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[2019] ZAGPPHC 269
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Ledwaba v S (A/258/2018, PA43/2018) [2019] ZAGPPHC 269 (12 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
(1)
REPORTALE:
YES
/NO
(2)
OF INTEREST TO OTHE JUDGES:
YES
/NO
(3)
REVISED.
Appeal Case No: A/258/2018
DPP Ref No: PA43/2018
12/6/2019
In
the matter between:
THOMAS
LEDWABA
Appellant
and
THE
STATE
Respondent
JUDGMENT
HF JACOBS, AJ:
[1]
The appellant, a 29-year-old male, was
convicted on a charge of robbery with aggravating circumstances
(Count 1) and of rape (Count
2) allegedly committed on 26 September
2015. The appellant was convicted and sentenced on 16 October 2017 to
life imprisonment.
The two convictions were taken together for
purposes of sentence and the appellant was declared to be unfit to
possess a firearm
in terms of section 103(1)(9) of Act 60 of 2000.
[2]
At the commencement of the proceedings
before the Court a
quo
the
appellant had legal representation. The matter was
postponed. several times awaiting DNA evidence. On 14 November 2016
his
legal representative informed the regional magistrate that “
the
accused give me different instructions I apply to withdraw he does
not take me into hi$ confidence I cannot proceed”.
From
that date the appellant conducted his own defence but had legal
representation on appeal. The trial took place between 3 February
2017 (when the charge was put to the appellant) and 16 October 2017
(when sentence was passed). On 6 March 2017 at conclusion of
the
cross-examination of Dr Makgotso, the medical doctor who examined the
complainant after the alleged rape and robbery and who
also completed
the statutory Form J88, the appellant mentioned that he had been a
patient in a psychiatric hospital. The trial
Court thereupon
postponed the case to 2 May 2017 to allow the prosecution time to
obtain information about the appellant's alleged
sojourn in a
psychiatric institution. On 2 May the case was postponed to 23 May
and on 23 May the prosecutor handed to the court
a report of two
psychiatrists, Dr Banda and Prof Roos dated 12 May 2017. That report
was, as
will
be shown presently, not a report in terms of Chapter 13 of the
Criminal Procedure Act of 1977 ("the Act").
[3]
The report reads as follows:
"The abovenamed has a
history of cannabis intoxication causing psychosis starting from
2010. He was admitted at Weskoppies
Hospital in 2010, 2011 and 2012
with
a
working
diagnosis of cannabis induced psychiatric disorder. Most recently, he
was admitted after he was brought by his uncle with
the history of
having gone missing, found tied up and speaking to himself. He was
depressed and found to be psychotic. He was admitted
at Kalafong
Hospital on 26 December 2013, transferred to Weskoppies on 3 January
2014 and discharged on 13 February 2014. He was
diagnosed with
schizophrenia
as
well as cannabis
use disorder."
[4]
The case was then postponed to 28 July
for the typing of the record. The record had to be submitted to the
examining psychiatrists.
The transcript of 28 July does not form part
of the record but the magistrate's notes show that there was not a
bed available for
the appellant at the psychiatric hospital at the
time and the case was postponed to 4 August and again to 7 August and
again to
13 September and then to 15 September when the report of Drs
Makgobe and Pooe, the psychiatrists who examined the appellant in
terms of Chapter 13 of the
Criminal Procedure Act of 1977
, was
presented to court. The report is dated 11 September 2017. Before I
deal with the report, mention must be made of the statutory
amendments to Chapter 13 of the Act around that time.
[5]
On 26 June 2015 the Constitutional Court
declared the provisions of section 77(6)(a)(i) and (ii) of the Act
invalid. The declaration
of invalidity led to the amendment of
Chapter 13 (sections 77, 78 and 79) of the Act with effect 29 June
2017.
[1]
The advent of the amendment was between the date on which the Court a
quo
was
informed of the appellant's treatment in a psychiatric hospital and
the presentation of the report to the Court a
quo
on 15 September 2017.
[6]
The amendment did
away
with the words
"
mental defecr
and introduced the
term
" intellectual disability"
into the Act. Du Tait et al:
Commentary on the
Criminal Procedure
Act
[2
]
mentions that
'The move to the term
'intellectual disability' is in step with the times. It was also
taken by the vast panel of specialist authors
of the leading text on
mental disorders, the 'Diagnostic and Statistical Manual of Mental
Disorders', in its fifth edition, published
in 2013 (American
Psychiatric Association Diagnostic and Statistical Manual of Mental
Disorders 5 ed (2013). In this 2013 edition,
the authors opted for
the term 'intellectual disability' instead of the term 'mental
retardation' which had been used until then."
Post
amendment of
section 77(1)
it provides that
"If
it appears to the Court at any stage of criminal proceedings that the
accused is by reason of
mental
illness
or
intellectual
disability
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 section
79.
"
The Act does not define the term
"mental
illness"
or the term
"intellectual disability".
Section 1 of the Mental Health Care
Act
[3]
defines
"mental illness"
as
"a
positive diagnosis of a
mental health related illness in terms of accepted diagnostic
criteria made by a mental healthcare practitioner
authorised to make
such a diagnosis".
The Mental
Health Care Act defines
"severe
or profound intellectual disability"
to
mean "a
range of intellectual
functioning extending from partial self-maintenance under close
supervision, together with limited self-protection
skills in a
controlled environment through limited self-care and requiring
constant aid and supervision, to severely restricted
sensory and
motor functioning and requiring
a
nursing care."
That
act also does not define the term
"intellectual
disability".
[7]
The examining psychiatrists, Drs Makgobe
and Pooe, did not report on the
"intellectual
disability"
of the appellant.
The doctors, the court and the prosecutor were apparently unaware of
the amendment of the Act at the time. That
explains why the report of
Ors Makgobe and Pooe does not refer to the terms “
intellectual
disability”
while it expressly
mentions “
mental defect”,
words that no longer appear in that
context in the Act. The body of the report of Drs Makgobe and Pooe,
reads as follows:
'We hereby certify and report
as follows regarding the mental condition of the above named person,
hereafter the accused, who is
apparently 29 years old.
A.
The
examination consisted of clinical interviews with the accused and
observation of his general behaviour in the ward. He was physically
examined. A summary of court proceedings was made available to us.
B.
Psychiatric
diagnosis:
NONE.
We are aware of previous
Psychiatric interventions, but this has
no
bearing
into C and D below.
C.
The
accused is capable of understanding court proceedings and is able to
contribute meaningfully to his defence.
D.
At
the time of the alleged offence the accused did not suffer from
a
mental disorder or mental defect that
affected his ability to distinguish between the rightful or wrongful
nature of his deeds.
A mental disorder or mental defect did not
affect his ability to act in accordance with the said appreciation of
the rightful or
wrongful nature of his deeds."
[8]
As mentioned above, the appellant had no legal representation at the
time. He faced
serious charges, including charges that would, on
conviction, oblige the trial Court to invoke minimum sentence
provisions of which
he and his erstwhile representative have been
informed. I have mentioned the postponement dates between the time
when the Court
a
quo
learnt of the
appellant's treatment in a psychiatric hospital and the presentation
of the report of Drs Makgobe and Pooe on 13 September.
In terms of
sub-section 77(1A) of the Act, the magistrate had a discretion to
order that the appellant be provided with the service
of a legal
practitioner in terms of
section 38
of the
Legal Aid Amendment Act,
20 of 1996
. I am of the view that she should have done so. I hold the
view mindful of the fact that the appellant had legal representation
at one stage in the proceedings. But, at the stage of his referral in
terms of Chapter 13 of the Act he had no such legal representation.
I
am also mindful thereof that the Court a
quo
enjoyed, in
terms of section 77(2) of the Act, a discretion to determine the
issue at hand on the report without hearing further
evidence if the
report was not challenged by the appellant or the prosecution.
However, one must remain mindful of the principle
that a finding in
the context of Chapter 13 of the Act remains a finding of the Court
and not that of the psychiatrists.
[4]
I am of the opinion that in the circumstances the appellant as
unrepresented accused who underwent psychiatric examination without
having appointed the psychiatrist of his choice to the panel, was in
no position to answer whether the report of the two psychiatrists
was
contested. For reasons that follow there exists, in my view,
reasonable doubt that the proceedings in terms of Chapter 13 of
the
Act took place without substantial injustice towards the appellant
who was an unrepresented accused at the time and a person
with a long
history of mental illness.
[5]
[9]
After pleading not guilty to both charges the Regional Magistrate put
questions to
the appellant. In this regard the record reads as
follows:
"
COURT:
You pleaded not guilty to both counts. You now have the opportunity
to tell the court why you plead not guilty. What the basis
of your
defence is. The court may also question you to establish, which facts
are in dispute between you and the state and which
are not in
dispute. You are not compelled to make
a
statement or to
answer any questions the court may put to you. Do you understand?
ACCUSED:
Yes, I understand.
COURT
:
Before we proceed. All the witnesses for the state and the defence
must leave the court. Do you want to make
a
statement or not?
Ja, just raise your voice so, that it can be recorded, proceed
please? Please raise your voice?
ACCUSED
:
Your Worship, I did rape Selina. We communicated on
a
cellphone, your
Worship and we agreed that we are going to meet at the playgrounds
and that is where we met and we went somewhere
at the stone where we
were sitting at Your Worship and then [intervene]
COURT:
The stone?
ACCUSED:
Yes,
we
sat on that stone we started kissing and then that is when we had
sexual intercourse.
COURT
:
The first count is that of robbery with aggravating circumstances.
The state alleges that you did on
26
September take
with force
a
touch screen
cellphone from Selinga Mahlangu by threatening to stab her. This
is
the first count.
Can we please
start
with the first
count?
ACCUSED
:
Yes,
Your
Worship and while we were still busy with the intercourse Your
Worship
a
cellphone rang
and there
was
another person
calling, Selina and then [intervene]
COURT:
Just
a
minute. Ja?
ACCUSED
:
And when that cellphone rang she answered it and that particular
person said to her that he
is
at the
playgrounds and he is waiting for Selina and I said to her,
she
is making fool of
me.
So,
we
should go and see [indistinct]
COURT:
Just
a
minute. She is
making
a
fool
of you and?
ACCUSED
:
We should go and
see
that person and
she refused. That is when I took that cellphone.
COURT:
Just
a
minute. You then
took the cellphone and?
ACCUSED
:
I smashed it on the ground and that is when she complained that I
have ruined her cellphone [and the accused person is about to
say
something else]
COURT
:
The complainant said?
ACCUSED
:
I have ruined her cellphone.
COURT:
And?
ACCUSED
:
And Your Worship after that she said I should give her simcard.
COURT
:
Should give her
a
simcard?
ACCUSED
:
Yes
and
then we looked for and we found it and then we took off.
COURT:
Yes?
ACCUSED:
Then after that she said
she wants to tie her shoelaces and then after that we [indistinct]
COURT
:
And after that did you go or?
ACCUSED:
She ran away, Your
Worship."
[10]
The appellant's explanation in terms of
section 115
of the
Criminal
Procedure Act suggests
that he and the complainant had consensual
sexual intercourse. That was also the appellant's evidence when he
testified. That makes
his statement that he raped the complainant
during the
section 115
proceedings appear to be out of kilter with
his defence. The report of Drs Banda and Prof Roos records treatment
over a long period
of time and implies a diagnosis of schizophrenia,
a condition that, depending on the severity thereof in a patient,
might impact
on a person in the position of the appellant. The report
of Drs Makgobe and Pooe records that no diagnosis was made. That part
of the report, in my view, read in context with the report of Dr
Banda and Prof Roos, that evidence of one of the psychiatrists
should
have been considered by the trial Court. The magistrate asked the
appellant on 15 September whether he admits the report.
He was as
unrepresented accused not in a position to admit so without the
benefit of the advice of a legal practitioner and, if
so advised, the
appointment of a psychiatrist. The withdrawal of the appellant's
legal representative and the reason mentioned
for her withdrawal
compels me to question the fairness of the proceedings that gave rise
to the appellant's conviction. I am not
convinced that the appellant
has had a fair trial regard being had to the facts mentioned above.
Section 35 of the Constitution
guarantees that to every person no
matter how serious the charges are that he or she faces.
[11]
I am therefore of the view that the orders of the Court a
quo
should be set aside and that the matter be remitted to the
regional court to determine the referral of the appellant in terms of
Chapter 13 of the Act afresh.
Under the circumstances I
propose the following order:
1.
That
the appeal be upheld, and the conviction and sentence be set aside;
and
2.
That
the appellant's referral for examination in terms of
sections 77
,
78
and
79
of the
Criminal Procedure Act, No 51 of 1977
be remitted to
the trial Court to take place afresh.
HF JACOBS
ACTING JUDGE OF THE HIGH COURT
PRETORIA
I
agree, and it is so ordered.
S
N I MOKOSE J
JUDGE
OF THE HIGH COURT
PRETORIA
[1]
See: Act 4 of 2017;
De Vos N.O.
&
Another
v Minister: Justice and Constitutional Development and Others
2015 (2) SACR 217 (CC).
[2]
Volume 1, p 13-2.
[3]
17 of 2002.
[4]
See the provisions of section 77(2) and (3) of the Act.
[5]
S v Matu
2012 (1) SACR (68) (ECB) at [28].