those conditions, the court must discharge him
without passing sentence.
[25] In my opinion, section 297 aims to deter or prevent future criminal conduct
rather than to punish offenders who have been convicted of committing serious crimes.
See S v Mokasi and Others 2002 (2) SACR 609 (T). In all instances where immediate
execution of a sentence will not achieve the three main objectives of punishment, the
postponement of sentence should be considered. See S v S 1977 (3) SA 830 (A).
[26] It is also important to bear in mind that in this instance, only after the court has
convicted the accused person in criminal proceedings, is it permissible for the court to
invoke the provisions of section 78(6) of the CPA. I am conscious that this c ase
13
deviates from the norm, as the invocation of section 297 should not have followed after
conviction, had the magistrate at that stage been aware of the findings made by the
Psychiatrists.
[27] In summary, an order in terms of section 297 of the CPA permits the court to
postpone the passing of sentence, conditionally or unconditionally, and confers the
court with discretion to attach conditions to the postponement of the passing of
sentence that the convicted person must comply with. Further, the section makes
provision for the procedure to be followed in the case of breach of the conditions, so
attached. Discernibly, in the case of breach of the conditions, the court may then
impose any com petent sentence. Conceivably the court may make orders to be
complied with by the convicted person, as envisaged in section 297(1) (a) of the CPA
as is the case in this instance.
[28] In my view to the extent that the passing of sentence was postponed subject to
conditions, this does not detract from the fact that the court did not impose a sentence
as envisaged in the CPA. The court would have passed the sentence if the accused
breached the conditions imposed by the court. I am of the view that this case falls
squarely within the purview of section 78(6(b) of the CPA.
[29] Considering the determination by the Psychiatrists, it was incumbent upon the
magistrate to set aside the conviction and found the accused not guilty by reason of
his mental illness.
ORDER
14
[30] In the result, I would propose the following order:
[30.1] The matter be remitted to the magistrate to properly comply with the provisions
of section 78(6) (b) of the CPA.
_____________________________
RALARALA NE
ACTING JUDGE OF THE HIGH COURT
I concur, and it is so ordered.
_____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT