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[2016] ZAGPPHC 449
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S v Mashinini (A394/16) [2016] ZAGPPHC 449 (14 June 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
A394/16
Not reportable
Not of interest to other
judges
Revised.
Date: 14/6/2016
High Court Reference No:
163/16
Magistrate's serial No:
SPECIAL REVIEW: 04/ 2016
Case No: TB70/ 2013
MAGISTRATE
EKURHULENI SOUTH EAST
(held at TSAKANE)
THE STATE V GOODMAN
MASHININI
SPECIAL REVIEW
JUDGMENT
POTTERILL J
[1] The accused is a 31
year old male who was charged in the District Court of Tsakane with
housebreaking with the intention to
steal and theft.
[2] The accused was sent
for observation to Sterkfontein Hospital by the Presiding Magistrate.
Pursuant to the observation he was
found not fit to stand trial and
not criminally responsible at the time of the commission of the crime
as per the psychiatric report.
[3] The office of the
Director of Public Prosecutions Gauteng Division Pretoria instructed
the prosecutor on 14 October 2014 to
request the court to act in
terms of section 77( 6)(a) of the Criminal Procedure Act, Act 51 of
1977 ("the Act'), to make
a finding whether the accused is fit
to stand trial and whether the accused committed the act in question.
The prosecutor was further
instructed to, if the court finds that the
accused is not fit to stand trial and that the accused committed the
crime, request
the court to proceed in terms of section 77( 6
)(a)(ii)(aa) of the Act and to direct that the accused be admitted to
an institution
as an involuntary mental healthcare user in terms of
the
Mental Health Care Act, No. 17 of 2002
.
[4] On 5 November 2014
the court conducted the requested enquiry. Pursuant thereto the court
found that the accused was incapable
of understanding the proceedings
as to set up a proper defence despite having found that the accused
committed the act in question.
The magistrate then disposed of the
matter in terms of section 47 of the Mental Healthcare Act, No. 17 of
2002 i.e. he was regarded
to be a state patient.
[5] Adv. Leonard SC
acting as official
curator ad !item
in her capacity as Deputy
Director of Public Prosecutions in light of the gross irregularity
committed by the Presiding Magistrate
requested the Senior Magistrate
of Brakpan to send the matter on special review.
[6] The special review is
now before us.
[7] In terms of section
21 of the Superior Courts Act, Act 10 of 2013 ("Superior Courts
Act):
"(1) A Division
has jurisdiction over all persons residing or being in, and in
relation to all causes arising and all offences
triable within, its
area of jurisdiction and all other matters of which it may according
to law take cognisance, and has the power
–
(b)
to
review the proceedings of all such courts."
In terms of section 2 2
of the Superior Courts Act:
"(1) The grounds
upon which the proceedings of any Magistrate's Court may be brought
under review before a court of a Division
are
–
(c)
gross irregularity in the proceedings."
[8] The accused committed
an offence of housebreaking with intent to steal and theft not
involving serious violence and therefore
cannot be declared a state
patient in terms of section 47 of Act 17 of 2002 despite the fact
that Sterkfontein Hospital recommended
that he be referred as such.
It is thus the opinion of the Deputy Director of Public Prosecutions
E. Leonard SC and M. Marriott,
State Advocate, that there was an
error in law committed by the Magistrate that led to a gross
irregularity -
Qozeleni v Minister of Law and Order and Another
1994 (3) SA 625
at 638D-H.
[9] We were also referred
to
S v Pedro
2015 (1) SACR 42
(WCC) at paragraph 106-108
wherein the court found that there are occasions where in the
interests of justice a less formal process
may be followed. It is
accordingly the opinion of the Director of Public Prosecutions that
the Magistrate's order dated 5 November
2014 on the face of the Jl 5
as well as the order found on the MC20 must be set aside. The order
should be substituted with an
order that the accused committed an
offence other than one contemplated in section 77(6 )(a)(i) of the
Criminal Procedure Act and
that the accused is to be admitted and
detained at Sterkfontein Hospital as if he was an involuntary mental
healthcare user in
terms of
section 3
7
of the
Mental Health
Care Act, No. 17 of 2002
until a further lawful order is given.
[10] I accordingly make
the following order:
10.1.
The Magistrate's order dated the 5
th
of November 2014 as recorded on the face of the J15 as well as the
order found on the MC20 are set aside.
10.2.
The order is substituted with an order that the
accused committed an offence other than one contemplated in section
77
(
3
>6 )(a)(i) of the
Criminal Procedure Act and that the accused is to be admitted and
detained at Sterkfontein Hospital as if he was
an involuntary mental
healthcare user in terms of
section 3
3
>
7
of
the
Mental Health Care Act, No. 17 of 2002
until a further lawful
order is given.
_________________________
S. POTTERILL
JUDGE OF THE HIGH COURT
I agree
_________________________
C. J. VAN DER
WESTHUIZEN
ACTING JUDGE OF THE HIGH
COURT