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[2015] ZAECBHC 42
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S v Ralane (A222/14) [2015] ZAECBHC 42 (21 July 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
REVIEW
CASE NO: A222/14
In
the matter between:
THE
STATE
and
XOLANE
ELVIS RALANE
REVIEW
JUDGMENT
MBENENGE
J
:
[1]
The accused stood charged before the Magistrate, Whittlesea with
assault to do grievous bodily harm, it being alleged that on
or about
22 October 2014 and at or near Sada township, Hewu district, he (the
accused) unlawfully and intentionally assaulted T.
M. R. by stabbing
her with a pair of scissors with the intent of causing her grievous
bodily harm. The information and evidence
placed before Court,
including a J88 medico leg.al report under cover of the relevant
affidavit, pointed to the accused as having
inflicted five stab
wounds on his 83 year old [...], the complainant.
[2]
Both the prosecutor and the accused’s legal representative were
in agreement that the accused was not capable of understanding
the
proceedings so as to make a proper defence. Consequently, the
provisions of section 79 of the Criminal Procedure Act
51 of 1977
(the CPA) were invoked, culminating in the accused being referred for
mental observation.
[3]
Reports compiled by 2 psychiatrists were subsequently generated and
served before the Magistrate. Not being satisfied
that there
was compliance with the provisions of section 79(1)(b) of the CPA,
the Magistrate ordered, in terms of section 77(6)(a)
of the CPA, that
the accused be detained at the Komani Hospital “
whilst
awaiting trial on a charge of assault with intent to do grievous
bodily harm, pending the decision of the Judge in chambers
in terms
of section 37 of the Mental Health Care Act until a further lawful
order is given for his disposal.”
[4]
When the matter came before Van Zyl ADJP on review, he remarked as
follows:
“
Having
been charged with assault with the intent to do grievous bodily harm,
should the accused not have been examined by a panel
as provided for
in
section 29(1)(b)
of the
Criminal Procedure Act? If
so, how
does that affect the proceedings conducted by the Magistrate and his
findings made thereat? It would appear that
the Magistrate was
of the view that the report did not comply with that section as
contended on behalf of the accused, and then
made the order in terms
of
section 77(6)(a)(ii)
instead. Could he do that in light of
the fact that the accused was charged with an offence involving
serious violence?”
[5]
The remarks were directed at and attracted the views of the Director
of Public Prosecutions, Bhisho for which this Court is
grateful.
[6]
Section 79(1)(b)
of the CPA
[1]
,
insofar as it relates to an accused charged with an offence involving
serious violence, makes provision for the conducting of
an enquiry
reported on by –
(a)
the medical superintend of a psychiatric hospital designated by the
court, or by a psychiatrist appointed
by the medical superintendent
at the request of the court;
(b)
a psychiatrist appointed by the court and who is not in the full-time
service of the State unless the court
directs otherwise, upon
application of the prosecutor, in accordance with directives issued
under subsection (13) by the National
Director of Public
Prosecutions;
(c)
by a psychiatrist appointed for the accused by the court; and
(d)
by a clinical psychologist where the court so directs.
[2]
[7]
On the authority of
S
v Booi Pedro
,
[3]
and indeed upon a proper construction of
section 79(1)(b)
, three
psychiatrists, including a private psychiatrist, must be appointed
when the case falls within the section, unless the court,
upon
application by the prosecutor, directs that a private psychiatrist
need not be appointed, in which case there must be two
psychiatrists.
[4]
[8]
The Office of the Director of Public Prosecutions, Bhisho has, in its
helpful response made pursuant to the remarks quoted above,
pointed
out that there is a paucity of psychiatrists in this region, hence
the Eastern Cape Director of Public Prosecutions has,
by circular 1
of 2005 (as amended on 14 July 2014) given written authority to all
prosecutors to apply to the court to dispense
with a third
psychiatrist in cases where a third psychiatrist would otherwise form
part of the panel.
[5]
[9]
The record in the instant proceedings does not point to the
prosecutor as having applied to the court to dispense with a third
psychiatrist. The procedure followed by the Magistrate
therefore does not pass muster. The accused was charged with
an
offence involving serious violence and called for the involvement of
a third psychiatrist, unless the court, upon application
by the
prosecutor, had directed that a third psychiatrist did not have to be
appointed.
[10]
In all these circumstances, the proceedings conducted by the
Magistrate, Whittlesea on and after 13 May 2015 are set
aside.
The matter is remitted to the Magistrate so as to be dealt with
appropriately in terms of
section 79(1)(b)
of the CPA.
___________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
21
July 2015
I
agree
____________________
D
VAN ZYL
ACTING
DEPUTY JUDGE PRESIDENT
[1]
As
amended by
section 10(a)
of the
Judicial Matters Amendment Act 66 of
2008
[2]
Section
79(1)(b)(i)
-(iv) of the CPA
[3]
Unreported
decision of the Western Cape Division, Cape Town by Binnis- Ward
et
Rogers
JJ delivered under High Court Ref no:14228 Oudtshoorn Case
No:B247/11 on 9 July 2014
[4]
Para
[68] of the
Booi
Pedro
judgement
[5]
Paragraph
25 of the Circular