Summary of Judgment

1. Introduction

This was a High Court review emanating from criminal proceedings in the Magistrates’ Court, Mdantsane. The matter concerned the procedural regularity of a magistrate’s decision to refer an accused for psychiatric observation and, following receipt of psychiatric reports, to order that the accused be dealt with as a state patient under mental health legislation.

The parties were the State as prosecutor and Thembalakhe Maphuko as the accused person. The review came before the Eastern Cape Local Division, Bhisho, after the magistrate had made findings relating to the accused’s ability to understand the proceedings and his criminal responsibility, and had made an order for detention pending a judge’s decision in chambers. When the file served before the High Court, Lowe J raised specific procedural questions regarding whether the accused had been correctly dealt with under section 77 or section 78 of the Criminal Procedure Act 51 of 1977 (“CPA”), whether the correct subsections were invoked given that the offence did not involve serious violence, and why it was necessary “in the public interest” to proceed as was done. The High Court also obtained input from the Director of Public Prosecutions, Bhisho.

The general subject-matter of the dispute was the proper statutory procedure for mental observation and reporting under sections 77, 78 and 79 of the CPA, and whether the psychiatric panel was properly constituted where the case fell within the ambit of section 79(1)(b).

2. Material Facts

The accused was charged in the Mdantsane Magistrates’ Court with contravening section 17(a) read with sections 1, 5, 6, 7 and 17 of the Domestic Violence Act 116 of 1998. The allegation was that he wrongfully and unlawfully contravened a prohibition and/or order by entering the complainant’s residence, insulting the complainant and family members by calling them witches, and threatening to kill the complainant. He pleaded not guilty and made certain admissions at the commencement of the trial. The State led the evidence of the complainant and then closed its case, after which the accused was put to his defence.

While the accused was still testifying, the magistrate formed the view that the accused might not be capable of understanding the proceedings. The magistrate’s observations (as recorded) included that the accused repeatedly went off on irrelevant issues (including events from 2001), followed disconnected “threads” of testimony, contradicted himself, often did not make sense, displayed emotional outbursts, and referred to prior psychiatric treatment. On that basis the magistrate indicated that the matter fell within the realm of section 78 of the CPA and that a referral for mental observation could follow, with possible detention at Fort England Hospital.

The magistrate then referred the accused to Fort England Hospital for mental observation for 30 days. Although the referral was described as being under section 78 of the CPA, the warrant for removal referred to sections 77(1) and 78(2) of the CPA.

When proceedings resumed, a report compiled by two psychiatrists (Prof M Nagdee and Dr H Jordaan) was served before the magistrate. The report recommended, due to a history of assaultive behaviour and an unfavourable risk profile when mentally ill, that the accused be admitted to Fort England Hospital as a state patient (the report referred to “section 42” of the Mental Care Act, which the magistrate regarded as an inadvertence).

There was debate between the prosecution and the defence about the appropriate procedure following the report. Ultimately, the magistrate made findings, including that the accused had committed the offence, was not capable of understanding the proceedings so as to make a proper defence, and was unable to appreciate the wrongfulness of his actions at the time. The magistrate then gave effect to the recommendation by ordering that the accused be admitted as a state patient in terms of section 47 of the Mental Health Care Act 17 of 2002, and ordered detention pending a decision of a judge in chambers in a psychiatric hospital or prison. The magistrate further stated, with reference to section 77(6)(a)(ii)(bb) of the CPA, that the accused was not entitled to a judgment in terms of section 106(4) of the CPA.

A key fact for the review was that the psychiatric report placed before the magistrate was produced by two psychiatrists, and the record did not reflect that the prosecutor applied to the court to dispense with the appointment of a third psychiatrist in circumstances where section 79(1)(b) might require a differently constituted panel.

3. Legal Issues

The central legal questions were concerned with the correct statutory route and procedure for dealing with an accused where mental illness or mental defect is suspected, and the consequences of non-compliance with the prescribed procedure.

The High Court was required to determine, in substance, whether the accused was dealt with correctly under section 77 or section 78 of the CPA, given that section 77 concerns capacity to understand proceedings and section 78 concerns criminal responsibility. This required an assessment of the application of legal provisions to the procedural facts reflected on the record.

A second and decisive issue was whether, on the facts, the matter fell within section 79(1)(b) of the CPA, and if so whether the psychiatric panel was properly constituted in compliance with that section (including whether the statutory requirement of three psychiatrists could be reduced to two only upon an application by the prosecutor and a direction by the court). This was primarily an issue of law and procedural compliance, applied to the facts of how the observation and reporting were conducted.

A further issue raised in the review queries, and addressed in the judgment’s reasoning, was whether the fact that the offence did not involve serious violence prevented reliance on section 79(1)(b), or whether the “public interest” component of that provision could still justify invoking it.

4. Court’s Reasoning

The High Court approached the matter through the structure of the CPA provisions governing mental capacity and criminal responsibility.

It restated that section 77(1) of the CPA applies where it appears at any stage of criminal proceedings that the accused is, by reason of mental illness or mental defect, not capable of understanding the proceedings so as to make a proper defence, in which event the court must direct that the matter be inquired into and reported on in accordance with section 79. The court noted that section 78(2) is to similar effect but addresses criminal responsibility.

On the record, the High Court considered that the accused was correctly referred for mental observation, and that there had been substantial compliance with section 77(1) insofar as it contemplates an enquiry where the accused appears not capable of understanding the proceedings due to mental illness or defect. Although the magistrate initially referred to section 78, the documentation also referenced section 77, and the High Court did not treat the referral decision itself as the fatal irregularity.

The High Court then focused on whether the matter was “correctly reported on” in terms of section 79. It identified that the offence was not one involving serious violence, but emphasised that section 79(1)(b) is not confined only to serious violence matters; it also applies where the court considers it necessary “in the public interest” or where the court in a particular case so directs. The court expressly held that the ambit of section 79(1)(b) is sufficiently wide to include such instances beyond serious violence charges.

The decisive reasoning concerned the composition of the psychiatric panel required under section 79(1)(b). Relying on the authority of S v Booi Pedro and on a construction of section 79(1)(b), the High Court stated that three psychiatrists, including a private psychiatrist, must be appointed when a case falls within the section, unless the court, upon application by the prosecutor, directs that a private psychiatrist need not be appointed, in which event there must be two psychiatrists. The court noted information from the Office of the Director of Public Prosecutions, Bhisho, pointing to a scarcity of psychiatrists in the region and the existence of a prosecutorial circular authorising prosecutors to apply to dispense with a third psychiatrist in appropriate cases. However, the High Court emphasised that the statutory relaxation to a two-person panel depends on the prosecutor actually requesting such dispensation and the court directing accordingly.

On reading the record, the High Court found nothing indicating that the prosecutor requested the court to dispense with the third psychiatrist. As a result, the court concluded that the panel was not correctly constituted in accordance with section 79(1)(b). That procedural defect meant the magistrate could not properly declare the accused a state patient on the basis of the improperly constituted reporting process.

While setting aside what had occurred, the High Court nonetheless considered whether there were grounds for the magistrate to have invoked section 79(1)(b) despite the absence of serious violence. It held that there were ample grounds for the magistrate to regard it as necessary in the public interest, referencing the accused’s prior psychiatric treatment, indications that the facts reflected a continuous problem affecting the accused and his family rather than a once-off incident, and the significance of the doctors’ recommendation for state patient admission. This reasoning did not validate the procedure followed, but explained why resort to section 79(1)(b) was not inherently inappropriate on the merits of invoking that provision.

5. Outcome and Relief

The High Court set aside the proceedings conducted in the Mdantsane Magistrates’ Court on and after 13 March 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 specific costs order was recorded in the judgment.

Cases Cited

S v Booi Pedro (Unreported decision of the Western Cape Division, Cape Town, per Binns-Ward and Rogers JJ, delivered under High Court ref no. 14229, Oudtshoorn Case No. B247/11, 9 July 2014).

S v Xolani Elvis Ralane (Review judgment of the Eastern Cape High Court, delivered under review case no. A222/14, 21 July 2015).

Legislation Cited

Domestic Violence Act 116 of 1998 (section 17(a) read with sections 1, 5, 6, 7 and 17).

Criminal Procedure Act 51 of 1977 (sections 77(1), 77(6)(a)(ii)(bb), 78(2), 79(1)(b), 106(4)).

Mental Health Care Act 17 of 2002 (section 47).

Judicial Matters Amendment Act 66 of 2008 (section 10(a), amending section 79(1)(b) of the Criminal Procedure Act 51 of 1977).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that, although the referral for mental observation substantially complied with section 77(1) of the CPA in the circumstances, the subsequent reporting process did not comply with section 79(1)(b) because the psychiatric panel was not properly constituted.

It held further that, where section 79(1)(b) applies, the default requirement is a panel including three psychiatrists (including a private psychiatrist), unless the prosecutor applies for dispensation and the court directs otherwise, in which case two psychiatrists may suffice. Because the record did not show an application by the prosecutor to dispense with a third psychiatrist, the panel was defective, and the magistrate could not declare the accused a state patient on that basis.

The proceedings from and after 13 March 2015 were accordingly set aside and the matter remitted for proper handling under section 79(1)(b).

LEGAL PRINCIPLES

The judgment applied the principle that where a court has doubt about an accused’s mental capacity to understand proceedings, section 77(1) of the Criminal Procedure Act 51 of 1977 requires that the matter be directed into an enquiry and reported on under section 79, and that questions of criminal responsibility are addressed under section 78.

It further applied the principle that section 79(1)(b) has an ambit extending beyond offences involving serious violence and includes cases where the court considers it necessary in the public interest or where the court directs it in a particular case.

A central procedural principle applied was that, for matters falling under section 79(1)(b), the psychiatric panel must be constituted as contemplated by the statute and relevant authority: ordinarily three psychiatrists including a private psychiatrist are required, and a reduction to two psychiatrists is permissible only where there is a prosecutorial application for dispensation and a corresponding direction by the court. Non-compliance with this requirement renders subsequent orders reliant on the defective report procedurally unsustainable, including an order declaring the accused a state patient.