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[2011] ZAKZPHC 58
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S v Zondi (AR 1049/09) [2011] ZAKZPHC 58; 2012 (2) SACR 445 (KZP) (30 September 2011)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO: AR
1049/09
In the matter
between:
THE STATE
…............................................................................................
Appellant
and
XOLANI ZONDI
….................................................................................
Respondent
REVIEW JUDGMENT
Date: 30 September 2011
PLOOS van AMSTEL J
[1] This matter was
submitted for review to the High Court by the Chief Magistrate at
Newcastle. The order sought to be reviewed
was made by a different
magistrate and is in the following terms: ‘Accused to be
detained in Midlands
Hospital as a state
patient in terms of section 77(6) of the Act (51 of 1977) pending the
decision of a judge in chambers in terms
of
section 47
of the
Mental
Health Care Act of 2002
’.
[2] The Chief
Magistrate also seeks guidance in the light of the statement in S v
Ramokoka
1
that, as a matter of
good practice, magistrates should refer the orders which they make in
terms of s 77(6) of the Criminal Procedure
Act (the CPA) to the High
Court for review.
[3] I should say at
the outset that the provision in section 77(6)(a)(i) that an accused
be detained pending a decision of a judge
in chambers in terms of
section 47
of the
Mental Health Care Act is
not a reference to a
review of the magistrate’s order.
S 47
deals with applications
to a judge in chambers for the discharge of a state patient.
2
Such an application
is not concerned with whether or not the order was properly made. It
involves an assessment of the evidence
relating to the mental health
status of the patient at the time of the application and whether he
should remain a state patient,
be reclassified or discharged.
3
[4] The order made
by the magistrate in terms of
s 77(6)
is reviewable by the High Court
as it is an order made by an inferior court as defined in s 1 of the
Supreme Court Act.
4
S 19(1)(a)(ii)
provides that the High Court has the power to review the proceedings
of all inferior courts within its area of jurisdiction.
The
grounds upon which
the proceedings of an inferior court may be reviewed are, in terms of
s 24:
(a) absence of jurisdiction on
the part of the court;
(b) interest in the cause, bias,
malice or the commission of an offence referred to in Part 1 to 4, or
s 17, 20 or 21 (in so far
as it relates to the aforementioned
offences) of Chapter 2 of the Prevention and Combating of Corrupt
Activities Act, 2004,on the
part of the presiding judicial officer;
(c) gross irregularity in the
proceedings; and
(d) the admission of inadmissible
or incompetent evidence or the rejection of admissible or competent
evidence.
[5] The powers of
review of the High Court are not limited to the grounds set out in s
24(1). S 19(3) provides as follows: ‘The
provisions of this
section shall not be construed as in any way limiting the powers of a
provincial or local division as existing
at the commencement of this
Act, or as depriving any such division of any jurisdiction which
could lawfully be exercised by it
at such commencement’. S 24
(2) provides as follows: ‘Nothing in this section shall affect
the provisions of any other
law relating to the review of proceedings
in inferior courts’.
[6] In S v Hlongwa
5
Caney J, with whom
Milne JP concurred, pointed out that prior to the enactment of the
Supreme Court Act in 1959, s 8 of the Natal
Supreme Court Act, 39 of
1896, gave the court wide powers, in the following terms: ‘The
said Supreme Court shall have full
power, authority, and jurisdiction
to review the
proceedings of all
inferior courts of justice or tribunals, and to exercise full
supervision and control over all magistrates and
other judicial
officers, and, if necessary, to set aside, amend or correct their
proceedings’. He held that in spite of the
repeal of Act 39 of
1896 the jurisdiction which this court enjoyed prior to the passing
of the Supreme Court Act of 1959 was preserved
by s 19(3).
[7] There is ample
authority
6
that s 8 of the
Natal Supreme Court Act gave the court full power to review the
proceedings of all inferior courts and that ‘review’
in
this context meant review in its widest sense, in other words falling
within the third category of reviews discussed by Innes
CJ in
Johannesburg Consolidated and Investment Company vs Johannesburg Town
Council.
7
[8] The fact that
the decision made by an inferior court was wrong is, on the authority
of these cases, an adequate basis to review
and set it aside.
8
That does not mean,
however, that the distinction between an appeal and a review will be
ignored. In an appropriate case the court
will refuse to deal with a
case by way of a review and insist that it be dealt with on appeal.
[9] It is noteworthy
that the same test applies in a review in terms of s 302 and 304 of
the CPA. The test is not whether there
was an irregularity or some
other traditional ground of review. It is simply whether or not the
court is of the view that the proceedings
are in accordance with
justice
9
.
[10] In Davids and
ors v Van Straaten and ors
10
Erasmus J said the
High Court has jurisdiction beyond the confines of the grounds of
review set out in s 24 of the Supreme Court
Act to review a decision
of an inferior court which is alleged to be an infringement of a
fundamental right entrenched in the Constitution.
It is a review of
the third category identified by Innes CJ in Johannesburg
Consolidated Investment Co v Johannesburg Town Council
11
.
[11] This is a
reference to s 38 of the Constitution
12
,
which provides that anyone listed in the section has the right to
approach a competent court, alleging that a right in the Bill
of
Rights has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The
persons
listed in the section include anyone acting in their own interest and
anyone acting on behalf of another person who cannot
act in their own
name.
[12] In Gerber v
Voorsitter: Komitee oor Amnestie van die Kommissie vir Waarheid en
Versoening
13
Southwood J said the
following with reference to the provisions of s 38: ‘Die
Grondwet het ‘n spesiale meganisme geskep
en dit is duidelik
nie beperk tot gemeenregtelike hersiening nie alhoewel dit
gemeenregtelike hersiening kan insluit. Dit is duidelik
dat die Hof
die wydste moontlike magte en bevoegdhede het om binne die raamwerk
van die Grondwet toe te sien dat daar nie op ‘n
persoon se
konstitusionele regte inbreuk gemaak word nie en indien dit reeds
plaasgevind het, om die posisie reg te stel.’
[13] In the present
matter the magistrate made the s 77(6) order on the flimsiest of
evidence. The first report delivered by a specialist
psychiatrist was
prepared by Dr Z Ngama, who stated in the report that on the
available information it seemed that the accused
was mentally well
and fit to stand trial. He expressed a reservation about the fact
that little information was available and said
it would be helpful to
speak to a relative or a neighbour. Dr Ngama was called to give
evidence and agreed with the magistrate’s
suggestion that the
accused should be sent to the Midlands Hospital for further mental
observation so that a detailed report could
be completed. The record
shows that a further report was made available to the court, prepared
by Dr J A Dunn, a senior psychiatrist
at the Fort Napier Hospital. He
stated in his report that there were no abnormal clinical findings
and no background of past mental
illness. He said the accused was
fully lucid and able to offer a superficially detailed account of
himself. No abnormal behaviour
was seen in the ward. He said there
was no psychiatric disturbance, and there was marginal intellectual
disability. He said the
accused was able to grasp what went on during
the trial proceedings and spoke sensibly concerning the charge
against him. He concluded
that there was nothing to indicate that the
alleged offence was a direct product of mental illness. Dr Dunn was
not called to testify.
It would appear that his report was simply
handed in by the prosecutor. The magistrate stated during a
discussion in court that
he gathered from the two reports that the
accused did have a mental illness. That was apparently based on his
own reading of the
reports. When the matter resumed the magistrate
explained to the accused that according to Dr Dunn’s report he
was able to
follow the proceedings and that there was nothing to
indicate that the alleged offence was a direct product of mental
illness.
He then informed the accused that according to the report he
suffered from a marginal intellectual disability, and then said the
following: ‘So
it is quite clear from this report that you do have a mental defect.
It has already been decided. I mean the
Criminal Procedure Act
clearly indicates that mental defect must be taken as a synonym of
intellectual disability’.
[14] When the
magistrate asked the accused whether he disputed the findings of the
doctor he said that he did. The matter was then
postponed so that the
accused could be provided with the services of a legal practitioner.
When the matter resumed the accused
said he did not want a legal aid
attorney. The magistrate then proceeded to deliver a judgment. He
said that the accused had been
provided with the services of a legal
practitioner but that it appeared that the accused was not prepared
to cooperate. He then
said the following: ‘From what happened
on the last occasion before the accused was referred to the mental
institution it
is quite clear that the accused is not capable of
understanding the proceedings so as to make a proper defence.’
This conclusion
was clearly based on the magistrate’s own
observations of the accused’s behaviour in court. He then
proceeded to make
the order in terms of s 77(6) to which I have
referred.
[15] The order made
by the magistrate cannot stand. He based his conclusion on his own
observations and on an incorrect reading
of Dr Dunn’s report.
Dr Dunn was not even called to testify, in spite of the indication by
the accused that he disputed the
contents of the report. The
magistrate also ignored the indications in the report that the
accused was in fact able to follow the
proceedings. There was no
evidence to support the order and the manner in which the magistrate
dealt with the matter constituted
a gross irregularity.
[16] It remains to
consider whether magistrates should as a matter of course submit s
76(6) orders to the High Court for review.
I think it is appropriate
for us to deal with this as there are conflicting decisions in other
divisions and the Chief Magistrate
seeks guidance in this regard.
[17] There is ample
authority for the proposition that an order in terms of s 77(6) is
not subject to automatic review in terms
of the CPA.
14
S 302, read with s
303 and 304(1) and (2), provides that certain sentences ‘shall
be subject in the ordinary course to review
by a judge …’.
An order in terms s 77(6) is not a sentence, with the result that s
302 does not apply to it. Nor does
s 304(4). The special review
provided for in that section also only applies where a sentence has
been imposed.
[18] The basis on
which the court in Ramokoka
15
suggested that such
orders should be submitted for review is ‘the potential for
serious prejudice to an accused person where
an order is made in
terms of s 77(6)’
16
and that it would be
a good practice to do so
17
.
[19] An accused
against whom an order is made in terms of s 77(6) has the right to
appeal against that finding.
18
Where the appeal is
allowed the court of appeal sets the direction aside and remits the
case to the court which made the finding,
whereupon the relevant
proceedings continue in the ordinary way.
19
Further, in terms of
s 47
of the
Mental Health Care Act a
number of persons may apply to a
judge in chambers
for the discharge of a state patient. They are the state patient, an
official curator ad litem, an administrator
(if appointed), the head
of the health establishment at which the state patient is admitted,
the medical practitioner responsible
for administering care,
treatment and rehabilitation services to a state patient, a spouse,
an associate or a next of kin of the
state patient, or any other
person authorised to act on behalf of the state patient.
[20] Magistrates
have the power to impose sentences which involve serious prejudice.
Not all their sentences are subject to review.
Some sentences are
subject to review only if they were imposed by a magistrate below a
specified level of seniority. The potential
for serious prejudice
does not seem to me to justify the creation of a new category of
automatic review. In S v Blaauw
20
Grosskopf J (as he
then was) said:’ Die landdros wys daarop dat ‘n persoon
ten opsigte van wie so ‘n bevel gemaak
is, moontlik nie sy reg
tot appel sal begryp nie. Die reg van appel is egter juis bedoel om
‘n person te beskerm wat wel
in staat is om die verrigtinge
behoorlik te begryp en derhalwe veronreg is deur ‘n bevel
ingevolge art 77 (6). Maar, hoe
dit ook al sy, selfs al sou ‘n
reg tot appel nie genoegsame beskerming bied nie, sou dit na my
mening nie die Hof veroorloof
om ‘n stelsel van outomatiese
hersiening te skep waarvoor die Wetgewer geen voorsiening gemaak het
nie.’ I respectfully
agree with this approach.
[21] In my view
there is no obligation on magistrates to submit orders in terms of
s
77(6)
of the CPA for review as a matter of course. If a magistrate
has reason to believe that there may be a problem in a particular
case he is of course free to submit the matter for review. In such a
case the High Court will exercise its powers of review if the
circumstances require it.
[22] In the
circumstances the following order is made:
(a) The order made
by the mag istrate in terms of s 77(6) of the Criminal Procedure Act
is set aside;
(b) The matter is
remitted to the trial magistrate for the criminal proceedings to be
continued in the ordinary way.
_____________________
Ploos van Amstel J
I
agree:
_____________________
Patel
AJP
1
S
v Ramokoka
[2006] ZAGPHC 37
;
2006 (2) SACR 57
W
2
‘
State
patient’ is defined in
section 1
of the
Mental Health Care Act
of 2002
as a ‘person so classified by a court directive in
terms of section 77 (6)(a)(i) or 78 (6)(i)(aa) of the Criminal
Procedure
Act’.
3
S
v Wills
1996 (2) SACR 105
T; S v Van Wyk (1)
2000 (1) SACR 79
T
4
Act
59 of 1959. In terms of the relevant part of section 1 an inferior
court means ‘any court (other than the court of a
division)
which is required to keep a record of its proceedings…’.
5
1963
(1) SA 14
NPD
6
Mbekela
v Nkomozake
1921 NPD 287
; S v Sithole
1975 (1) SA 873
N; S v Zungu
1984 (1) SA 376
N
7
1903
TS 111at 116
8
Mbekela
v Nkomozake (supra) at 295
9
Section
304(1) of the CPA
10
[2005] ZAWCHC 16
;
2005
(4) SA 468
C
11
P
486 D
12
Constitution
of the Republic of South Africa,1996
13
1998(2)
SA 559 T at 569G
14
S
v Blaauw
1980 (1) SA 536
CPD; S v Van Wyk (1) SACR 2000 (1) 79 T; S
v Ramokoka (supra
)
15
supra
16
Para
12
17
Para
16
18
S
77(8)
19
S
77(10)
20
Supra,
at 537 H