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[2016] ZAECBHC 4
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S v Mthimkhulu - Review Judgment (12/16) [2016] ZAECBHC 4 (5 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
Case
No. 12/16
Case
reference
THE
STATE
and
MANYANO
MTHIMKHULU
REVIEW
JUDGMENT
HARTLE
J
[1]
The accused was declared a state patient on 5 February 2014 pursuant
to an enquiry in terms of Chapter 13 of the Criminal Procedure Act,
No. 51 of 1977 (CPA), in the regional court sitting in Alice.
[2]
On 17 September 2015 the Deputy Director of Public Prosecutions,
Bhisho, noted that the enquiry and detention order had been issued
pursuant to the provisions of section 77 rather than
section 78
of
the
Criminal Procedure Act. She
considered it necessary that
the matter be referred to this court on “special review”.
[3]
The basis upon which this court has been requested by the regional
court to review and correct the order of the magistrate is framed in
the following terms:
“
1.
The accused was declared a state patient in terms of
S 77(6)
of the
Criminal procedure Act in the Regional Court sitting at Alice.
2.
The court acted upon the recommendation of the DPP which reads as
follows:
*
According to the psychiatric report the accused is currently fit to
stand
trial, but at the time of the commission of the offence he was
suffering from a mental illness or intellectual disability that made
him not criminally responsible for the alleged offence of (murder).
According to the psychiatric report the accused is currently
fit to
stand trial, but at the time of the commission of the offence he was
suffering from a mental illness or intellectual disability
that made
him not criminally responsible for the alleged offence of
Murder
.
*
Since the charge is
Murder
, the proceedings in terms of
Section 77
(6) of the
Criminal Procedure Act 51 of 1977
must take
place in Regional Court.
3.
The court made an order as per the recommendation of the DPP.
4.
The DPP has since made the following remarks:
*
The enquiry into the mental status of the accused ought to have been
dealt
with in terms of
section 78
of the
Criminal Procedure Act 51 of
1977
. However, the Regional Court Magistrate conducted the
enquiry and made an order in terms of
section 77
of the said Act.
*
In order to remedy the situation the matter has to be sent on Special
Review.
5.
In the interim the Regional Magistrate, … who conducted the
enquiry, has
retired.
6.
I agree with the remarks express(ed) by the DPP. I therefore
request the
Honourable the reviewing Judge to set aside the
proceedings so that a new enquiry may be held, alternatively, that
the order made
in terms of S77 (6) be substituted with an order in
terms of S78(6) of the Criminal procedure Act.”
[4]
The accused
was charged with the murder of his mother committed at or near the
Nkobo-Nkobo location, Alice, on 27 February 2013.
It is alleged
that he unlawfully and intentionally killed her by hitting her with a
“stamp-kok”
[1]
.
According to the post mortem examination the deceased suffered
multiple lacerations and abrasions to the head, as well as
multiple
fractured ribs and lacerated organs. The cause of death was
attributed to “blunt force”. On anyone’s
account this was a violent killing.
[5]
According to a statement deposed to by the accused’s brother
which was tendered into evidence at the enquiry with the consent of
the accused’s legal representative, the latter had reported
the
incident to him shortly after it happened. When the brother
arrived at the scene he found their mother lying on her face
in a
pool of blood. The accused had also smashed a corrugated iron
bath and a radio cassette attesting to his behavior having
been out
of control at the crime scene. The accused confided in his
brother that he had woken up and assaulted their mother
without any
reason and claimed to have attacked her because he was “mentally
disturbed”.
[6]
According to the J15 the accused was arrested on 27 February 2013,
but the first date of appearance in the regional court was only on 27
January 2014. The record of the magistrate’s
court
proceedings was not included in the review documentation. The
magistrate’s court proceedings would no doubt have
revealed the
basis upon which the accused was referred for observation (and should
in any event have been placed before the regional
court as well) but
I will assume for present purposes, because of the focus in the
psychiatric report on both aspects, that the
accused was referred
both in terms of
sections 77
and
78
of the
Criminal Procedure Act.
[7
]
The
culmination of the enquiry was a psychiatric report addressed to the
Senior Public Prosecutor, Alice, under cover of a letter
dated 17
October 2013. It appears from this that the panel who examined
the accused at the Fort England Hospital during the
period 1 to 16
October 2013 was limited to a state psychiatrist,
[2]
a psychiatrist appointed by the court
[3]
and a clinical psychologist.
[4]
A diagnosis was made on Axis I of “psychotic disorder
NOS, in full remission, without treatment”. The diagnoses
on Axis II and III were deferred.
[8]
The ultimate conclusion drawn by the panel was that the accused was
able to follow court proceedings so as to make a proper defence but
he was found, at the time of the alleged offence, to be unable
to
appreciate the wrongfulness of the act in question. The report
concludes with the recommendation that he “be made
a state
patient at Fort England Hospital in accordance with the provisions of
section 42 of the Mental Health Care Act, No. 17
of 2002 (MHCA)”.
[9]
On 3 December 2013 the Deputy Director of Public Prosecutions
addressed
the Senior Public Prosecutor, Zwelitsha, enclosing the
report and indicating that, since the charge was one of murder, the
proceedings
in terms of
section 77
(6) of the
Criminal Procedure Act
should
take place in the regional court. The suggested
course to be followed by the prosecutor was outlined in the following
terms:
“
3.
The report should be submitted to the Court in terms of
Section 77(2)
of the
Criminal Procedure Act 51 of 1977
.
4.
If the court finds that the accused is fit to stand trial, the
prosecution against
the accused must go ahead in order to prove that
the accused committed the act in question, as required by
Section
78(5)
of the said Act.
5.
If the court finds that the accused committed the act in question and
that at
the time of such commission the accused was by reason of
mental illness or intellectual disability not criminally responsible
for
such act, a verdict of not guilty must follow. (See Section
78(6) of the said Act.)
6.
The court must be requested, after the accused has been found not
guilty in terms
of Section 78(6) of the Act, to direct that, in terms
of section 78(6)(i)(aa) of the Act, the accused be detained in Fort
England
hospital or prison pending the decision by a judge in
chambers as contemplated in
Section 47
of the
Mental Health Care Act,
2002
.”
[10]
Attached to the Deputy Director of Public Prosecutions’
instruction was a copy of
Form MC 22 for the prosecutor’s
convenience. This form is the template used when an order is
made in terms of the provisions
of
section 78
(6) of the
Criminal
Procedure Act.
[11
]
The accused was legally represented at the proceedings in the
regional court. Regarding
the “trial of the facts”
it appeared to have been common cause that he had committed the crime
of murder on the basis
set forth in the charge sheet. Several
documents comprising witness statements; the post mortem examination
report; the psychiatric
report and the directions of the Deputy
Director of Public Prosecutions were admitted into evidence by
consent. The
accused’s legal representative
conceded that there was “a case against the accused”, but
added his request that
“by reason of mental defect” the
accused be declared a state patient. The prosecutor agreed with
the submission
and, apart from clarifying at which facility the
accused was to be held, the magistrate proceeded without further ado
to make his
order which was in the following terms:
“
Therefore the
Court is making the Order in terms of
Section 77(6)(a)(i)
of the
Criminal Procedure Act 51 of 1977
as amended. And the Order is
directed to Fort England Mental Hospital.
Whereas the Court found
that Manyano Mthimkhulu who is awaiting trial on a charge of murder
is not capable of understanding the
proceedings so as to make a
proper defence and the Court having found that the accused has
committed the action in question to
wit murder.
Therefore a Court Order
is hereby granted to detain the said Manyano Mthimkhulu pending the
decision of a judge in chambers in terms
of
Section 47
of the
Mental
Health Care Act 17 of 2002
until a further lawful order is given for
his disposal.”
[12]
Despite the MC 22 template provided, the order which the magistrate
issued was handwritten
on Form MC 20 which, by design, is for an
order issued in terms of
section 77
(6) (a) (i) of the CPA.
[13]
It is not clear why the magistrate found that the accused was not fit
to stand trial whereas
the psychiatric evidence did not support such
a finding. Further, without any indication on the record that
he in fact adopted
the procedure set forth in
section 78
(6), the
magistrate endorsed on the face of the J15 that “the accused is
found not guilty by reason of mental illness and
defect”.
The latter finding would in fact have been the correct one to make,
although the magistrate evidently did
not follow the indicated
practice in coming to this conclusion.
[14]
The procedure to be adopted in terms of the provisions of
section 77
of the
Criminal Procedure Act, once
the matter has been enquired into
and reported on in accordance with the provisions of
section 79
of
the
Criminal Procedure Act, and
the consequences flowing therefrom in
the context of what is relevant to the present matter, are set forth
as follows:
“
77. Capacity
of accused to understand proceedings.
—(1) ….
(1A) ...
(2) If
the finding contained in the relevant report is the unanimous finding
of the persons who under
section 79
enquired into the
mental condition of the accused and the finding is not disputed by
the prosecutor or the accused, the court
may determine the matter on
such report without hearing further evidence.
[5]
(3) ...
(4) ...
(5) If
the court finds that the accused is capable of understanding the
proceedings so as to make a proper defence, the
proceedings shall be
continued in the ordinary way.”
[15]
That is as far as the first part of the enquiry should have
proceeded. The magistrate
ought to have made a finding in terms
of
section 77
(5) of the
Criminal Procedure Act that
the accused was
capable of understanding the proceedings so as to make a proper
defence, and thereafter to have continued the proceedings
in the
ordinary way.
[16]
What is the “ordinary way” is that the accused should
then have pleaded to
the charge. This is because there was no
issue regarding his triability. No doubt he would have pleaded
not guilty
“by reason of mental defect” as his legal
representative had informally indicated to the court was his stance,
and
aligned himself with the panel’s findings that he was not
criminally responsible at the time he killed his mother. This
would indeed have provided the necessary affirmation that the finding
in the report was not in dispute as required by the provisions
of
section 78
(3) of the
Criminal Procedure Act. The
prosecutor’s
attitude should also have been noted on the record whereupon a “trial
on the facts” was necessary
to be proceeded with in terms of
the provisions of sub-rule (6). Since such a trial had already
established, albeit in the
first part of the enquiry, that the
accused had probably committed the act in question, and since the
finding of the panel was
not in dispute, the court would then have
made a finding on the basis indicated by
section 78
(6) (a) of the
Criminal Procedure Act concluding
that the accused was “not
guilty”.
[17]
The relevant provisions of
section 78
of the
Criminal Procedure Act,
dealing
with the aspect of criminal responsibility are set out below:
“
78. Mental
illness or mental defect and criminal responsibility.
—
(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
from a mental illness or mental defect 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.
(1A) Every
person is presumed not to suffer from a mental illness or mental
defect so as not to be criminally responsible
in terms of
section
78
(1)
,
until the contrary is proved on a balance of probabilities.
(1B) Whenever
the criminal responsibility of an accused with reference to the
commission of an act or an omission which
constitutes an offence is
in issue, the burden of proof with reference to the criminal
responsibility of the accused shall be on
the party who raises the
issue.
(2) If it is
alleged at criminal proceedings that the accused is by reason of
mental illness or mental defect or for
any other reason not
criminally responsible for the offence charged, or if it appears to
the court at criminal proceedings that
the accused might for such a
reason not be so responsible, the court shall in the case of an
allegation or appearance of mental
illness or mental defect, and may,
in any other case, direct that the matter be enquired into and be
reported on in accordance
with the provisions of
section 79.
(3) If the
finding contained in the relevant report is the unanimous finding of
the persons who under
section 79
enquired into the relevant
mental condition of the accused, and the finding is not disputed by
the prosecutor or the accused,
the court may determine the matter on
such report without hearing further evidence.
(4) ...
(5) ...
(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; …
(
b
)
…”
[18]
Pursuant to the court’s finding of not guilty, it would then
have been incumbent
on the magistrate to direct the accused’s
fate in accordance with the provisions of
section 78
(6) of the
Criminal Procedure Act, which
options are stated as follows:
“
(i)
in a case where the accused is charged with murder or culpable
homicide or rape or compelled rape
as contemplated in
sections
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
that the accused be—
(
aa
) 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;
(
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
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;”
[19]
The Director of Public Prosecutions had suggested that the accused be
detained at the Fort
England Hospital or in prison on the basis
envisaged in
section 78
(6) (i) (aa) of the
Criminal Procedure Act,
which
it appears would have been appropriate to the circumstances of
the violent crime committed by the accused. The “decision”
of the Director of Public Prosecutions in this instance, which was
motivated to the court as being the appropriate course of action
to
be adopted in the circumstances, is wholly consistent with the
relevant procedure set forth in
section 78
(6). As an aside it
needs to be emphasized that the Director of Public Prosecution’s
“decision”, or directions
regarding the manner of
disposal of a matter, once a
section 79
enquiry has been undertaken
and the diagnosis and recommendation of the professionals is to hand,
is critical to the process.
[20]
As
indicated in a recent opinion furnished to this court by Messrs N
Henning & JPM Marais of the Director of Public Prosecutions
:
Grahamstown in the matter of S v Thobile Hobaga:
[6]
“
Once the diagnosis
and recommendation of the professionals are at hand, the decision as
to the further disposal of the case (i.e.
how the accused is to be
dealt with) is reserved for the relevant Director of Public
Prosecutions, and not the local public prosecutor.
[7]
The eventual application to the Magistrate regarding the disposal of
the accused is therefore a well-considered decision
by the Director
of Public Prosecutions, based on the professional assessment and
recommendation of a panel of psychiatrists and
psychologists.”
[8]
[21]
In this sense it serves an oversight purpose which, together with the
observation and assessment
process provided for in
section 79
of the
Criminal Procedure Act, ameliorates
or eliminates the risk of an
incorrect order for the detention of an accused, whether as a state
patient or an involuntary mental
health care user. This
safeguard however requires the local prosecutor to ensure that the
instruction from the Director is
given effect to, an exhortation that
was ostensibly ignored
in casu.
[22]
Consequent upon a finding of not guilty, and assuming a proper
exercise of the magistrate’s
discretion, this would most likely
have culminated in the selection of the option predicated upon the
provisions of
section 78
(6) (i) (aa) of the
Criminal Procedure Act.
The
detention order by the magistrate should further have been on
form MC 22, which would have indicated to those taking custody of
the
accused the proper nature of the basis for his detention.
[23]
There is a
clear distinction in purpose between the provisions of
section 77
and
78
of the
Criminal Procedure Act although
the outcome might be the
same in effect if a serious offence is alleged to have been
committed. This distinction was highlighted
in the recent
judgment of S v Pedro
[9]
which,
although for a different reason than is relevant to the facts of the
present matter, demonstrates how the magistrate in
this instance
confused the two enquiries:
“
[80]
…
Section 78(6)
applies where an accused, who has the mental
capacity to understand the proceedings against him as contemplated in
s 77
, has entered a plea of not guilty. In terms of
ss 78(1A)
and
(1B) a person is presumed to have been criminally responsible at the
time he perpetrated the alleged offence, and an accused
who puts his
criminal responsibility in issue bears the burden of proving the lack
of criminal responsibility.
Section 78(6)
applies where, pursuant to
criminal responsibility having been raised as an issue, the court
finds that the accused lacked criminal
responsibility at the relevant
time. (Throughout this judgment I refer to lack of criminal
responsibility only where it is brought
about by mental illness or
mental defect.)
[81]
Where, by contrast, an accused is not capable of understanding
proceedings as contemplated in
s 77
, he cannot in the nature of
things enter a plea and the question of his criminal responsibility
at the time of the alleged offence
cannot be judicially determined in
accordance with
s 78.
An accused who by reason of mental illness or
mental defect is not capable of understanding the proceedings may or
may not also
have lacked criminal responsibility at the time he
perpetrated the alleged offence; either way, he must be dealt with in
accordance
with
s 77
, not
s 78.
This means that he can be found
neither guilty nor not guilty; no verdict is entered, and instead a
direction must be made in accordance
with either sub-para (i) or (ii)
of
s 77(6)(a).
There are several cases in which erroneous verdicts in
terms of
s 78(6)
have on this basis been set aside on review (see,
for example, S v Matumbela Case 104/02/2012 WCHC Reference 2/13; S v
Hendricks
Case B690 WCHC Ref No 13195).”
[24]
Despite the misdirected approach, however, the correct conclusion of
not guilty by reason
of mental illness was justified, and the
accused’s detention as a state patient properly warranted by
the fact that he had
on a balance of probabilities committed a
serious and violent offence, for which act he was not criminally
responsible at the time
of the commission due to mental illness.
[25]
Based on the aforegoing it follows that the incorrect order ought to
be set aside and the
enquiry undertaken afresh, but given the delay
since the accused was committed, and the probability that his
rehabilitation will
be disrupted if the matter is remitted to the
regional court, I requested the Director of Public Prosecutions,
Bhisho, to advise
how this anomaly should be addressed. Ms. De
Kock and Mr. Bezuidenhout obliged with their helpful submissions as
follows:
“
A.
Following your request for my views on the above matter dated 14
March 2016 Adv. De Kock of my
office furnished me with the following
opinion, namely that the order declaring the accused State Patient
should not be set aside:
“
1.
The accused was charged with murder in the Regional Court.
After having been referred
for mental observation, a panel of two
psychiatrists and a psychologist found the accused to be fit to stand
trial but not criminally
responsible for the murder due to mental
illness at the time of the event.
2.
It is at first glance not clear in terms of which section of the
Criminal Procedure Act
(“the CPA”) the Regional
Magistrate dealt with and concluded the matter. The charge
sheet reflects “The
accused is found not guilty by reason of
mental illness or defect”. This suggests that the
Regional Magistrate dealt
with the accused in terms of
section 78
of
the CPA.
3.
However, the court order (MC20) reflects that the order was made in
terms of
section 77(6)(a)(i)
of the CPA.
4.
Unfortunately the full record of the court proceedings was despite
several requests
to the Clerk of the Court not made available to us
up to now.
5.
I am of the opinion that the accused was correctly declared a State
Patient.
From the available information to us, it is possible
that the Regional Court Magistrate conducted the proceedings
correctly in
terms of
section 78
of the CPA, but used the wrong
pro
forma
document when issuing the order.
6.
In light of the fact that two years have passed since the accused has
been declared
a State Patient and as he is currently receiving
treatment, it is in my opinion that it would not be in the interests
of justice
to disrupt the treatment of the accused as a patient in
order for the enquiry to be conducted
de novo
.”
B.
1.
I agree with Adv. De Kock’s opinion as expressed in paragraph 6
(supra).
2.
Taking into account the finding of the assessment panel the correct
order would
have been in terms of
section 78
of the CPA. There
was just no evidential basis for the Regional Magistrate to declare
the accused State Patient in terms
of
section 77
of the CPA.
3.
The ratio behind declaring an accused State Patient is not to punish
him but
to facilitate his treatment, and, if possible his recovery
from a mental illness. That being the situation, once it is
established
that an accused should have been declared State Patient,
the emphasis should not be on whether the correct section in the CPA
or
the correct legal procedural was followed, but rather whether the
outcome was fair in that the desired result was reached.
4.
A pragmatic approach would then in my view be appropriate, and in
this case,
taking into account that the setting aside of the
proceedings to start all over again will put the accused right at the
back of
the very long row of those accused awaiting admission to
mental hospitals, and taking into account that this would probably
seriously
disrupt the accused’s treatment, the whole purpose of
declaring the accused State Patient may be defeated.
5.
Furthermore, even if the Regional Magistrate intended to declare the
accused
State Patient in terms of
section 77
of the CPA and he
therefore should not have been found guilty, thus running the risk to
be prosecuted should he recover from his
mental illness, that risk
can be excluded as I give an undertaking from the prosecution’s
side that in that unlikely event,
the State will not institute
criminal proceedings against the accused for this offence.”
[26]
I am inclined to agree that despite the irregularities in these
proceedings under review,
the end result is the same, i.e. that the
accused has been declared a state patient under the provisions of
section 47
of the
Mental Health Care Act, and
that it would be
harmful to his rehabilitation, and not serve the interests of
justice, to remit the matter to the regional court.
Mr.
Bezuidenhout correctly emphasizes the
ratio
behind the
declaration of an accused person as a state patient, which is not to
punish him, but to facilitate his treatment and,
hopefully, his
recovery from mental illness. Despite having being received
into the programme pursuant to the wrong provisions
of the
Criminal
Procedure Act, this
is an insignificant detail against this objective
and the gains made by the treatment he has undergone since the
“wrong”
order was issued more than two years ago.
[27]
This court is in any event in as good a position as the regional
court to make the appropriate
finding warranted by the clear
circumstances of the matter and the obvious outcome which ought to
have ensued.
[28]
In the result the following order issues:
1.
The finding endorsed on the face of the J15 to the
effect that the
accused is “not guilty by reason of mental illness or defect”
is confirmed.
2.
The detention warrant is substituted, retrospective
to 5 February
2014, with the correct warrant on Form MC 22 (attached marked
Annexure “A”).
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT,
BHISHO
DATE
OF JUDGMENT: 5 April 2016
[1]
The word “stamp-kok” according to one of the exhibits
filed in the proceedings is an empty five litre paint can filled
with “concrete and a big iron” which was apparently
being used by the accused to lift when “training”.
[2]
Section 79
(1) (b) (i).
[3]
Section 79
(1) (b) (iiI).
[4]
Section 79
(1) (b) (iv).
[5]
Neither the prosecutor or the accused’s legal representative
were pertinently asked if the report was in contention, but
it can
reasonably be inferred from the record that the findings were
accepted, thus providing the jurisdictional basis for the
court to
determine the matter on the basis of the report without hearing
evidence.
[6]
Case no. CA&R 293/2015 : review number 20150147.
[7]
In terms of
Part 25
of the National Prosecuting Authority Police
Directives, issued in terms of the Constitution and the National
Prosecuting Authority
Act, 32 of 1996; it thus carries a statutory
imprimatur.
(This
footnote is incorporated from the opinion referred to above.)
[8]
The opinion related specifically to the question whether this court
has authority to review Chapter 13 proceedings under the
usual
rubric which they are submitted to this court, namely by way of
“special review”. The court in that instance
declined to accede to the invitation to review the proceedings on
the premise that it was unnecessary to do so in the circumstances.
These matters are, however, often referred to the court on a
“special review” basis, which is strictly speaking not
correct or appropriate. The time will come hopefully when this
court’s oversight can be dispensed with on the assumption
that
the lower courts, ably guided by the Director of Public Prosecutions
and the designated legal representatives, are properly
applying the
specialized machinery of Chapter 13 to the issues of triability and
criminal responsibility.
[9]
2015 (1) SACR 42
(WCC) at [80] – [81].