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[2016] ZAGPPHC 307
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S v Mpumelang (B1157/2014) [2016] ZAGPPHC 307 (8 March 2016)
IN
THE GAUTENG DIVISION HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
High
Court Ref no: 619/15
Magistrate’s
Serial no: 16/2015
Case
Number: B1157/2014
DATE:
08 MARCH 2016
In the matter
between:
THE STATE
AND
AMUKELANG
MPUMELANG
JUDGMENT
MOLEFE J
[1] This is an
automatic review in terms of section 302 (1) of the Criminal
Procedure Act 51 of 1977 (“CPA”). The accused
appeared
before the magistrate’s court for the district of Oberholzer on
charges of housebreaking with intent to commit a
crime unknown to the
State, in the alternative trespassing.
[2] The accused was
legally represented during the trial. The magistrate found that
trespassing or the elements thereof were proven
against the accused
and that the accused was involved in the commission of the offence.
[3] A psychiatric
report in terms of the CPA was handed to the court prior to the
trial. The accused was diagnosed of schizophrenia
or cannabis-induced
psychotic disorder and declared not fit to stand trial.
[4] The magistrate
found that based on the psychiatric report, the accused was not
criminally responsible for the crime charged.
An order was therefore
made in terms of section 77 (6) (a) (ii) (aa) of the CPA and directed
that the accused be admitted in an
institution as an involuntary
mental care user in terms of
section 3
of the
Mental Health Care Act;
no 17 of 2002
.
[5]
Section 77(6)
(a) of the CPA provides that:
“If the court
which has jurisdiction in terms of
S 75
to try the case, finds that
the accused is not capable of understanding the proceedings so as to
make a proper defence, the court
may, if it is of the opinion that it
is in the interest of the accused, taking into account the nature of
the accused’s incapacity
contemplated in subsection (1), and
unless it can be proved on a balance of probabilities that, on the
limited evidence available
the accused committed the act in question,
order that such information or evidence be placed before the court as
it deems fit so
as to determine whether the accused has committed the
act in question and the court shall direct that the accused -
i) In the case of a
charge of murder
ii) where the court
finds that the accused has committed an offence other than one
contemplated in subparagraph (i) or that he or
she has not committed
any offence -
(aa) be admitted to
and detained in an institution stated in the order as if he or she
were an involuntary mental health care user
contemplated in section
37 of the Mentai Health Care Act, 2002”
[6] The matter was
referred for special review by the Acting magistrate by virtue of the
decision in State v Isaac Maluka Case number
A197/2013. This case
dealt with the provisions of section 78 and not section 77 of the
CPA. The provisions of section 78 relates
to the question of criminal
responsibility whilst the provisions of section 77 relates to the
criterion for fitness to stand trial.
[7] In casu, the
automatic review in terms of section 302 of the CPA is not
applicable. In the circumstances the matter should not
have been sent
for automatic review.
D S MOLEFE
JUDGE OF THE HIGH
COURT
H J DE VOS
JUDGE OF THE HIGH
COURT