Summary of Judgment

Introduction

The matter concerned review proceedings in the Eastern Cape Local Division, Bhisho, arising from criminal proceedings in the Magistrates’ Court, Whittlesea. The accused, Xolane Elvis Ralane, had been charged by the State with assault with intent to do grievous bodily harm.

The procedural history, as it emerged from the review record, was that the prosecutor and the accused’s legal representative were ad idem that the accused was not capable of understanding the proceedings so as to make a proper defence. This led to the invocation of the statutory procedure for psychiatric observation and reporting under the Criminal Procedure Act 51 of 1977.

After psychiatric reports were obtained from two psychiatrists, the magistrate concluded that there had not been compliance with the applicable statutory requirements for an enquiry in cases involving serious violence. Instead of directing compliance with those requirements, the magistrate made a detention order under section 77(6)(a) of the Criminal Procedure Act, linked to a decision by a judge in chambers under section 37 of the Mental Health Care Act. The matter then served before Van Zyl ADJP on review, who raised concerns about whether the correct statutory procedure had been followed. Those concerns prompted input from the Director of Public Prosecutions, Bhisho, and ultimately culminated in the present review judgment.

The general subject-matter of the dispute was the lawfulness and regularity of the magistrate’s approach to mental observation and reporting in a case where the charge was treated as involving serious violence, particularly the question whether the magistrate could proceed and make an order under section 77(6)(a) without the panel composition required by section 79(1)(b) having been satisfied.

Material Facts

It was alleged that on or about 22 October 2014, at or near Sada township, Hewu district, the accused unlawfully and intentionally assaulted the complainant, T M R, by stabbing her with a pair of scissors with intent to cause grievous bodily harm. The information before the court, including a J88 medico-legal report supported by affidavit, indicated that the accused inflicted five stab wounds on the complainant, who was described as the accused’s mother.

In the magistrates’ court, it was not in dispute between the prosecution and defence that the accused was not capable of understanding the proceedings sufficiently to mount a proper defence. In consequence, the parties accepted that the mechanisms under section 79 of the Criminal Procedure Act should be engaged, and the accused was referred for mental observation.

Following the observation, two psychiatric reports were produced and placed before the magistrate. The magistrate was not satisfied that these reports reflected compliance with section 79(1)(b) of the Criminal Procedure Act, a provision applicable where an accused is charged with an offence involving serious violence. Instead of ensuring that the section 79(1)(b) procedure was properly complied with, the magistrate made an order in terms of section 77(6)(a) of the Criminal Procedure Act directing that the accused be detained at Komani Hospital while awaiting trial, pending a decision by a judge in chambers under section 37 of the Mental Health Care Act, and until further lawful order.

On review, Van Zyl ADJP raised a concern that, given the nature of the charge (assault with intent to do grievous bodily harm), the accused ought to have been examined by a panel as contemplated by section 79(1)(b), and questioned whether the magistrate could make the section 77(6)(a)(ii) order “in light of the fact that the accused was charged with an offence involving serious violence.”

Legal Issues

The central legal questions were whether, in a case treated as involving serious violence, the magistrate was required to procure an enquiry and report compliant with section 79(1)(b) of the Criminal Procedure Act, including the prescribed composition of the panel, and whether non-compliance with that procedure rendered the subsequent proceedings and order irregular.

Closely connected to this was whether the magistrate could, after expressing dissatisfaction with compliance with section 79(1)(b), nonetheless proceed to make an order under section 77(6)(a) that effectively detained the accused pending further steps, without first ensuring proper compliance with the section 79(1)(b) mechanism.

The dispute was predominantly one of law and statutory compliance, namely the correct construction and application of section 79(1)(b) (and related provisions) to the procedural steps taken in the lower court, rather than a dispute of factual credibility or a value judgment on the merits of criminal liability.

Court’s Reasoning

The court approached the matter by identifying the statutory scheme applicable to mental observation and reporting. It set out the content of section 79(1)(b) of the Criminal Procedure Act as it applies to an accused charged with an offence involving serious violence. Under that provision, an enquiry must be reported on by specified mental health professionals, including (as relevant) a psychiatrist attached to a designated psychiatric hospital or appointed at the request of the court, a psychiatrist appointed by the court who is not a full-time State employee (unless otherwise directed upon application by the prosecutor in accordance with National Director directives), a psychiatrist appointed for the accused by the court, and, where directed, a clinical psychologist.

Relying on S v Booi Pedro and on what it described as a proper construction of section 79(1)(b), the court held that three psychiatrists, including a private psychiatrist, must be appointed when the case falls within section 79(1)(b), unless the court, upon application by the prosecutor, directs that a private psychiatrist need not be appointed. In that latter event, two psychiatrists would be required. The court treated this as a mandatory procedural requirement for matters within the scope of the section.

The court then addressed the practical explanation advanced by the Office of the Director of Public Prosecutions, Bhisho, namely that there was a paucity of psychiatrists in the region and that the Eastern Cape Director of Public Prosecutions had issued Circular 1 of 2005 (as amended on 14 July 2014) giving written authority to prosecutors to apply to court to dispense with a third psychiatrist in appropriate cases. The court did not treat this administrative context as removing the statutory requirement; instead, it treated it as relevant only to the statutory mechanism that allows a court to dispense with the third psychiatrist if the prosecutor applies for that dispensation and the court directs accordingly.

Applying those principles to the record, the court found that it did not reflect that the prosecutor had applied to dispense with the appointment of a third psychiatrist. Because the accused had been charged with an offence involving serious violence, the case called for the involvement of a third psychiatrist unless the court, upon proper prosecutorial application, directed otherwise. In the absence of such an application, the court concluded that the procedure followed by the magistrate “does not pass muster.”

On this basis, the court held that the proceedings conducted by the magistrate from 13 May 2015 onwards could not stand and had to be set aside, with the matter being remitted to ensure proper compliance with section 79(1)(b).

Outcome and Relief

The High Court set aside the proceedings conducted by the Whittlesea Magistrates’ Court on and after 13 May 2015.

The matter was remitted to the magistrate to be dealt with appropriately in terms of section 79(1)(b) of the Criminal Procedure Act 51 of 1977.

No separate costs order was described in the judgment.

Cases Cited

S v Booi Pedro (Unreported decision of the Western Cape Division, Cape Town by Binns-Ward et Rogers JJ delivered under High Court Ref No: 14228; Oudtshoorn Case No: B247/11 on 9 July 2014)

Legislation Cited

Criminal Procedure Act 51 of 1977, sections 77(6)(a) and 79(1)(b)

Mental Health Care Act 17 of 2002, section 37

Judicial Matters Amendment Act 66 of 2008, section 10(a)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, because the accused was charged with an offence involving serious violence, the enquiry and reporting procedure had to comply with section 79(1)(b) of the Criminal Procedure Act, which requires the appointment of three psychiatrists, including a private psychiatrist, unless a prosecutorial application is made and the court directs that a private psychiatrist need not be appointed.

It further held that the record did not show any prosecutorial application to dispense with the third psychiatrist. Consequently, the statutory requirements were not met and the procedure adopted by the magistrate was irregular.

As a result, the court set aside the magistrate’s proceedings conducted on and after 13 May 2015 and remitted the matter for proper handling in accordance with section 79(1)(b).

LEGAL PRINCIPLES

Section 79(1)(b) of the Criminal Procedure Act 51 of 1977 prescribes a mandatory panel composition for psychiatric enquiry and reporting in matters involving an offence characterised as involving serious violence, and the court must ensure compliance with that statutory scheme.

Where the statutory scheme allows the court to dispense with the appointment of a private psychiatrist, this may occur only upon application by the prosecutor and in accordance with applicable directives; absent such an application and direction, the default requirement of a panel including a private psychiatrist remains operative.

Non-compliance with the procedural requirements of section 79(1)(b) in a qualifying case constitutes an irregularity sufficient to justify the setting aside of the affected proceedings on review and the remittal of the matter for proper compliance.