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[2012] ZAECBHC 2
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S v Sikutu (CA & R 7/2012) [2012] ZAECBHC 2; 2012 (2) SACR 324 (ECB) (28 March 2012)
IN THE EASTERN CAPE
HIGH COURT
BHISHO
CASE NO. CA &
R 7/2012
REVIEW CASE NO. 73/11
In the matter between:
THE STATE
and
ZWELETHEMBA
SIKUTU
REVIEW
JUDGMENT
HARTLE J:
1.
This matter came before me in December 2011 as a
special review at the instance of the State after the regional
magistrate, Mdantsane,
issued an order that the accused person be
detained as a state patient pursuant to the provisions of
section 47
of the
Mental Health Care Act, No. 17 of 2002
.
2.
Before dealing with the relevant background to the
matter, I pause briefly to mention that the order was issued as far
back as 23
February 2011 already. Although the Director of
Public Prosecution’s correspondence raising their particular
concern
is absent from the review record, the regional court
president wrote on 23 September 2011 only to express the view that
the State
could note an appeal if it was dissatisfied with the
finding.
3.
When the matter first came before me on 5 December
2011, I referred a query asking for the record to be supplemented
with reference
to the J15 and certain exhibits which were admitted
into evidence during the course of the trial proceedings. The
J15 was
particularly relevant to establish the basis for the
accused’s referral for observation in the first place.
The file
only made its way back to me in the week of 19 March 2012,
some three months later. Further, although the clerk of court
supplemented the record as requested, the typed transcript of the J15
(which is somewhat illegible) is incomplete and a medical
report -
ostensibly preliminary in nature and obtained prior to the referral –
was not included.
4.
I cannot comprehend what has caused the
substantial delay in returning a proper record, or why my query could
not be responded to
promptly. The prejudice to both the accused
and the State by the delay is palpable. An application for his
discharge
has already been received by the curator
ad
litem
on the
basis that he is not mentally ill, but I was informed by the office
of the Director Public Prosecutions that this application
cannot be
entertained for so long as the review is still pending.
Conversely the accused has for a year now been detained
as a state
patient. This is a most unsatisfactory state of affairs deserving of
censure and calling for an appropriate explanation
by the responsible
clerk of the court. I note incidentally too that the magistrate
was never requested to offer his comments,
alternatively these were
not appended to the record.
5.
I turn now to deal with the substance of the
review.
6.
In this matter the accused was charged with the
murder of his father, it being alleged that he stabbed him with a
knife. A
plea of not guilty was tendered on his behalf.
The plea explanation - which was confirmed by him - was to the
following effect:
“
(H)
e
doesn’t know what had happened on that day. He could not
understand what was happening – he has no knowledge
of what
happened, he only regained consciousness or knowledge of what –
or appreciating what was happening around him when
he was already in
the police station, …”
7.
Several admissions were made relating to the
identity of the deceased, cause of death and handling of the body.
The post mortem
report - recording a fatal wound to his chest and a
further wound to his scalp - was admitted into evidence.
8.
Ten months before pleading the accused was
referred for observation pursuant to the provisions of section 79 of
the Criminal Procedure
Act, No. 51 of 1977 (“
CPA
”
).
As indicated above, in the absence of the preliminary medical report
forming part of the record, it is unclear on what
basis the court
felt it necessary to request an inquiry into his mental condition.
The typed transcript of the record at
least reflects, however, that
the provisions of section 78 were thought by the defence to be of
application.
9.
The accused was ultimately examined by four
experts as envisaged by section 79(1)(b) of the CPA, including a
clinical psychologist.
The panel unanimously concluded both
that he was able to follow proceedings so as to make a proper defence
and that, at the time
of the commission of the offence, he was able
to appreciate the wrongfulness of the act in question and to act in
accordance with
such appreciation. The diagnosis on axis 1 was
one of a substance abuse disorder : (“
Alcohol
Abuse Psychotic Disorder NOS
(“not
otherwise specified”
) in full
remission
”
).
10.
The report was undisputed and the magistrate
concluded on 25 October 2010 that the accused was fit to proceed with
the trial.
11.
Except to assert that the accused did not know
what happened on the day in question, his criminal capacity was not
pertinently placed
in dispute at the trial. The State called a
single witness, a neighbour of the deceased’s family, who
testified that
the deceased came into his yard shouting that the
accused was stabbing him. He happened to observe the accused
sitting in
front of his yard on the street holding a fixed blade
knife that was covered in blood. When he enquired from him what
he
was doing to his father, he got up and ran away towards his house,
dropping the knife in the process.
12.
The witness was not present later when the accused
was arrested. Under cross examination by the court he said he
was too shocked
to observe the accused’s state of sobriety, yet
proffered a view under cross examination that since the accused had
ran towards
his home without staggering this meant that he was in his
sober senses and conscious that he was doing something wrong.
Further
in response to a question from the court, the witness said he
was unaware that the accused suffered from any mental illness.
13.
The accused testified in his own defence, claiming
to have no recall of the events of the day until he came to in the
police station.
Under cross examination he alluded vaguely to a
mental illness but drew no connection with this to the pleaded
amnesia. No
additional psychiatric or other expert evidence was
presented to the court.
14.
Despite this the magistrate concluded that he was
not criminally responsible for the act by reason of mental illness.
His
reasoning in this regard is illuminating:
“
It
is also the evidence of the accused that he was not eating for four
days because when he has these mental problems he loses his
appetite. And that his father asked the police to take him to
have an injection, and he was given an injection. Then
he went
home to eat and sleep but he could not remember anything after that.
It
(is)
also
the evidence of the accused that he has never been violent towards
his father. And that he did use to smoke mandrax and
dagga but
not during this period because he did not have money.
Now,
the question I am asking myself is, can I reject the accused’s
version as being false beyond reasonable doubt?
It is here a
question of him just saying that he cannot remember what happened?
That he is possibly trying to distance himself
for what he had done
on that day that his brain does not want to accept that he killed his
own father? Or is it a question
of him not really knowing what
happened on the day in question because of mental illness? I
feel that in the light of there
not being any other evidence other
than Mr Kulati’s evidence to show that he really knew what he
was doing, I feel that I
should give the accused the benefit of the
doubt. But I also then find that the accused did commit the act
in question, but
by reason of mental illness he was not criminally
responsible for that act. And I therefore find the accused
NOT
GUILTY
. But as the accused is
being charged for murder I order that the accused be detained in a
psychiatric hospital or prison
pending the decision of the judge in
chambers in terms of Section 47 of the Mental Health Act of 2002.”
15.
Although the magistrate concluded that he had “
no
evidence
”
before him concerning
the accused’s state of mind at the time of the commission of
the offence, this was certainly not the
case. The panel had
unanimously determined that he was able at the relevant time to
appreciate the wrongfulness of his conduct
and to act in accordance
with such appreciation. Further the magistrate allowed himself
to be swayed by the accused’s
casual reference to his so-called
mental health problems which he almost surmised existed as a fact
without any proper basis for
drawing such a conclusion.
16.
Nugent
JA
remarked
in
S
v Mabena & Another
[1]
that “
mental
illness
”
and
“
mental
defect
”
are
morbid disorders that are not capable of being diagnosed by a lay
court without the guidance of expert psychiatric evidence.
An
enquiry into the mental status of an accused person which is embarked
upon without such guidance is bound to be “
directionless
and futile
”
.
17.
Chapter
13 of the CPA creates the specialised machinery for the “
insanity
defence
”
to
be properly investigated and reported upon. Indeed the whole
intent of section 77 to 79 is that where issues relating to
mental
illness and capacity arise, the court will be guided by expert
evidence so that it does not have to make an uninformed judgment
on
such specialised issues.
[2]
18.
Since there appears to be absolutely no foundation
in the present matter for the unanimous opinion of the panel to have
been called
into question, and in the absence of anything other than
speculation on the part of the magistrate as to a lack of criminal
responsibility
of the accused due to mental illness, the remarks of
Nugent JA
above
are particularly resonant.
19.
The magistrate is not at liberty to simply ignore
the psychiatric report prepared pursuant to the specialised machinery
of Chapter
13. The panel’s investigation is not a
discrete once-off enquiry that is considered in isolation, but
remains in my
view pertinent and alive to any determination envisaged
in section 78(6) of the CPA concerning whether at the time of the
committal
of the offence the accused was by reason of mental illness
or intellectual disability criminally responsible for the act or not,
or section 78(7) concerning the question whether at the time of the
commission of the act in question his capacity to appreciate
the
wrongfulness of the act was diminished by reason of mental illness or
mental defect.
20.
In
S
v Motshekgwa
[3]
it was held that all previous and relevant psychiatric reports
completed in respect of a specific accused should be placed before
the trial court, confirming the necessity for trial court to be
apprised of all the relevant facts when deciding the mental condition
of an accused.
21.
In this instance critical relevant evidence was
overlooked whilst the magistrate attempted in isolation to reach a
decision as to
the accused’s criminal capacity on the supposed
basis of a mental illness.
22.
In the premises it is proper in my view to set
aside his finding and direction respectively and to remit the matter
for a re-trial.
23.
In the result I make the following order:
1.
Both the finding of the regional magistrate,
Mdantsane, that the accused was not criminally responsible for the
murder by reason
of mental illness or defect; and further direction
in terms of
section 78(6)(b)(i)(aa)
of the
Criminal Procedure Act No.
51 of 1977
that he 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, 2000, are hereby set aside;
2.
The matter is remitted to the Regional Court,
Mdantsane, for trial
de novo
;
3.
A copy of this judgment is to be brought to the
attention of the chief clerk of the Regional Court, Mdantsane, to
investigate the
reason for the delay in promptly submitting a
complete review record and to furnish an explanation to the court in
this regard.
B C HARTLE
JUDGE OF THE HIGH
COURT
28 March 2012
I agree
A E B DHLODHLO
JUDGE OF THE HIGH
COURT
[1]
2007(1) SACR 482 (SCA) at [16].
[2]
Commentary
on
Criminal Procedure Act
>,
Du Toit, at p13-1.
[3]
1993 (2) SACR 247(A).