About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2015
>>
[2015] ZAECBHC 39
|
|
S v Diniso (A3970/14) [2015] ZAECBHC 39 (11 September 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: A3970/14
High Court Case No:
21/15
In the matter between:
THE STATE
and
LUYANDA DINISO
REVIEW JUDGMENT
MBENENGE
J
:
[1]
The accused appeared before the Magistrate, Mdantsane, facing a
charge of contravening a
protection order, issued on 5 February 2014,
in terms whereof he had been prohibited from,
inter
alia
insulting, stalking and
emotionally abusing N. D. (the complainant). It was alleged
that on or about 4 December 2014, the
accused wrongfully and
unlawfully contravened the order by assaulting and insulting the
complainant, and kicking her with booted
feet.
[2]
When, initially, the matter served before the Magistrate, it was
postponed to a further date for
a formal bail application, with the
accused having been directed to remain in custody.
[3]
On the date to which it was postponed, the prosecutor informed the
Court that “
it transpires that accused has been referred for
mental evaluation
.” Resulting from that revelation,
the matter was postponed “
for section 77 proceedings
”,
with an order that the accused remain in custody.
[4]
The record further reveals that, on a subsequent occasion, the
prosecutor informed the Court that
the accused appeared to be
mentally unsound as he was “
insisting on being refunded his
lobola
.”
[5]
After several bouts of postponements, the mental status of the
accused was eventually enquired
into, on 6 January 2015.
According to the complainant, the accused had, since they got married
to one another, been violent
towards her. The couple became
estranged. On the fateful day the accused hit the complainant
with fists causing her
face to be swollen. It emerged that this
conduct had been meted out on several other previous occasions.
At some stage
during the proceedings, the accused also addressed the
Court, but his remarks appear to have been unintelligible. The
Magistrate
became satisfied that the accused might be suffering from
a mental illness, and thereupon directed, “
in terms of
section 79(1)(a)
” that the matter be “
enquired
into and reported on in terms of section[s] 77(2)and 78(1)
.”
[6]
By order dated 27 March 2015 the Magistrate,
inter alia
,
directed that the accused be removed from Fort Glamogan Prison to
Fort England Hospital for examination. That order resulted
in a
recommendation being made, by two psychiatrists, that the accused be
admitted to Fort England Hospital as a State patient
as he posed a
significant risk to his wife and other individuals due to the nature
of his psychotic symptoms.
[7]
Subsequent thereto, after the accused had been to Fort England
Hospital, and following an order
previously made, recorded as having
been “
in accordance with the
provisions of section 79(2) of Act 51 of 1977
”,
a further inquiry (in terms of “
section
78
”) was conducted. The
complainant in effect repeated the testimony she had initially
tendered, save that on this occasion
she also mentioned a protection
order that the assault complained of had violated.
[8]
After pointing to a correction and mentioning that the enquiry was in
fact in terms of “
section 77
”, the Magistrate
found that the accused was not capable of understanding the
proceedings so as to make a proper defence,
and directed that the
accused be detained in a psychiatric hospital or prison pending the
decision of a Judge in chambers in terms
of section 47 of the Mental
Health Care Act 17 of 2000.
[9]
The procedure followed by the Magistrate was fraught with
shortcomings, hence this judgment which,
to a great extent, is
informed by the views expressed by the Director of Public
Prosecutions, Bhisho, for which this Court is grateful.
[10] In
the first place, at no stage did the Court make a finding that the
accused had in fact committed the act
complained of. Such
finding is a jurisdictional factor for the invocation of either
section 77(6)(a)(i) or
section 77(6)(a)(ii)
of the
Criminal Procedure
Act 51 of 1977
(the CPA).
[11]
It is further clear, from a perusal of the transcript, that the
matter was dealt with in terms of
section 77(6)(a)(i)
[1]
of the CPA, although the accused had been charged with an offence
other than one contemplated in that section. No reasons
were
given for following this procedure. Without the reasons, it was
not possible for the Court to properly exercise its
discretion in
relation to whether the case warranted the invocation of
section
79(1)(a)
or
79
(1)(b) of the CPA. These subsections differ in
material respects, and posit different scenarios.
[12]
On the authority of
S
v Booi Pedro
,
[2]
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 subsection, 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.
[3]
In the
event that
section 79(1)(a)
is of application, it is not necessary to
have three psychiatrists constituting a panel.
[13] In
all these circumstances, the proceedings conducted by the Magistrate,
Mdantsane, on and after 6 February
2015 are set aside. The
matter is remitted to the Magistrate to –
(a)
consider the evidence placed before him and make a finding on whether
the accused committed the
act in question ;and
(b)
proffer a reason why the accused should be declared a State patient
and not an involuntary
mental health care user.
S M MBENENGE
JUDGE OF THE HIGH
COURT
11 September 2015
I agree
I T STRETCH
JUDGE OF THE HIGH
COURT
[1]
Section
77(6)(a)(i)
is applicable “
in
the case of a charge of murder or culpable homicide or rape …or
a charge involving serious violence
…”
[2]
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
[3]
Para
[68] of the
Booi
Pedro
judgement