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[2011] ZAECBHC 3
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S v Matu (CA&R 8/11) [2011] ZAECBHC 3; 2012 (1) SACR 68 (ECB) (24 March 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, BHISHO)
REVIEW
CASE NO: CA&R 8/11
Date
of judgment: 23 March 2011
Judgment
delivered: 24 March 2011
In
the matter between:
THE
STATE
and
JONGITHEMBA
MATU
_____
REVIEW
JUDGMENT
________
HARTLE J
1. This matter came before me as a
special review pursuant to the provisions of section 304 of the
Criminal Procedure Act, No. 51
of 1977 (“CPA”).
2. The judicial head, Keiskammahoek,
requests this court to set aside a court order recorded on Form MC 20
(J105)
1
,
marked annexure “C” to the record. She explains that the
incorrect form was used to
“
detain”
the accused and that it is not in
accordance with the order noted on the face of the J15 to the effect
that he
“
must be
admitted and detained in a mental institution as an involuntary
mental health care user as contemplated in
section 37
of the
Mental
Health Care Act of 2002
”.
Also
attached to the record is a signed form MC 21 (J105)
2
which she proposes
“…
.be
considered as the correct one
”
.
3. The accused was charged with the
offence of assault with intent to do grievous bodily harm, read with
the provisions of section
51(2) of the Criminal Law Amendment Act
(105 of 1997)
3
,
it being alleged that on 22 January 2009 and at or near Rabula Admin
Area in the district of Keiskammahoek, he unlawfully and
intentionally assaulted one Nontobeko Adelaide Matu by hitting her
with a stick, causing her grievous bodily harm.
4. The “
rights
to legal representation
”
form
annexed to the charge sheet is incomplete, so it is not clear whether
the accused elected to engage the services of a state
legal advisor,
or appoint a practitioner of his own choice. By the second
appearance, however, the record reflects that he was
represented by
Ms
Tomose
who
was ostensibly in attendance on his behalf at seven subsequent
appearances. On 14 September 2009 she requested that her client
be
referred for
“
mental
observation”
as she
suspected that he was mentally retarded. The mother of the accused,
the complainant in the matter, was present in court.
The record
reflects her confirmation that he was receiving
“
treatment”.
5. Thus the matter was postponed for
such assessment on several occasions, seemingly awaiting a vacancy at
the Fort England Hospital.
Ultimately the accused was referred for
observation on 18 March 2010.
6. The record reflects that, on 18
March 2010, and in the absence of Ms
Tomose
, the prosecutor handed
in the “
results of the thirty days observation”
.
Presumably this is a reference to the report prepared pursuant to the
psychiatric evaluation in accordance with section 79 of
the CPA. The
diagnosis reflected therein is,
inter alia
, “
Psychotic
Disorder
” on Axis 1.
7. The section 79 panel concluded
unanimously that the accused is unable to follow court proceedings so
as to make a proper defence;
and that it is “
most likely”
that he was mentally ill at the time of the alleged offence and thus
unable to appreciate the wrongfulness of the act in question.
Their
recommendation was that he be dealt with as a state patient, in
accordance with section 77(6) of the CPA, and detained until
discharged by a judge-in–chambers in accordance with
section 47
of the
Mental Health Care Act, no 17 of 2002
.
8. The matter was subsequently
remanded for the “
DPP’s decision”,
which
ostensibly came to hand to 20 May 2010
.
9. The “
decision
”,
which is a communication addressed by the Deputy Director of Public
Prosecutions Bhisho, to the prosecutor - presumably
for the latter’s
guidance - is annexed to the record marked annexure “B”.
It does no more than comment on the
conclusion stated in the
psychiatric report and thereupon directs the prosecutor to the
relevant options set forth in
section 77
(6) (a) of the CPA.
10. Thereupon it appears that the
magistrate purported to hold an “
enquiry”
in terms
of “
Sec .77(6)()(ii)(aa)
”
(sic).
0i
n; line-height: 200%">
11. The procedure to be adopted,
once a matter has been enquired into and reported on in accordance
with the provisions of
section 79
of the CPA, is set out in Chapter
13 of the act. The particular section, relevant for present purposes,
reads as follows:
’
77. Capacity
of the accused to understand proceedings
.……
(1A) …….
If the finding
contained in the relevant report is the unanimous finding of the
persons who under
section 79
enquired into the mental condition of
the accused and the finding is not disputed by the prosecutor or the
accused, the court
may determine the matter on such report without
hearing further evidence.
If the said finding is
not unanimous or, if unanimous, is disputed by the prosecutor or the
accused, the court shall determine
the matter after hearing
evidence, and the prosecutor and the accused may to that end present
evidence to the court, including
the evidence of any person who
under
section 79
enquired into the mental condition of the accused.
Where the said finding
is disputed, the party disputing the finding may subpoena and
cross examine any person who under
section 79
has enquired into
the mental condition of the accused.
If the court finds
that the accused is capable of understanding the proceedings so as
to make a proper defence, the proceedings
shall be continued in the
ordinary way.
If the court which has
jurisdiction in terms of
section 75
to try the case, finds that the
accused is not capable of understanding the proceedings so as to
make a proper defence, the court
may, if it is of the opinion that
it is in the interests of the accused, taking into account the
nature of the accused’s
incapacity contemplated in subsection
(1), and unless it can be proved on a balance of probabilities that,
on the limited evidence
available the accused committed the act in
question, order that such information or evidence be placed before
the court as it
deems fit so as to determine whether the accused has
committed the act in question and the court shall direct that the
accused
–
in the case of a
charge of murder or culpable homicide or rape or compelled rape as
contemplated in
sections 3
or
4
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007
, respectively, or a charge
involving serious violence or if the court considers it to be
necessary in the public interest, where
the court finds that the
accused has committed the act in question, or any other offence
involving serious violence, be detained
in a psychiatric hospital or
a prison pending the decision of a judge in chambers in terms of
section 47
of the
Mental Health Care Act, 2002
; or
where the court finds
that the accused has committed an offence other than one
contemplated in subparagraph (i) or that he or
she has not committed
any offence –
(aa) be admitted to and
detained in an institution stated in the order as if he or she were
an involuntary mental health care user
contemplated in section 37 of
the Mental Health Care Act, 2002.
(bb) …..
’
12. This “
enquiry
”
was proceeded with in the absence of
the accused’s legal representative. There is no indication in
the record whatsoever why
she was absent when the matter proceeded,
or why and at what stage the accused came to be unrepresented. The
magistrate said not
a word in this regard, but given the complexity
of the proceedings under chapter 13, and the severe consequences
which it holds
for an accused person against whom an order might be
made that he be detained indefinitely - not as a result of his
actions, but
due to a lack of understanding and inability to make a
proper defence - it is to my mind imperative that he be assisted. Not
surprisingly,
subsection (1A) recognizes the possible infringement of
such a person’s fundamental rights in that it provides that a
court
may, in respect of both the section 79 enquiry and the further
proceedings envisaged in subsection (2), if it is of the opinion
that
“
substantial
injustice would otherwise result
”
,
order that he be provided with the services of a legal practitioner
in terms of
section 3
of the
Legal Aid Amendment Act, no 20 of 1996
4
.
13. Leaving aside for the moment
that the accused was unassisted, the magistrate further skipped ahead
to the enquiry without first
making the determination that the
accused is not capable of understanding the proceedings so as to make
a proper defence in terms
of
section 77(6)(a)
of the CPA. Even
antecedent to that, she failed to establish from the parties whether
the
section 79
report was disputed. It is only on the basis of a
unanimous and undisputed report that the matter may be determined
without hearing
further evidence
5
.
14. She appears to have assumed,
with reference to annexure B, that the prosecutor accepted the
finding of the panel, but this ought
to have been clearly established
and an indication made on the record to this effect. As for the
accused, the record is innocent
of any invitation extended to him to
indicate if he wished to dispute the finding; or of any explanation
made to him concerning
his right to lead evidence on the basis
provided for in subsection 3 or indeed as to the consequences which
might ensue arising
from the drastic provisions of Chapter 13. In my
view the phrase “
is
not disputed by …the accused
”
referred
to in the subsection cannot be equated with an accused person being
unable to dispute it by virtue of mental illness or
defect. The
accused has a clear election to challenge a
section 79
finding and to
present evidence towards this end.
6
I have already remarked above on the
prejudice to him occasioned by the absence of his legal
representative at so critical an enquiry.
15. The enquiry which ensued (no
doubt on the assumption that the report was not disputed by either
the prosecutor or the accused)
consisted of questions being put to
the unrepresented accused
7
and a brief address by the public
prosecutor:
“
Q
: Where do you reside?
A
: At Rabula Admin. Area.
Q
: Do you know Nontembo Matu?
A
: I do not know her.
Q
: Why are you in court?
A
: I do not know.
Public
Prosecutor address by State
On
the day in question accused’s mother was preparing a dough to
make bread. Accused demanded food. He grabbed the dough and
took a
stick assaulting his mother. The mother sustained two lacerations,
swollen arms and fingers.
Q
: Is it alleged that you assaulted your mother?
A
: That is not true.
Q
: Who is your mother?
A
: It is Nontembo.
Q
: Is it not the one you said you don’t know?
A
: I know her.”
16. The magistrate’s enquiry
elicited from the prosecutor at the very least that the accused had
committed the act in question
8
,
which provides the jurisdictional basis for the peremptory
alternatives outlined in subsections 6(a)(i) and (ii). Despite this
she concluded that:
“
The
accused is not capable of understanding the proceedings so as to make
a proper defence. The accused has committed the said offence
though
he denies that.”
17. In the result she ordered that
he “
be admitted and
detained in a institution stated as an involuntary mental health care
user as contemplated in
Section 37
of MCH Act 2002
”
.
Presumably she thought the provisions of section 77(6)(a)(ii)(aa) to
be applicable, based on his denial that he committed the
offence.
This approach was, however, erroneous.
18. Assuming the determination that
the accused is incapable of understanding the proceedings so as to
make a proper defence had
been properly arrived at in accordance with
the unanimous report of the section 79 panel – leaving aside
the fact that the
accused was unrepresented and not invited to
dispute the report - the court is thereupon enjoined by the
provisions of section
77 (6) to give a directive as to the detention
or treatment of the accused in terms of the
Mental Health Care Act.
This
directive is dependent, in turn, on a prior
“
finding
”
9
as to whether or not the accused has
committed the act in question. It is in this regard that the
magistrate appears to have stumbled,
not surprisingly, however, given
the obscure provisions of
section 77
(6) concerning the basis on
which this
“
finding”
is to be arrived at.
19.
S
v Sithole
10
provides some useful insight in this
connection. Whilst a court has a discretion to order that such
information or evidence be placed
before it as it deems fit to
determine the issue, it appears unnecessary to invoke same where it
“
can be proved on a
balance of probabilities that, on the limited evidence available, the
accused committed the act in question
.”
Du Toit
AJ
notes as follows in that matter:
“
The proviso is
framed in the subjunctive mood and appears to envisage the
availability of such proof, or an ability to furnish it,
rather than
the actual adducing or disclosure thereof to the court. The latter
interpretation in my opinion would be virtually
indistinguishable
from the placing of ‘information or evidence’ before the
court, and therefore tautologous, and could
hardly have been intended
by the Legislature. I further point out that the
onus
mentioned is proof on a
balance of probabilities, and not the criminal burden of proof beyond
reasonable doubt. The subsection then
further provides that a court
finding an accused to be incapable of understanding the proceedings
so as to make a proper defence,
‘shall direct’ that the
accused be detained as provided in para (a)(i) if he is charged with
an offence involving serious
violence, or if the court considers it
necessary in the public interest, ‘where the court finds that
the accused has committed
the act in question or any other offence
involving serious violence’. In the premises the second
proviso, in my view, enables
a court to make a finding that the
accused committed an act on the strength of a reliable assurance that
there is available evidence
to justify such a finding on a balance of
probabilities.
It follows that, in my
view, the two provisos in effect severely restrict the exercise of a
court’s discretion to order that
information or evidence be
placed before it.
I canvassed both
provisos with counsel during argument. As regards the first proviso,
I invited their submissions as to whether
it is in the interest of
the accused that I order information or evidence to be placed before
me. They were
ad
idem
in
submitting that the interests of the accused did not require such an
order. I agree with those submissions.
As regards the second
proviso, counsel for the State, having consulted with the
investigating officer in the case, assured me that
there was evidence
that the accused committed the acts in question and that a witness
was available to testify to such commission.
I naturally have no
hesitation in accepting such assurance, which was not queried by
counsel for the accused, and on the strength
thereof find that the
accused probably committed the aforesaid acts alleged in the summary
of substantial facts.
”
11
20. In the present matter the
limited information available that the accused committed an offence
involving serious violence is
that as outlined by the State in its
address. But this should be sufficient to establish, on the basis of
the
Sithole
test, that there is available
evidence to justify the finding that the act complained of was
committed and that it involved serious
violence. I expect too that
the complainant will be available to testify as to its commission if
necessary. In the light thereof,
it appears unlikely that it will be
necessary for the court to have to invoke the discretion referred to
in
section 77
(6) to order that evidence be placed before it.
21. That said, the finding ought to
provide the necessary jurisdictional basis for the following stage in
the enquiry, which is
to determine whether the act committed falls
into one or the other of the two categories contemplated in
subsections (i) or (ii).
The first such category includes the
scenarios where the accused is: (a) charged with the obviously
serious offences of murder,
culpable homicide or rape; or (b) the
charge is one
“
involving
serious violence”;
(c)
where - in relation to a finding that he has committed the act in
question (I assume the act referred to in the charge) - the
court
considers it in the public interest to detain him as a judge’s
patient; or (d) he is charged with any other offence
involving
serious violence. (The reference in (d) to
“
any
other offence”
was
probably envisaged with reference to a situation where the act with
which an accused is charged is not established, but another
of
equally grave import, because it involves serious violence,
alternatively the option purports to cover the gap left by the fact
that, although it is an offence involving serious violence, it does
not resort under the limited specified list of offences. Although
the
subsection is not framed very helpfully, it is clear, however, that
the emphasis is on keeping under one umbrella all manner
of conduct
on the part of the accused involving serious violence.)
22. The alternative category
includes offences other than those contemplated in subparagraph (i)
found to be committed, in other
words non-violent offences, and also
includes in its reach those instances in which the court finds that
the accused has not committed
any offence.
23. In the case of the first
category, the court is obliged to direct that the accused be detained
in a psychiatric hospital or
a prison pending the decision of a judge
in chambers in terms of
section 47
of the
Mental Health Care Act, and
in the latter, that he be admitted to and detained in an institution
as if he were an involuntary mental health care user contemplated
by
section 37
of the
Mental Health Care Act.
24. In
this instance, on the bases
both that the charge itself involves serious violence, and that the
available evidence points to the
commission of the
“
act
in question”
- this
much is apparent from the State’s address - the court will most
likely be obliged to act in terms of the provisions
of
section 77
(6)(a)(i), rather than section (6) (a) (ii).
25. In the context of the test
adopted in
Sithole
in arriving at the finding whether
the accused committed the offence - and indeed whether the act
involves serious violence - the
accused’s denial is, in my
view, of no significance. This is because the question whether he
committed an act involving serious
violence is focused on its
physical commission only and is not directed to the question whether
he is guilty of the offence charged
in the ordinary sense of a
verdict or judgment.
26. That the court is bound to issue
the directive pertaining to the first category entailing all manner
of conduct involving serious
violence - notwithstanding a perhaps
inequitable result - is evident from
S
v Mc Bride
12
,
which dealt with the analogous provisions of
s 78
of the CPA.
Mc Ewan
J wrestled with the peremptory
nature of the provisions of
s 78(6)
as follows:
“
The argument was
to the effect that a case like the present, where the evidence
indicates that it is more likely to be harmful than
beneficial to the
accused to be detained in a mental hospital, and, of course, even
more so in prison, shows that it is manifestly
absurd that the Court
should not have discretion. I am, however, unable to accept that
argument. The fact that the result in this
case may be unfortunate
does not in my view indicate clearly that the Legislature must have
intended otherwise. It is possible
that there is a hiatus in the Act
in that the Legislature did not clearly contemplate a case such as
this and consequently did
not provide a means of dealing with a
person who has recovered from his mental illness. However, it is not
for the Court to fill
any such possible gap by inventing its own
procedure to meet the case
.”
13
27. I find that the magistrate was
wrong to make the order which she did. The conclusion which she drew
was only competent upon
a finding that the accused had
“
not
committed any offence”
,
alternatively that he had committed an offence not contemplated in
subparagraph (i)
14
.
Neither was in my view capable of being found.
28. Notwithstanding the erroneous
outcome and failure on the part of the magistrate to appreciate what
was expected of her in the
circumstances, I do not think it
appropriate, however, to simply substitute her finding. In my view
substantial injustice has resulted
by virtue of the fact that the
accused was unrepresented at the enquiry. In the result I propose to
set aside the order (and both
template orders issued pursuant
thereto), and remit the matter back to the magistrate to determine
the matter afresh, even if the
input of a legal practitioner turns
out to be perfunctory only in such further proceedings
15
.
The object of this order, however, is to ensure that the fundamental
rights of the accused are respected in that process. In enquiries
such as these where much store is set by assurances given that there
is available evidence to justify a finding that the act in
question
has been committed, and that it involves serious violence putting it
in the category of complaints that require the more
drastic directive
referred to in section 77(6)(i), legal assistance is not merely
desirable but necessary.
29. Before concluding, and without
intending to be prescriptive, the following might provide a useful
guide in section 77 enquiries
once the matter has been enquired into
and the section 79 report has come to hand:
29.1. The court should first
consider whether the section 79 report is compliant with the
provisions of that section in all necessary
respects;
29.2. Next it should consider the
import and effect of the findings of the panel, and whether it is
unanimous;
29.3. It should then establish
whether the report is disputed by either the prosecutor or the
accused, and note their responses
in this regard on the record;
29.4. If unanimous, and not disputed
by either, it should proceed to determine the matter on the report
without hearing further
evidence:
If the report is to
the effect that the accused is capable of understanding the
proceedings so as to make a proper defence,
it should make a
determination in terms of section 77 (5) to the effect that the
proceedings be continued in the ordinary
way;
If to the effect
that the accused is not capable of understanding the proceedings
so as to make a proper defence, it should
make a determination in
terms of section 77 (6);
29.5. If not unanimous, or disputed
by either:
29.5.1. It should invite the parties
to adduce evidence on the basis set forth in section 77 (3) and offer
any assistance as may
be necessary with regard to the issue of
subpoenas
; etc;
29.5.2 In undertaking the necessary
enquiry, it should strive to ensure a full ventilation of matters
bearing on the determination
required to be made. In this regard it
should allow the accused person, if he wishes and is able to do so,
to himself testify and
permit cross examination of all witness;
29.6. Pursuant to such enquiry, the
court should make its determination, on a balance of probabilities,
whether in terms of subsection
(5) or (6).
29.7. If a determination in terms of
subsection 6 is made:
29.7.1 It should establish if it can
be proved on a balance of probabilities that there is evidence
available (albeit limited) that
the accused committed the offence,
alternatively it should consider whether it is necessary to invoke
the discretion to order that
evidence be placed before it to
determine this issue. (In this regard the test adopted in
Sithole
as to how this “
finding”
is to be arrived at is
commended);
29.7.2 Thereupon it should determine
the issue (as to whether the accused committed the offence) after
hearing evidence or making
the value judgment, as the case may be, on
the strength of assurances given concerning the evidence available;
29.8. Allied to the question whether
the accused committed the act in question, it should establish
whether the act resorts under
the first category referred to in
paragraph 21, or the second referred to in paragraph 22 above;
29.9. If under the first, it should
issue the directive referred to in section 77 (6) (i), on form MC20;
29.10. If the second category
applies, it should issue the directive in terms of section 77 (6) (a)
(ii), on form MC21.
It needs to be particularly
highlighted that it is unnecessary, even where the accused has
already pleaded to the charge, to make
any determination of his
guilt. He is not entitled to a verdict on the charge in the usual
sense of the word. The directive issued
is an outcome in itself. It
is further advisable, incidentally, to ensure that the charge is not
withdrawn at this stage if the
accused has not pleaded, because this
will remove the legal basis for the directive. (See
S v Malcolm
supra
in this regard).
31. In the final result, I make the
following order:
The magistrate’s order dated
20 May 2010 recorded on the face of the J15 (as well as both orders
referred to as annexures
“C” and “D”
respectively) are set aside;
The matter is remitted to the
magistrate to make a determination pursuant to the provisions of
section 77
(2) or (3) of the
Criminal Procedure Act, no 51 of 1977
,
as the case may be, and such further order and directive thereupon
as is appropriate to the circumstances; and
The accused is to be provided with
the services of a legal practitioner in terms of
section 3
of the
Legal Aid Amendment Act, No. 20 of 1996
in respect of the envisaged
proceedings.
pp
B C HARTLE 23 March 2011
JUDGE
OF THE HIGH COURT
I agree
Y
EBRAHIM 23 March 2011
JUDGE
OF THE HIGH COURT
1
This
is the standard form of the order in terms of
s 77(6)(a)(i)
of the
CPA, where the accused is not capable of understanding the
proceedings due to mental illness or defect, in respect of
“
violent
acts”.
2
This
is the standard form of the order in terms of
s 77
(6)(a)(ii) of the
CPA in respect of “
non violent acts”
3
This
section provides for discretionary minimum sentences for certain
“
serious offences”.
However, the offence with
which the accused was charged (on the limited information at the
court’s disposal), does not appear
to fall under any of the
schedules to which reference is made in the subsection. I will
assume for present purposes that it has
no application and should
have been deleted.
4
See
also the remarks of Willis J in
S v Ramokoka
[2006] ZAGPHC 37
;
2006 (2) SACR 57
(W), at 60
d
, concerning the “
potential for serious
prejudice
” to an accused person where an order in terms of
s 77(6)
is made. He suggests some kind of review mechanism to
counteract this.
5
Section
77(2)
6
">
6
See
S v Malcolm
1998 (1) SACR 577
(E) in which a court’s
curtailment of the accused’s evidence constituted a fatal
defect in the enquiry before it
on the basis that it was potentially
crucial to the facts from which the conclusions had to be drawn.
7
This
exchange with the accused demonstrates the obvious prejudice to an
unrepresented person in a Chapter 13 enquiry, particularly
where the
very basis for it arises from him being unable to understand the
proceedings so as to make a proper defence.
8
See
S v Sithole
2005 (1) SACR 311
(W), where it was held that an
assurance from the State that the accused committed the act in
question would suffice. The phrase
“
has committed the act
in question”
carries no connotation of
mens rea
or
criminal responsibility and is intended to refer to the physical
commission of the
actus reus.
The subsection does not
envisage at this stage of the proceedings any enquiry in the nature
of a trial or “
determination”
or “
finding”
in the sense of a verdict or judgment. (At page 314
h
–
i
); See also the unreported judgment in this division in the
matter of S v
Loyiso Makaphela
(CA&R29/10), in which the
court endorsed and followed the approach in
Sithole
in
determining whether the
actus reus
had been committed.
9
See
footnote 8 above
10
2005
(1) SACR 311
(W) at p314-315
11
Sithole,
supra
at p314-315
12
1979
(4) SA 313
(W) See also
S v Sithole supra
13
At
p 324 C-D
14
In
my view the same test in
Sithole
applies to determine whether an offence was
“
not
committed”
as provided for in
section
77(6)
(ii).
15
">
15
I
anticipate this to be the case in view of the fact that it was the
accused’s own representative who first raised the concern
that
he might be unable to understand the proceedings so as to make a
proper defence.