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[2015] ZAGPPHC 220
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S v Nonjini (A239/15) [2015] ZAGPPHC 220; 2016 (1) SACR 404 (GP) (20 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Review Case No:
SR3/2015/APW
DATE: 20 APRIL 2015
CASE NUMBER: A239/15
In the matter
between:
THE
STATE
and
SDN
NONJINI
Summary: Review of
criminal proceedings; Sec 22(1 )(c) of the
Superior Courts Act no 10
of 2013
;
Sec 77(6)(a)
of the
Criminal Procedure Act no 51 of 1977
;
Gross irregularity in proceedings.
REVIEW JUDGMENT
D S FOURIE, J:
[1]
The accused was charged with theft of a motor vehicle in the
Magistrate’s Court and then referred to the Sterkfontein
Hospital for 30 days mental observation in terms of
section 77(1)
of
the
Criminal Procedure Act, No 51 of 1977
. A psychiatric report was
presented to the Court a
quo
indicating
that the accused is not fit to stand trial and also that he, at the
time of the alleged offence, was unable to appreciate
the
wrongfulness of his actions. It was recommended that the accused be
admitted to the Sterkfontein Hospital as an involuntary
patient under
Chapter V of the
Mental Health Care Act, No 17 of 2002
.
[2]
Subsequent to the receipt of the psychiatric report the matter was
postponed for a decision of the Director of Public Prosecutions.
An
instruction was then issued that the prosecution must proceed and
that the Court should be requested to act in terms of
section
77(6)(a)
of the
Criminal Procedure Act. The
Court a
quo
then
proceeded to hold an inquiry in terms of
section 77(6)(a)
of the Act.
The Magistrate found that the accused could not be linked to any
offence and promptly released the accused back into
society.
[3]
The Director of Public Prosecutions then requested the Court a
quo
to
refer the matter to the High Court for review. The Acting Senior
Magistrate requested a special review in terms of
section 304(4)
of
the Act. In his submission he pointed out that the presiding
Magistrate had failed to establish from the prosecution and the
defence whether the findings in the psychiatric report are disputed
or accepted, to make a finding in terms of
section 77(6)(a)
and to
direct that the accused shall be admitted to and detained in an
institution as if he were an involuntary mental health care
user
contemplated in
section 37
of the
Mental Health Care Act, No 17 of
2002
.
[4]
The first question to be decided is whether these proceedings are
reviewable. The matter is not serving before us as a review
in terms
of
section 304
or
304A
as the accused was not convicted of an offence
or sentenced as envisaged by these sections. However, this is not the
end of the
matter. In terms of
section 22(1
)(c) of the
Superior
Courts Act no 10 of 2013
the proceedings of any Magistrate’s
Court may be brought under review if there was a “gross
irregularity in the proceedings”.
In
Qozeleni
v Minister of
Law
and Order
1994
(3) SA 625
(ECD) at 638E-G Froneman J said the following in this
regard:
“
If
the magistrate did err in his interpretation of 8 241(8), the effect
thereof would be that he had decided not to apply the (supreme)
law
of the land in a court of law. That, in my view
;
is as fundamental
an irregularity as one can get Mistakes of law by officials
exercising judicial functions are under certain circumstances
liable
to lead to the review of decisions made in consequence thereof
...
That does not mean
that any wrong application of the law by a magistrate will lead to
review: there is a distinction between a mistake
of law leading to a
situation where the supreme law of the land is not applied at all,
and a situation where the law of the land
is applied, but
incorrectly. In the latter case, generally speaking, there will be no
possibility of review
...”
[5]
I fully associate myself with this
dictum.
Although
this was said with regard to the (repealed) interim Constitution of
1993, the same principle should apply where a Magistrate
fails to
comply with a statutory provision which is peremptory. Such a failure
will amount, in my view, to a gross irregularity
in the proceedings
rendering it reviewable in terms of section 22(1 )(c) of the
Superior
Courts Act.
>
[6] The next
question to be considered is whether the presiding Magistrate
committed a gross irregularity.
Section 77(6)(a)
of the
Criminal
Procedure Act provides
as follows:
"If the
court which has jurisdiction in terms of
section 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 interests 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)
...
(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
Mental Health Care Act
,
2002,
(bb)
...
and
if the Court so directs after the accused has pleaded to the charge,
the accused shall not be entitled under
section 106(4)
to be
acquitted or to be convicted in respect of the charge in question
.
”
[7] The provisions
of subsection (6)(a)(ii)(aa) appear to be peremptory. That also
applies to a case where a Court finds that the
accused has not
committed any offence. In either event the Court “shall direct”
that the accused be admitted to and
detained In an institution as
referred to in the subsection.
[8]
In the matter before us the Court a
quo
found
that the accused could not be linked to any offence, but failed to
apply the provisions of
section 77(6)(a)(ii)(aa)
of the Act. This is
not a mistake where a statutory provision is applied incorrectly.
This is a mistake where a statutory provision
which is peremptory,
was not applied at all. This, in my view, amounts to a gross
irregularity in the proceedings which necessitates
that the
proceedings and order in terms whereof the accused was released,
should be set aside.
ORDER
:
In the result I propose the following order:
(1)
The proceedings and the order in terms whereof the accused was
released are set aside
in
toto\
(2)
The matter is remitted to the Magistrate, Vereeniging to be dealt
with
de novo
in
terms of the provisions of
section 77
of the
Criminal Procedure Act,
No 51 of 1977
, with specific reference to subsection (6)(a)(ii)(aa)
thereof and for this purpose the accused must be brought before the
Court
again.
D.S.FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA
I agree and it is so
ordered.
N B TUCHTEN
JUDGE
OF THE HIGH COURT
PRETORIA
Date: 2 APRIL 2015.