About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2015
>>
[2015] ZAKZPHC 12
|
|
In the matter of Young (1801/15) [2015] ZAKZPHC 12; 2016 (1) SACR 399 (KZP) (3 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE
NO: 1801/15
In
the matter of:
JIMMY
YOUNG
.............................................................................
MENTAL
HEALTH CARE USER
REVIEW
JUDGMENT
Delivered
on: 3 March 2015
MAHARAJ
AJ (K PILLAY J concurring)
Introduction:
[1]
The above mentioned matter was sent to the High Court by P.S Gebashe
the Chairperson of the Unthungulu Mental Health Review
Board for
consideration and an order by this Court in terms of
Section 34(7)(c)
of the
Mental Health Care Act 17 of 2002
.
[2]
Save for the typographic errors on pages 3 and 4 of the application
relating to the dates on 14
th
January 2014 which should read 14 January 2015 and 17 January 2015
respectively, the application is well motivated and was of great
assistance in writing this judgment. I am indebted to P.S.
Gebashe for the effort.
[3]
At the outset I wish to emphasize that this matter is not
before me as a review in terms of
section 304
or
304A
of the
Criminal
Procedure Act 51 of 1977
. The accused was not convicted of an
offence in the court
a quo
,
and the order made by the magistrate in terms of
section 77(6)(a)(ii)
is not a sentence as contemplated in
section 302
(1) (a).
[4]
This does not mean that the High Court does not have jurisdiction to
review and set aside the proceedings of the Lower Court.
In
terms of
section 22(1)
of the
Superior Courts Act 10 of 2013
, the
proceedings of the Lower Court may be brought under review in the
High Court if there is “gross irregularity in the
proceedings”. An error of law might in some instances or
circumstances amount to a gross irregularity (see Quozeleni
v
Minister of Law and Order and Another 1994(3) SA 625 at 638 D-H)
[5]
The High Court also has inherent powers to review proceedings
of the Lower Courts on the basis of the constitutional
principle of legality. In this instance, in the
interest of justice, a less formal process is followed or condoned
where the Review Board has already sent the matter to the High Court
for direction.
The
Issues
:
[6]
The circumstances surrounding this application by the Review Board
can be distilled as follows:
(i)
The health care user Jimmy Young was
initially charged with a sexual assault contravention in terms of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32
of 2007.
(ii)
A report by the control prosecutor,
Empangeni, indicated that the health care user flashed his genitals
to a member of the
public and was of the opinion that the nature of
the charge warranted detention in terms of the Mental Health Act 17
of 2002.
(iii)
The prosecutor also mentions in the report that the mental
state of the accused is not mentally balanced and makes reference
to
the copy of the District Surgeon’s report.
[7]
The District Surgeon, Dr F.A. Van Niekerk on the 15
th
October 2014 submitted a report which states “He is not 100%
insane, however not 100% in full ‘compos mentos’
with his
environment. He is a loner and makes an income by begging at
robots”.
[8]
Subsequently the learned magistrate, on the 27
th
November 2014 ordered the detention of the accused, Jimmy Young, to
be detained at Ngwelezane in terms of
section 77
(6)(a)(ii) of the
Criminal Procedure Act 51 of 1977
, as if the accused were
an involuntary mental health care user contemplated in terms of
section 33
of the
Mental Health Care Act 17 of 2002
.
[9]
The health care provider, Mthandeni Nyawo, applied for the assisted
care of Jimmy Young on the 14
th
January 2015, having filled out the form MHCA 04, wherein he
mentions that there are no known relatives and the health care
user
is unable to give an account of himself and lacks insight into his
mental state and is likely to inflict harm on others.
[10]
On 15
th
January 2015 Dr P.A. Ngema recorded on the MHCA 05 on the mental
health care user as follows:
(i)
was illogical with incoherent speech, loss of reality testing;
(ii)
is dangerous
(iii)
is incapable of making an informed decision on the need to receive
case, treatment and rehabilitation services.
[11]
On the 17
th
January 2015 Dr P.S. Mabuza also recorded on the MHCA 05 that the
mental Health care user:-
(i)
had restricted affect; illogical at times,
gives a poor and incoherent account of self, loss of reality testing;
(ii)
suffers from psychotic disorder;
(iii)
is dangerous
(iv)
is incapable of making an informal decision
on the need to receive case, treatment and rehabilitation services;
(v)
is not willing to receive case treatment
and rehabilitation services;
(vi)
is likely to inflict serious harm on
himself and others;
(vii)
should receive involuntary care, treatment
and rehabilitation.
[12]
The Chairperson of the Uthungulu Mental Health Review Board had
certain reservations about the procedure followed by the court
a
quo
in which the mental health user was
referred.
[13]
The gravamen of his concerns can be crystalized as follows:-
(i)
the correct interpretation of the phrase ‘admitted to and
detained in an institution stated in the order as if he or she
were
an involuntary mental health user’ in
section 77(6)(a)(ii)
of
the
Criminal Procedure Act.
(ii)
there being no certainty if the mental health care user could be
discharged from the hospital, if fit for discharge, without
reverting
to the court.
(iii)
the order in terms of
section 77(6)(a)(ii)
of the
Criminal Procedure
Act was
made without the mental health care user, having being
referred in terms of
section 77(1)
of the
Criminal Procedure Act for
an enquiry and reports in accordance with the provisions of
section
79(1)
of the
Criminal Procedure Act.
[14
]
The learned Chairperson also raised the following question and sought
direction from this court, namely:
(i)
whether an order issued in terms of
section
77(6)(a)(ii)
of the
Criminal Procedure Act 51 of 1977
dispensed with
the statutory requirements of
section 33(1)(a)
of the
Mental Health
Care Act 17 of 2002
read with Regulation 10(1) of the General
Regulations made in terms of section 66(1) of the said Act which
makes provision for
an application for involuntary care, treatment
and rehabilitation to be made on form MHCA 04 by a spouse, next of
kin, partner,
associate, parent, guardian, by a health care provider.
Section 33(4)(a) requires the head of the establishment, upon
receipt
of the application to cause the mental health care user to be
examined by two mental health care practitioners. The mental health
care practitioners submit their reports in writing to the head of the
establishment. It is on the basis of these reports
that the
head of the establishment approves the application for involuntary
care, treatment and rehabilitation. Where the
treatment is
approved the mental health care user will be admitted and subjected
to a 72 hour assessment as prescribed in section
34(1) of the said
Act.
(ii)
whether the mental health care user can be
referred to another institution if such institution is not selected
by the court in terms
of
section 77(6)(a)(ii)
of the
Criminal
Procedure Act 51 of 1977
, without reverting to the court.
(iii)
where there is an order in terms of
section
77(6)(a)(ii)
of the
Criminal Procedure Act and
upon admission of a
mental health care user, the examination findings are that conditions
for involuntary care, treatment and rehabilitation
do not exist, the
effects of the court order need to be ascertained.
(iv)
the history of a mental health care user is
a vital element of a diagnosis procedure. The reports in terms
of
section 79(3)
and (4) of the
Criminal Procedure Act contain
invaluable material of such history. It is necessary that
copies of such reports accompany a
section 77(6)(a)(ii)
order.
A directive to this effect will be of great assistance to mental
health care practitioners.
Interpretation
of
section 77(6)
of the
Criminal Procedure Act 51 of 1977
:
[15]
The provision of
section 77(6)
of the
Criminal Procedure Act,
suggests
that an accused person is not fit to stand trial by reason
of mental illness (see S v Skeyi 1981(4) SA 191 (E) ).
[16]
The mental illness is indicative of a pathological disturbance of the
accused’s mental capacity (See S v Skellmacher
1983 (2)SA 181
(SWA)).
[17]
Before a court can find that the accused is not fit to stand trial,
it has to receive a report under
section 79.
The court must
also be satisfied that some factual or medical basis has been laid
for the allegation. (See S v Mogorosi
1979 (2)SA 938 (A)).
[18]
Detention pursuant to
section 77(6)(a)
of the
Criminal Procedure Act,
is
an inroad on the liberty of an accused person. Such
detention should not be ordered unless the accused has been found
unfit
to stand trial in accordance with the procedure laid down in
section 79
of the
Criminal Procedure Act.
[19
]
Section 77
and
78
of the Criminal Procedure deal respectively with
fitness of an accused person to stand trial and criminal
responsibility where
one or more of these capacities is said to be
lacking on account of mental illness or defect. In either
instance, the accused
person must be referred for psychiatric
assessment which is governed by
section 79.
The
Mental Health Care Act 17 of 2002
[20]
Chapter V of the
Mental Health Care Act deals
with ‘voluntary,
assisted and involuntary mental health care’.
Section 37
of the Mental Health Care Act applies to so called ‘involuntary
mental health care user’. Ordinarily a
patient is
admitted to a psychiatric facility as an involuntary mental health
care user pursuant to an application under section
33.
[21]
Chapter VI of the
Mental Health Care Act deals
with ‘State
Patients’ ie persons who are ordered in terms of the
Criminal
Procedure Act to
be admitted as state patients. A person is
detained as a state patient remains in detention indefinitely until,
on application
made to a Judge in chambers in terms of
section 47
of
the
Mental Health Care Act, he
or she is discharged.
[22]
The Mental Health Review Board may decide that the mental health care
user should be discharged or may approve further involuntary
care.
[23]
The High Court has a discretion to order a person be detained as an
involuntary health care user in terms of
section 37
of the Mental
Health Act, or that the user should be released conditionally or
unconditionally.
The
detention order
[24]
In the absence of a proper enquiry by the court
a
quo
, the referral by the magistrate in
terms of
section 77(6)(a)(ii)
of the
Criminal Procedure Act, in
my
view should be decalred a nullity and set aside.
Direction
by the court in regard to the questions posed in paragraph [14] of
the judgment
[25]
The provisions of the
Mental Health Care Act cannot
be dispensed with
or superseded by the provisions of
section 77(6)(a)(ii)
of the
Criminal Procedure Act. In
my view they work in conjunction
with each other serving different purposes namely:-
(i)
The detention of persons under section 37
of the Mental Health Act caters for cases where persons are not
criminally charged for
any offences whereas
section 77(6)(a)(ii)
of
the
Criminal Procedure Act, provides
for referral of accused persons
who are charged for offences and are found unfit to stand trial.
(ii)
Where an institution is not specified in
the court order referring a person in terms of
section 77(6)(a)(ii)
of the
Criminal Procedure Act, the
Chairperson of the Mental Health
Review Board would be at liberty to select an institution which will
be in the best interest of
the mental health care user; without
reverting to the court.
(iii)
Where the Mental Health Review Board finds that the person referred
does not require involuntary care, treatment and rehabilitation,
an
application should be made to the High Court for the release of such
person.
(iv)
Where the referral is done in terms of
section 77(6)(a)(ii)
and the
mental health reports pursuant to the provisions of
section 79(3)
and
(4) of the
Criminal Procedure Act are
done, such reports must be sent
to the Mental Health care practitioners of the institution specified
in the referral in terms of
section 77(6)(ii)
of the
Criminal
Procedure Act.
Conclusion
:
[26]
In the premises, I propose that the order of the magistrate referring
the accused to Ngwelezane dated 27
th
November 2014 in terms of
section 77(6)(a)(ii)
of the
Criminal
Procedure Act be
set aside.
[27]
The application by the Chairperson of the Uthungulu Mental Health
Review Board to have the mental health care user, Jimmy Young,
be
kept and provided with care and treatment and rehabilitation services
until the said user has recovered or is otherwise legally
discharged,
is hereby granted in terms of
section 34(7)
(c) of the
Mental Health
Care Act 17 of 2002
.
[28]
I would propose that a copy of this judgment be forwarded to the
Office of the Director of Public Prosecutions, Kwazulu-Natal;
the
Chief Magistrate for the District of Empangeni and to the Chairperson
of the Uthungulu Mental Health Review Board.
_______________
MAHARAJ AJ
_______________
PILLAY J