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[2015] ZAECBHC 21
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S v Maphuko (A1870/15) [2015] ZAECBHC 21 (30 July 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
REVIEW
CASE NO: A1870/15
DATE:
30 JULY 2015
In
the matter between:
THE
STATE
And
THEMBALAKHE
MAPHUKO
............................................................................................
ACUSSED
REVIEW JUDGMENT
MBENENGE
J
:
[1]
The accused appeared before the Magistrate, Mdantsane charged with
contravening the provisions of section 17(a) read with
sections 1
,
5
,
6
,
7
and
17
of the
Domestic Violence Act 116 of 1998
, the allegation
being that he had wrongfully and unlawfully contravened a prohibition
and / or order imposed on him by entering
the residence of S. M. (the
complainant) and thereupon insulted the complainant and other
members of his family by calling
them witches, and threatened
to kill the complainant. He pleaded not guilty to the charge.
He made certain admissions at
the commencement of the trial.
The State led the evidence of the complainant and thereafter closed
its case, culminating
in the accused being put to his defence.
[2]
During the course of the defence case, when the accused was still
testifying, the Magistrate became of the view that the accused
was
not capable of understanding the proceedings. The Magistrate
observed:
“
...when
you started giving evidence you started going off about things that
happened since 2001 despite this Court trying to confine
your
evidence to 26 February and 9 April. You start your evidence on
one thread and you run a direction with it then you
stop, then you
start a new thread and you run in a different direction. Never
mind the new information and you contradicting
yourself, more often
than not you don’t make sense. You talk about irrelevant
things such as God clearing things up
for you but you don’t
explain it. More often than not you are moving around like
somebody that’s on heat, even
allowing the emotional outbursts
like the one you had just now, sitting down crying, talking about you
don’t want to be with
this life anymore. All this
together with your reference that you underwent psychiatric treatment
at some stage, raise a
concern with this Court regarding your
understanding of the court procedure. It brings us into the
realm of the provisions
of Section 78 of the Criminal Procedure Act
that says if the Court has any doubt as to your mental capabilities,
that the Court
must refer you for mental observation. This may
result in a lengthy delay of trial and it will at some stage have the
effect
that you will be detained at Fort England Hospital.”
[3]
The Magistrate did in fact refer the accused to Fort England Hospital
“
for mental observation for a
period of 30 days.”
This
was done purportedly in terms of section 78 of the Criminal Procedure
Act 51 of 1977 (the CPA). Reference to only that
section, must
have come about through inadvertence, as indeed the warrant for the
removal of the accused refers to sub-sections
77(1) and 78(2) of the
CPA.
[4]
In the interim, a report was compiled by two psychiatrists (Prof M
Nagdee and Dr H Jordaan) and served before the Magistrate
when the
trial resumed. The report embodies the following
recommendation:
“
Due
to the history of assaultive behaviour in the past, and his
unfavourable risk profile when mentally ill, it is respectfully
recommended that accused be admitted to Fort England Hospital as a
State Patient in terms of Section 42 (sic) of the Mental Care
Act.”
[5]
There was some debate between the State and the accused’s legal
representative regarding the procedure to be followed
consequent upon
the recommendation. In the final analysis, the Magistrate, in
light of the findings,
inter
alia,
that
the accused had committed the offence in question, is 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 of
the commission of the offence, gave heed to the recommendation
that
the accused be admitted to Fort England Hospital as a State patient
in terms of section 47
[1]
of the
Mental Health Care Act 17 of 2002
, and ordered that the accused be
detained, pending the decision of a Judge in chambers, in a
psychiatric hospital or prison.
The Magistrate further ordered,
“
[i]n
in terms of
section 77(6)(a)(ii)(bb)
,”
that
the accused is not entitled to a judgment in terms of
section 106(4)
of the CPA.
[6]
When the matter came before Lowe J he posed the following questions:
“
1.
Generally was the Accused dealt with correctly in terms of
section 77
of the
Criminal Procedure Act or
should he have been referred in
terms of
section 78
of the
Criminal Procedure Act?
>
2.
In either event as this was an offence not involving serious violence
should the finding and order not have been made in terms
of
section
77(6)(a)(ii)
-not (i) alternatively
section 78(6)(a)(ii)
not (i)?
3.
Why was it in the “
public
interest
”
necessary to order
otherwise?”
[7]
The views of the Director of Public Prosecutions, Bhisho, for which
this court is grateful, were sought and obtained.
[8]
Section 77(1)
provides that if it appears to the court 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, the court shall direct
that the
matter be enquired into and be reported on in accordance
with the provisions of
section 79.
Section 78(
2) is to the same
effect, but deals with criminal responsibility. In this matter
it would appear that the accused was correctly
referred for mental
observation and that there was substantial compliance with the
provisions of
sections 77(1)
of the CPA insofar as that section makes
provision for conducting an enquiry where it appears 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.
[9]
It remains to consider whether the matter was correctly reported on
in accordance with the provisions of
section 79.
The offence of which
the accused was charged is not one involving serious violence.
Insofar as relevant hereto (if the court
considers it to be necessary
in the public interest, or where the court in any particular case so
directs),
section 79(1)(b)
of the CPA
[2]
makes provision for the conducting of an enquiry reported on by –
(a)
the medical superintended of a psychiatrist appointed
hospital designated by the court, or by a psychiatrist appointed
by the medical superintended at the request of the court;
(b)
a psychiatrist appointed by the court and who is not in full-time
service of the Sate 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)
a psychiatrist appointed for the accused by the court; and
(d)
a clinical psychologist where the court so directs.
[3]
[10]
The ambit of
section 79(1)(b)
is sufficiently wide to encompass, not
only an instance where a charge involves serious violence, but
instances where the court
considers it in the public interest or
where the court in any particular case so directs.
[11]
On the authority of
S
v Booi Pedro
,
[4]
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.
[5]
[12]
The Office of the Director of Public Prosecutions, Bhisho has, in its
helpful response made pursuant to the query raised
by Lowe J referred
to 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.
[6]
[13]
Nothing, from a reading of the record, points to the prosecutor as
having requested the court to dispense with the third
psychiatrist.
Therefore, the panel was not correctly constituted and the Magistrate
could not declare the accused a State patient.
[14]
Even though the subject charge does not involve serious violence,
there are, in my view, ample grounds on the strength
of which the
Magistrate could have considered it necessary in the public interest
to invoke
section 79(1)(b).
The accused has previously
undergone psychiatric treatment. The facts of this matter do
not point to a once-off incident,
but to a continuous problem
besetting the accused and his family. Also, the recommendation
by the doctors that the accused
be declared a State patient is not
without significance.
[15]
In the result, the proceedings conducted by the Magistrate, Mdantsane
on and after 13 March 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
30
July 2015
I
agree
D
VAN ZYL
ACTING
DEPUTY JUDGE PRESIDENT
[1]
The
Magistrate observed that reference in the recommendation to “
section
42
” had come about through inadvertence.
[2]
As
amended by
section 10(a)
of the Judicial matter Amendment Act 66 of
2008
[3]
Section
79(1)(b)(i)-(iv) of the CPA
[4]
Unreported
decision of the Western Cape Division, Cape Town by Binns-Ward
et
Rogers
JJ delivered under High Court ref no.: 14229 Oudtshoorn Case No.
B247/11 on 9 July 2014; also see
S
v Xolani Elvis Ralane
review
judgment of this court delivered under review case no. A222/14
delivered on 21 July 201
[5]
Para
[68] of the
Booi
Pedro
judgement
[6]
Paragraph
25 of the Circular