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[2019] ZAFSHC 61
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S v Monamotsane (R264/2018) [2019] ZAFSHC 61 (30 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case No:
R264/2018
In the
matter between:
STATE
and
SIMON
MONAMOTSANE
CORAM:
CHESIWE, J et MOLITSOANE J
JUDGMENT BY:
MOLITSOANE, J
DELIVERED ON:
30 MAY 2019
[1] This matter was
sent on review by the Acting Senior Magistrate purportedly in terms
of s
304(4) of the Criminal Procedure 51 of 1977. When the matter
first came before me I sent a query soliciting the reasons or
comments
from the presiding officer. In the query I also requested
the presiding officer to comment on the submissions of the Acting
Senior
Magistrate. The presiding judicial officer has since confirmed
that she agreed with the submissions of the Acting Senior Magistrate
and made no further submissions of her own.
[2] The matter was sent
for review essentially as it was submitted that the presiding officer
applied
the provisions of s77 (6)(a) of the CPA incorrectly. In this
case the accused was neither convicted nor sentenced. Both sections
302 and 304(4) of the CPA refers to proceedings where the accused has
been sentenced. Section 304A, however, refers to the proceedings
in
which the accused has been convicted but where the sentence has not
been imposed. Section 77 makes no provision for automatic
review. The
High Court has the power at common law to review the decisions of the
lower courts in appropriate cases. Section 22(1)(c)
of the Superior
Court’s Act provides that proceedings of any Magistrate’s
Court may be reviewed by the High Court on
the basis of gross
irregularity in the proceedings. I am satisfied that this court may
review the proceedings of the lower court
with regard to the
application of s 77 of the CPA.
[3] The accused in
this case was charged with the offence of assault with intent to
cause grievous
bodily harm. Upon his appearance at court an
application was made that he be sent for a 30 day mental evaluation.
A report was
made in terms of s79 and the panel of psychiatrists made
the following findings:
a)
Due to mental illness the observatus does not
have the ability to understand court proceedings nor to give proper
instructions to
his defence;
b)
Due to mental illness the observatus was not able
to distinguish between right or wrong at the time of the alleged
crime;
c)
The accused is at risk of repeating a similar
offence if left untreated;
d)
It is recommended that he receives further care
and treatment as a state patient.
[4] Upon his
appearance following receipt of the report aforesaid the following
the transpired
in court:
“
PROSECUTOR: Your worship at this stage the state
request that the matter be transferred in terms of section 77(6)(a)
of Act 51 of
1977, your worship.
And also in terms of
section 47
of the
Mental Health
Care Act of 2002
to a psychiatric hospital your worship.
The state will hand in Your worship an A1 statement that
would prove beyond the Honourable Court Your Worship that there is
indeed
a prima facie case against the accused.
There is also psychiatrist report your worship from the
doctor attached to the DPP report, Your worship, that clearly
indicates
that the accused is suffering from schizophrenia.
Your worship, I have been informed that there are still
no available beds at Orange Hospital.
However, I have been informed that the accused should be
kept at Grootvlei Health Facility Your Worship until the said bed is
available.
As it pleases the court.
COURT: Sir, are you still maintaining that you will
conduct your own defence?
ACCUSED: Legal Aid now, your Worship.
FEMALE SPEAKER: I confirm my appearance, Your worship.
No objection Your Worship to the said evidence being admitted as an
exhibit.
Do you have any objection?
FEMALE SPEAKER: None, Your Worship.
COURT: The application is granted.
PROSECUTOR: As it pleases the court, Your Worship
COURT: Have you tried to check with Orange Hospital.
PROSECUTOR: They are not there, Your Worship.
COURT: Let us just transfer… Held in custody?
PROSECUTOR: Kept in custody Your Worship at Grootvlei
Health
Facility,
Your Worship.
COURT: Grootvlei Health Facility. The matter is
transferred to Grootvlei Health Facility in terms of
section
77(6)(a)(i)
of Act 51 of 1977.”
[5] In dealing with an
enquiry in terms of s77(6)(a) the court must first make a finding
that the
accused is not capable of understanding the proceedings so
as to make a proper defence. In this regard the court may take into
account the nature of the incapacity of the accused as contemplated
in s77(1). If the report compiled in terms of s79 is unanimous
and
uncontested by any of the parties as in this case, the court my
determine the matter on the basis of the report without hearing
further evidence
[1]
.During
the address by the state the prosecutor said that the report …..
‘
clearly indicates that the accused is
suffering from schizophrenia.
’
The court
did not make this finding and this is not what the court is called
upon to make a finding on. The court did not make any
finding as to
whether the accused was capable of understanding the proceedings as
to make a proper defence this despite the fact
that the state handed
a unanimous report by the panel of psychiatrist. In this regard the
court committed an irregularity.
[6] Once the court
finds that the accused is not capable of understanding the
proceedings so
as to mount his defence, the court should then proceed
with the second leg of the enquiry, namely, whether on the balance of
probabilities
the accused committed the act in question. In this case
whether the accused committed the assault with intent to cause
grievous
bodily harm. It should be borne in mind that the enquiry is
not whether the accused could be convicted of the offence on the
available
evidence. In dealing with the concept of
‘
committed
the act in question’
the court in
State
v Pedro
[2]
said the following:
“
[89] In context, the expression ‘the
act in question’ has reference to the
actus
reus
element of the offence with which the
accused is charged. If the lawmaker had intended the court to enquire
into the question whether
the accused would probably be convicted of
the charged offence if and when he became capable of understanding
the proceedings,
this would have been said. The use of the words
‘committed the act in question’ points to a more limited
enquiry
.”
The
court went further to say:
“
[93] …..the
evidential enquiry which s77(6) (a) requires the court to undertake
is limited to whether the
accused ‘committed the act in
question’ the same enquiry contemplated in s78(6). Sub-par (i)
does not extend the enquiry
to the question whether the accused is
probably guilty of one of the offences specified in that
sub-paragraph. Sub-para(i) states
that if the
charge
against the accused is one of those offences and if he
committed
the act in question
, he must be dealt
with in the manner prescribed in that sub-paragraph. The charge sheet
thus determines the charge which
the accused is facing; and the
actus
reus
elements of that charge in turn
determines the act or omission which must be evidentially
investigated in order to determine whether
the accused probably
‘committed the act in question.”
[7]
In
casu
, the court
failed to conduct an enquiry and make a finding whether the accused
committed the act in question. The court is obliged
as of law to make
such a finding in terms of s77(6) of the Act
[3]
.
Failure to make such a finding rendered the proceedings irregular.
[8]
The Act obliges the court upon finding that the accused committed any
of the following offences, namely,
murder, culpable homicide, rape or
compelled rape as contemplated in
section 3
or
4
of the
Criminal Law
(Sexual Offences and Related Matters Amendment Act, 2007
, or charge
involving serious violence or if the court finds it to be in the
public interest to order that the accused be detained
in a
psychiatrist hospital pending the decision of a judge in chambers in
terms of
section 47
of the
Mental Health Care Act 17 of 2002
.
In the absence of the availability of a bed in a psychiatrist
hospital, the court may direct that the accused be temporarily
detained in a correctional facility of a prison and be transferred to
a psychiatrist hospital
‘
if
the court is of the opinion that it is necessary to do so on the
grounds that the accused poses a serious danger to himself or
herself
or to members of the public
[4]
.
[9]
Except in matters of murder, culpable homicide, rape or compelled
rape, the court is obliged
to make an additional finding that the
offence involves serious violence or in the opinion of the court it
would be necessary in
the public interest that the accused be
detained in the psychiatrist hospital. I refrain from making any
finding in this regard
in view of my order below as that would be to
usurp the function of the trial court. I however, wish to point to
what the court
said in
S
v Ramokoka
[5]
where the following was said:
“
There
appeared to be the further question of whether, even if the accused
was guilty of ‘assault with intent to commit grievous
bodily
harm ‘the crime was one ‘involving serious violence’.
It may seem tautological to distinguish between
‘assault with
intent to commit grievous bodily harm “and a crime ‘involving
serious violence’ but as the
different terminology appears in
the same statute (see for example, s 266 of the Criminal Procedure
Act), there may be some kind
of difference.”
In
my view assault with intent to cause grievous bodily harm is not
always accompanied by violence.
One
of the elements of the offence of assault with intent to do grievous
bodily harm is proof of ‘
intent.
’
Jonathan Burchell
in
Principles of
Criminal Law
[6]
says the following in the discussion of this element of the offence
of assault with intent to do grievous bodily harm:
“
It is not necessary
that X should actually cause grievous bodily harm: It is enough that
he intends to cause it, for the crime is
not ‘causing grievous
bodily harm’. If X intends a grievous injury, but causes a
slight injury or none at all, he may
nevertheless be guilty of
assault with intent to do grievous bodily harm. Conversely, of
course, if X inflicts a serious injury
without intending to cause
grievous body harm, this crime is not committed (my emphasis).”
On
the other hand s77(6)(a)(i) envisages a situation where the charge
involves as a matter of fact serious violence.
[10] I agree with the Acting
Senior Magistrate that the non-availability of a bed in a
psychiatrist hospital
does not necessarily imply that the accused
should be referred to the correctional facility holding. The court
must be satisfied
that the accused poses a serious danger to himself
and to members of the public. The state bears the onus of discharging
this burden.
[11] In view of the number of
irregularities herein it is my considered view that the proceedings
herein were
not in accordance with justice and ought to be set aside.
I make the following orders:
[12]
ORDER:
1.
The
order of the learned Magistrate detaining Simon Monamotsane at the
Grootvlei Correctional Facility or Free State Psychiatrist
Hospital
in terms of
s77(6)
of the
Criminal Procedure Act 51 of 1977
is hereby
reviewed and set aside.
2.
Immediately
upon his release from detention Simon Monamotsane is to be handed
over to the police and forthwith to be brought before
the learned
Magistrate.
3.
The
learned Magistrate is thereupon to deal with the matter in terms of
sections 77
,
78
and
79
of the
Criminal Procedure Act 51 of 1977
.
P.E.
MOLITSOANE, J
I
agree.
S.
CHESIWE, J
[1]
Hiemstrar’s Criminal Procedure Lexis Nexis by A Kruger 13-13.
[2]
2015(1) SACR 41 WCC.
[3]
Hiemstra (
supra
)
at 13-14.
[4]
“
s77(6)(a)(i)(bb)
of the CPA.
[5]
2006(2) SACR 57 at 61 par [22].
[6]
3
rd
ed Juta at 690.