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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2018] ZAKZPHC 4
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S v Nxumalo (R33/18) [2018] ZAKZPHC 4 (6 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIV
I
S
I
ON,
PIETERMARITZBURG
Review
case no: R33/18
In
the matter between:
THE
S
T
ATE
and
SIPHO
NXUMALO
REVIEW
JUDGMENT
Del
i
vered
on:
06 /
0
2
/
2018
MNGADI,
AJ:
[1]
This matter serves before me on referral
by the magistrate for review and setting aside of an enquiry held in
terms of s 77 of the
Criminal Procedure Act 51 of 1977 (the CPA)
.
[2]
The accused is according to the charge
sheet, 48 years old
.
He
was arr
e
sted
on 10 January 2015 and the first appeared before the magistrate
a
t
Madadeni on 12 January 2015 on a charge of rape of a three
(
3
)
year old child
.
The charge was read with section 51 and
schedule
2
o
f
the
Criminal Law Amendment Act 105 of
1997
.
[3]
The record indicates that the accused
looked mentally unstable. The learned Magistrate with concurrence of
the legal representative
of the accused referred him for mental
observation in terms of
sections 77
(1),
and
78
(2) of
the
CPA During the period 31 August 2015 to
18 September 2015 at Fort Napier Psychiatric Hospital the accused was
observed and assessed
by Dr Bretram MaClea Brayshaw a registered
specialist psychiatrist in private practice. Further, the accused
was
observed by Dr A Houidi a specialist
psychiatrist appointed by the Head of the establishment of Fort
Napier Hospital. The two doctors
found that the accused is able to
understand and follow court proceedings.
[4]
The findings of the doctors were
contested by
the
accused.
On 18 April 2017 the magistrate held an enquiry in terms of
s 77
(3)
of the CPA The accused was legally
represented. Both the above-mentioned doctors testified during the
enquiry and they confirmed
the contents of their reports which were
handed to court as exhibits. No other evidence was presented. At the
conclusion of the
enquiry
,
the
learned magistrate found that the accused was fit to stand trial.
[5]
On 17 August 2017 a different magistrate
noted that there were only two reports submitted during the enquiry
instead of three reports
as
required
by
s
79
(1)
(b) of the CPA On 17 January 2018 the regional magistrate sent the
matter to the High Court for Special Review to set aside
the enquiry
held on 5 May 2017 and to have the inquiry started
denovo.
[6]
Section 79
(1) (b) of the
CPA
provides that the relevant enquiry shall
be conducted and reported on:
'
where
the accused is charged with murder or
culpable
homicide or rape or
compelled
rape as provided for in section
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 or where the court in any
particular
case
so
di
r
ects
.-
(i)
by the medical superintendent of a
psychiatric hospital designated by
the
court
,
or
by a psychiatrist appointed by the medical super
i
ntendent
at
the
r
equest
of the court
;
(ii)
by a psychiatrist appointed by the court
and
who
is
n
ot
in
the full
t
i
me
service of the State unless the court
directs otherw
i
se
upon application
of
the
prosecutor in accordance
with
direct
iv
es
carried under subsection
(13)
by the National Director of Public
Prosecution
;
(iii)
by a psychiatrist appointed for the
accused by the court and
;
(iv)
by a clinical psychiatrist where the
court so directs
."
[7]
The provisions of
s 79
(1)
(b)
are peremptory. The
enquiry
held did not comply with the said
provisions
.
(See:
S v Ramokoka
[2006] ZAGPHC 37
;
2006
(2)
SACR 57
(W)
para 25
and 27)
.
The
learned magistrate referred the matter to this court without
specifying the provisions authorising such a procedure
.
However
,
the
high
court enjoys
an inherent power to
regulate proceedings of the lower courts in order to avoid injustice
.
[8]
I accordingly propose that the following
order be made:-
(1)
The enquiry envisaged in terms of
s 77
(3)
of
the
CPA held before the magistrate M. T
Lubuzo which commenced on 18 April 2017 and finalised on 5 May 2017
is declared invalid and
it is
set
aside.
(2)
Any renewed enquiry in terms of
s 77
(3)
shall comply with the provision of s
79(1)
(b)
of
the CPA.
MNGADI
AJ
VAN
ZYLJ