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[2015] ZAECBHC 44
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S v Dlali (3/2015) [2015] ZAECBHC 44 (27 February 2015)

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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
BHISHO
CASE NO:
3/2015
NOT REPORTABLE
In
the matter between
THE
STATE
versus
MXOLISI
DLALI
REVIEW JUDGMENT
HARTLE
J
1.
The
matter came before me as a routine review.
[1]
It concerns the purported issue of a direction by the magistrate in
Whittlesea that the accused person be detained as a state
patient
pending the decision of a judge in chambers in terms of section 47 of
the Mental Health Care Act, No 17 of 2002 (“MHCA”).
2.
The accused was charged with assault common
committed on 12 June 2013.
3.
On 17 June 2014 the prosecutor placed on
record that he “has (a) history of mental illness”.
He was remanded in
custody then and on several subsequent dates for
“bed space” at the Fort England Psychiatric Hospital in
anticipation
of being referred for “psychiatric observation”.
4.
Without any indication as to the objective
for the referral being stated on the record on 8 October 2014 the
accused was  referred
to Fort England on the application of the
prosecutor “for assessment” for the statutory period of
thirty days.
5.
The record contains no copy of the relevant
warrant issued at the time; neither does it appear that the court
issued any direction,
whether in terms of sections 77(1) or 78(2) of
the Criminal Procedure Act, No 51 of 1977 (‘CPA”)
constituting the necessary
basis for a section 79 enquiry.
6.
The accused appeared again on 4 November
2014 and was remanded in custody on several further dates, this time
for the decision of
the Deputy Director of Public Prosecutions, and
on two further dates in January 2015 for “an inquiry in terms
of
section 77
of the
Criminal Procedure Act&rdquo
;.  This
enquiry ultimately ensued on 28 January 2015.
7.
Before I turn to deal with what happened on
this date, a copy of the “decision” of the Deputy
Director of Public Prosecution,
Bhisho, addressed to the “Control
Prosecutor” dated 27 November 2014 is attached to the J15,
although given no context
in the record.  The practice appears
to be that the prosecutor produces this document as confirmation of
the State’s
attitude once the psychiatric report comes to hand
in order to guide the prosecutor in the submissions which he or she
is required
to make in taking the matter forward.  Invariably it
forms part of the record and as I say attests to the State’s
stance,
but it should be merely supplementary to the magistrate’s
own notes on the record as to what submissions were made by the

parties concerning the findings of the examining panel expressed in
the report. In this instance the magistrate gives no indication
in
the record whatsoever as to whether the psychiatric report was
accepted or contested by either of them.
8.
The content of the report is repeated
below:
“
OBSERVATION
PATIENT: MXOLISI DLALI
1.
The
psychiatric report indicates that the accused is mentally ill or
defective and that he is incapable of standing trial for the
accused
is mentally ill or defective and that he is incapable of standing
trial and/or not criminally responsible for the offence
of Assault
(sic).
[2]
2.
The report should be submitted to the Court in terms of
Section 77(2)
of the
Criminal Procedure Act 51 of 1977
.
3.
If the Court finds that the accused is not capable of understanding
the proceedings,
as to make a proper defense, kindly:-
request
the Court to make a finding on whether the accused committed the
act in question, and for that purpose inform the Court
what
evidence is available in the docket linking the accused to the
offence, in order to enable the Court to determine whether
the
accused committed the act; and
submit
to the Court that, since it is necessary in the public interest, to
direct that the accused be detained (at the) Komani
hospital OR
prison pending the decision by a Judge in chambers.
4.
Please take note that the accused must be legally represented during
the enquiry
held in terms of
Section 77
of the
Criminal Procedure
Act, No. 51 of 1977
.
[See S v Matu 2012(1) SACR 68 (ECB)]
5.
Find a copy of a draft order attached hereto for the use and
convenience of the
magistrate.”
9.
The “draft order” referred to
in the Director of Public Prosecution’s decision is attached to
the J15 and reads
as follows:
“
ORDER
IN TERMS OF
SECTION 77(6)
(a) (i)
OF THE
CRIMINAL
PROCEDURE ACT, NO. 51 OF 1977
[ACCUSED NOT CAPABLE
OF UNDERSTANDING THE
PROCEEDINGS DUE TO
MENTAL ILLNESS OR MENTAL
DEFECT (VIOLENT ACTS)]
CASE NO. 57/14
THE STATE versus
MXOLISI DLALI
To :
The Superintendent, Komani Hospital, Queenstown
WHEREAS
the court found that
MXOLISI
DLALI
, who is awaiting trial on a
charge of
Assault
,
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 act in question to wit:
[ ]
Murder
[ ]
Culpable Homicide
[ ]
Rape
[ ]
Any offence involving serious violence or
[ ]
Necessary in the public interest
THEREFORE a court order
is hereby granted to detain the said
MXOLISI DLALI
pending the
decision of a judge in chamber in terms of
section 47
of the
Mental
Health Care Act, Act
17/2002 until a further lawful order is given
for his disposal.”
10.
The copy in the court file was dated and
signed by the magistrate on 28 January 2015. She did so mechanically.
I say so because
no selection was made by her on the template order
concerning the options indicated therein - put forward as
suggestions, despite
an instruction at the foot thereof to delete the
inapplicable options. The inappropriate syntax was also simply
glossed over.
11.
The psychiatric report records the result
of the enquiry in terms of
section 79
of the CPA in the following
terms:
“
The
purpose of the enquiry was a psychiatric evaluation, in accordance
with the provisions of
Section 79
of the
Criminal Procedure Act, Act
51 of 1977, as amended, of:
NAME OF ACCUSED
:
Dlali Mxolisi
AGE

:           43
years
CHARGE

:           Assault
CASE NUMBER

:
B122/14
HOSPITAL NUMBER
:
MO 367/14
SECTION
79(1)
:
PANEL FOR
THE PURPOSE OF ENQUIRY AND REPORT
Dr.
W. Esterhuysen
(Psychiatrist)
Dr.
H. Loffstadt
(Psychiatrist)
We, the panel members,
hereby declare that we are duly registered with the Health
Professions Council of South Africa and that we
examined the accused
at Fort England
Hospital during the
period 8 October 2014 to 31 October 2014.  We held discussions
and report as follows:
SECTION
79(4)
:
NATURE OF
ENQUIRY
The accused was admitted
to Fort England on 08 Oct 2014, following an order made by the
Magistrate of Whittlesea in accordance with
the provisions of
Section
79(2)
of Act 51/77, dated 08 Oct 2014.  During the period of
observation at Fort England Hospital, the accused had psychiatric
interviews,
physical and neurological examinations, blood tests and
was kept under constant observation by the psychiatric nursing
staff.
Reference was made to the prosecutor’s report.
SECTION 79(4)(b)
:           DIAGNOSIS
Axis I  :
Psychotic
Disorder not otherwise specified
Alcohol
Abuse
Axis II :
Defer
Axis III :
[….]
SECTION 79(4)(c)
:           ABILITY TO
FOLLOW COURT PROCEEDINGS
The accused is unable to
follow court proceedings so as to make a proper defence.
SECTION 79(4)(d)
:
RESPONSIBILITY
At the time of the
alleged offence, the accused was able to appreciate the wrongfulness
of the act in question, and able to act
in accordance with such
appreciation of wrongfulness.
RECOMMENDATION
It is respectfully
recommended that the accused be admitted to Komani Hospital as a
State Prison in terms of
Section 42
of the
Mental Health Care Act.”
­
12.
The report is signed by the two
psychiatrists and is dated 31 October 2014.
13.
To
return to the court’s enquiry on 28 January 2015, the purpose
recorded in the transcript is limited to “make a finding

whether the accused person committed the act in question and for the
Court to decide whether there is any evidence that (is) linking
the
accused person to the offence”.  No reason is given why
the enquiry was considered necessary in the circumstances.
[3]
Further, no prior finding was recorded by the magistrate concerning
the accused’s fitness to stand trial, which appears
to be a
pre-requisite before conducting an enquiry into the facts
[4]
.
14.
At the enquiry the complainant (the
accused’s mother) testified that the accused had demanded money
from her on 12 June 2014.
She had none to give him.  She
sought to borrow money from someone as per the accused’s
instructions.  When this
request turned up empty and she
informed him, the accused struck her with an open hand.  When
she challenged why he was hitting
her, he struck her a second time
and she fell to the ground.  In the process she bit herself and
bled.  Someone else
present intervened to stop the accused from
further assaulting her.  He was arrested the following day
because, so she explained,
the accused “ran”.
15.
The
facts enquiry went unchallenged (the defence attorney asked no
questions)
[5]
, and without
inviting any further submissions from the parties, the magistrate
concluded that there was a “prima facie case”
against the
accused.
16.
Again without inviting submissions from the
state or the accused as to whether the more serious direction
referred to in
section 77(6)(a)(i)
rather than subsection (ii)(aa)
was indicated (especially since the charge was one of assault
common), and without furnishing any
reasons in this regard, she ruled
that “the accused … be detained in Komani Hospital
pending the decision of the Judge
in Chambers in terms of
section 47
of the
Mental Health Care Act until
a further lawful order is given
for his disposal”.  This “ruling” co-incides
with the draft order referred
to in paragraph 9 above, placed at her
disposal for her convenience and to which she appended her signature
as I said before without
ostensibly giving the matter any proper
thought.
17.
The court’s handling of this matter
from the outset to the date of the issue of the purported directive
is perturbing in a
number of respects.
18.
There
is no indication other than the reference in the record to the
accused’s history of mental illness to discern the basis
for
the ordering of the
section 79
enquiry in the first place.  The
criterion for fitness to stand trial is whether the accused is “by
reason of mental
illness or mental defect not capable of
understanding the proceedings so as to make a proper defence”.
[6]
This concerns the question whether at the time of consideration he
lacks fitness to stand trial. The criterion for criminal

responsibility, assessed at the time of the commission or omission of
the offence, is provided for in
section 78.
Before a court can
refer an accused for observation whether in terms of
section 77
(1)
or
78
(2), it must be satisfied as to the existence of a factual or
medical basis for the allegations of lack of fitness to stand trial

and or of criminal incapacity.
[7]
19.
The record in this instance suffers from a
dearth of information.  It fails to elucidate or give any
context or significance
to the issue of the accused’s so-called
mental history.  The prosecutor ostensibly failed to say more
than what is recorded
in the J15.  No discussion appears to have
been pursued in this regard and certainly no input appears to have
come from the
accused’s legal representative concerning whether
she was, for example, able to elicit proper instructions from him
and/or
whether he could meaningfully participate in or follow the
court proceedings.  It should appear from the record that a
reasonable
possibility exists on an objective consideration of all
the information placed before the court that an inquiry is called
for.
A referral in itself holds serious consequences for an accused
and it follows in my view that it should be transparent that a proper

and relevant reason exists to invoke the provisions of
section 77(1)
or
section 78(2)
, or both, in the particular circumstances of the
matter.
20.
The court must then make its direction,
either in terms of
section 77
(1) or
78
(2), or both, because this is
the necessary jurisdictional basis for the relevant enquiry in terms
of
section 79
(1) to be conducted and reported on.
21.
It is also necessary for reasons of
transparency which I refer to above that the specific objective of
the enquiry be clearly stated.
In this instance the panel ostensibly
concerned itself with issues of both triability and criminal
capacity.  With hindsight
one can say that the referral was
perhaps objectively justified on both bases because “mental
illness” was at the root
of the accused’s inability to
understand the proceedings or to act with the requisite criminal
capacity, but this should
not be left to fathom by those examining
the accused.
22.
Further,
a distinction is to be drawn between a referral expected to result in
the issue of a direction in terms of
section 77(6)(a)(i)
as opposed
to  one in terms of subsection (ii) (aa).  In the former
case the court is obliged to receive a report under
section 79(1)(b)
from a plenary panel (although not necessarily including a
psychologist except where the court so directs), whereas in respect

of the latter the report of a single psychiatrist under
section
79(1)(a)
will suffice.  In this regard it appears that except
where the accused is charged with the listed crimes, i.e. murder or
culpable
homicide or rape or compelled rape, or another charge
involving serious violence, the court must also give consideration to
the
question whether a plenary panel should enquire into and report
on the issue of the accused’s fitness to stand trial or his

criminal responsibility, as the case may be, in accordance with the
provisions of
section 79
on the basis that the court considers it to
be  necessary in the public interest that the more serious
direction that the
accused be detained as a state patient ultimately
be issued.
[8]
23.
Given
the absence of any firm indication of the reason for or objective to
be attained by the referral in this particular instance,
it was not
surprising that the panel was not constituted as it ought to have
been for the relevant order which the court ultimately
purported to
grant.  As it turned out only two psychiatrists examined the
accused whereas he ought to have been interviewed
in accordance with
the requirements of
section 79(1)(b).
This entails at the
very least a three member panel of suitably qualified psychiatrists
including one appointed for
the accused by the court.  Absent
such an enquiry, peremptory in terms of
section 77(1)
read with
section s79(1)
, the court was therefore not empowered to act in terms
of
section 77(6)(a)(ii)
by issuing the order which it did and this on
its own constitutes a gross irregularity in the circumstances.
[9]
24.
The accused was charged with assault
common.  I make no comment whether the matter could not have
been concluded on the basis
provided for in
section 77(6)(ii)(aa)
on
the strength of the psychiatric report as it presently stands, but
the state obviously had its brief to pursue the detention
of the
accused on the basis of
section 42
, read with
section 47
,  of
the
Mental Health Care Act instead
.
25.
A further glaring irregularity is that the
court made no finding on the issue whether the accused was capable of
understanding the
proceedings due to mental illness or defect, an
obvious prerequisite before he could be detained, whether as a state
patient or
an involuntary mental health care user.
26.
The
magistrate appears further to have floundered generally in respect of
the required processes and oversight.  She failed,
for example
once the psychiatric report was to hand, to determine (or at least to
record) what the stance was of the State
[10]
and the defence in respect thereof (assuming it to be compliant with
the provisions of provisions 79 (1)), and more particularly
whether
it was disputed.
[11]
This is a necessary question to be asked, the reply to which might
involve the leading of further evidence before the determination
as
to the accused’s fitness to stand trial can be made.
27.
I have remarked above too on her failure to
receive submissions at the appropriate times when these were
indicated. I mention in
this regard that she appears to have blindly
followed the recommendation of the Director of Public Prosecution in
issuing her direction
which she ultimately purported to without
applying her mind independently or even canvassing the views of the
parties.
28.
I
repeat the guidelines outlined in S v Matu,
[12]
in applying the provisions of
section 77
with the added caveat that
the relevant directions in terms of
section 77(1)
or
section 78(2)
(or both) should be recorded on the file and that care should also be
taken to ensure that the correct warrant is issued to the

superintendent of the relevant institution concerning the nature of
the enquiry in terms of
section 79(1)
to be undertaken.  If any
doubt exists concerning the nature of the charge and/or whether it is
one that culminates in a direction
that the accused should be
detained as a state patient rather than as an involuntary mental
health care patient, this aspect should
be properly ventilated and a
firm indication given in this regard that the proper panel be
appointed.
29.
In
this matter the accused was represented by an attorney.  In S v
Matu
[13]
I stressed both the
desirability and necessity for such representation in matters such as
these.  My reference to the anticipated
“perfunctory”
involvement of a practitioner in that judgment was premised on the
inevitability of the processes which
would follow once the matter was
remitted to the court in question, but that should not be taken to
mean that anything but meaningful
representation should be afforded
to an accused who finds himself subjected to the very complex
provisions of Chapter 13 of the
CPA.
30.
It
is regrettable that the practitioner in this instance appeared to
adopt such a lackluster approach in safeguarding the accused’s

interests
[14]
.
31.
Seemingly no input was offered by her
either at the interval when it was determined that a jurisdictional
basis existed to order
an investigation in terms of
section 79
(whether on the grounds set forth in
section 77
(1) or 78(2) of the
CPA), or when the psychiatric report came to hand (whether in respect
of the aspect of its compliance with the
provisions of
section
79(1)(b)
or its merits).  She also made no submissions at the
juncture when the magistrate had to determine which direction it was
appropriate to issue in the circumstances.  The matter could
also have been concluded with greater alacrity it not being readily

apparent why the determination and issue of a direction was delayed
so substantially despite the psychiatric report being made
available
on 31 October 2014 already.
32.
I cannot imagine a more vulnerable category
of accused persons than those subject to the provisions of Chapter
13.
33.
Such
an accused person is present in court yet possibly mentally absent,
particularly if he cannot instruct his legal representative
or
meaningfully participate in the court proceedings.
He is displaced to a foreign environment in a psychiatric
hospital
where he is subjected to an enquiry of a different kind (before a
“trial” on the facts is undertaken to determine
if he
probably perpetrated the crime)
[15]
,
the relevance of which may have no significance to him (yet infringe
upon his fair trial rights), by an array of professionals
he has no
affinity with.  This is an experience which in itself must be
anxiety provoking.  Thereupon the court may issue
an order
appointing him as a state patient which has potentially serious
consequences but which might not be warranted in all the

circumstances (especially if the charge is in respect of a petty
offence) or be more damning than if he were just convicted and

sentenced in the ordinary course.
34.
In
S v Siko
[16]
the court pointed
out that it is more complicated to secure a state patient’s
discharge in terms of
section 47
of the
Mental Health Care Act than
the discharge of an involuntary patient as provided for in
section 37
of the same act.  The directive is also not automatically
reviewable, neither is the oversight afforded to the state patient
by
a judge in chambers in terms of
section 47
of the
Mental Health Care
Act tantamount
to such a review.
35.
The fact that an accused in respect of whom
a direction in terms of
section 77(6)(a)(i)
has been made has
the right to appeal against it, is cold comfort for one who has been
declared unfit to stand trial and
who may well, because of the very
jurisdictional fact justifying the referral in the first place, not
appreciate the meaning and
extent of such right.
36.
The potentially serious prejudice to the
accused affected by the provisions of Chapter 13 of the CPA
accordingly demonstrates the
absolute need by a legal practitioner to
be vigilant in ensuring that his or her fair trial rights are
respected throughout the
process and properly weighed against the
need to protect the community from mentally ill members of society
who brush with the
law.
37.
In
summary the detention order issued by the magistrate falls to be set
aside and the matter remitted to the court to be appropriately
dealt
with.  Being mindful that the state had cause to approach the
court on the basis that the accused had committed an act
in respect
of which it was “necessary in the public interest” to
have him detained as a state patient as a consequence
I consider it
prudent, as the court did in S v Siko,
[17]
to have him detained in the meantime at the Komani Hospital as if he
were an involuntary mental health care user pending the finalisation

of the matter.
38.
In the premises I issue the following
order:
38.1
The finding and purported direction of the
magistrate dated 28 January 2015 are hereby set aside.
38.2
The matter is referred back to the
magistrate’s court to be dealt with appropriately in terms of
the provisions of Chapter
13 of the
Criminal Procedure Act, No. 51 of
1977
and the corresponding relevant provisions of the
Mental Health
Care Act, No. 17 of 2002
.
38.3
Pending the remission of the matter, the
accused is to be detained at the Komani Hospital, Queenstown, as if
he were an involuntary
mental health care user as contemplated by the
provisions of
section 37
of the
Mental Health Care Act, No. 17 of
2002
.
B  HARTLE
JUDGE OF THE HIGH
COURT
I AGREE
D VAN ZYL
JUDGE OF THE HIGH
COURT
DATE OF JUDGMENT:
27 FEBRUARY 2015
[1]
The clerk of the court referred the matter on the basis provided for
in section 302(1) (a) (i) of the Criminal Procedure Act,
No. 51 of
1977 (“CPA”) no doubt because of the recent appointment
of the magistrate.  This section is not applicable,
however,
since there was no “sentence imposed” by her. (See S v
Blaauw
1980 (1) SA 536
(C) and S v Zondi
2012 (2) SACR 445
(KZP)).
Neither for that matter are the review procedures in terms of
sections 302 (4) or 304A of the CPA applicable because
a person who
is detained pursuant to the provisions of section 77 (6)  is
not “convicted” in the ordinary sense
of the word,
neither does he fall to be sentenced pursuant to the section 77 (6)
direction. Nonetheless this court can exercise
its review discretion
in terms of
sections 21
and
22
of the
Superior Courts Act, No. 10 of
2013
.
[2]
It is a misstatement that the examining panel found the accused not
to be criminally responsible at the time of the commission
of the
offence.  For the rest this paragraph is gibberish.
[3]
The
enquiry is only held if the court is the view that it would be in
the accused’s interest that one be held
(S77
(6)). That would
be the case, for example, where doubt exists that he was involved in
the commission of the offence.  Perhaps
it was not so clear in
this case that there was probably a
prima
facie
case against the accused based on the information at everyone’s
disposal, but the magistrate gives no inkling why she thought
it
necessary to hold such an enquiry. One gains the distinct impression
from the exercise, however, that she perceived this enquiry
to be
the single determining factor in the matter whilst glossing over
other requirements and necessary enquiries in the Chapter
13
trajectory.
[4]
See
the introduction to
section 77(6)
(a) which follows if a finding in
terms of subsection (5) is not made.
[5]
This
suggests that they parties were likely in agreement that it could be
proved on a balance of probabilities that on the limited
evidence
available the accused committed the act in question.
[6]
Section 77(1).
[7]
S
v Mogorosi
1979 (2) SA 938
(A) at 941H – 942B; S v Makoka
1979
(2) SA 933
(A) at 937 B – H.
[8]
It
appears that the court may in considering who is required to conduct
the relevant enquiry and report on the matter simply direct
that a
full panel be appointed anyway. The last ground on which a plenary
panel may be appointed under
section 79
(1) (b) is “….or
where the court in any particular case so directs – “
Given the prohibitive cost
of a referral and the logistics of
putting together a plenary panel (not to mention the imposition to
the accused being subjected
to the enquiry), a court should be
astute at the time of ordering the referral to consider whether the
need is justified and,
if necessary, to hear argument in this
regard.  The appointment of a plenary panel must in my view be
properly justified
with the end objective in sight and not just
routinely ordered.
[9]
S v Siko
2010 (2) SACR 406
(ECB) at paragraphs [9] and [10].
[10]
The decision of the Director of Public Prosecution suggests the
attitude of the state which the court ought to have questioned
at
least in respect of the mistaken impression set forth in the
document that the panel had found that the accused was not

criminally responsible at the time of the commission of the
offence.  Either this was a typographical error in the
document,
or it should have evoked a discussion around the question
whether an order in term of
section 78
(6) was necessary in the
circumstances. This oversight confirms to my mind that the
magistrate was simply going through the motions
without applying her
mind along the way.
[11]
See
section 77
(2).
[12]
2012 (1) SACR 68
(ECD) at para [29].
[13]
(supra at par [28]).
[14]
I
immediately concede that it may only appear so because of the
absence of any recording by the magistrate at the various intervals

of any interaction with the parties before her.
[15]
In
my view it would be more constitutionally sound to conduct the
limited enquiry into the facts, if there is any doubt that the

accused committed the offence, before rather than after the referral
and finding concerning his capacity to stand trial is made.
[16]
2010 (2) SACR 406
ECB.
[17]
Supra.