S v Potgieter and Another (Review no.642/07,643/07) [2007] ZAFSHC 116 (20 September 2007)

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[2007] ZAFSHC 116
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S v Potgieter and Another (Review no.642/07,643/07) [2007] ZAFSHC 116 (20 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 642/07
643/07
In
the reviews between:-
THE
STATE
versus
GERHARD
JACOBUS POTGIETER
(Review
No. 642/07)
JEREMIA
SERAME MOKHUANE
(Review No. 643/07)
_______________________________________________________
CORAM:
KRUGER,
J et C J MUSI, J
_______________________________________________________
JUDGMENT
BY:
KRUGER,
J
_______________________________________________________
DELIVERED
ON:
20
SEPTEMBER 2007
_______________________________________________________
[1] The
magistrate at Odendaalsrus sent these two cases on review. Both deal
with
sections 77
,
78
and
79
of the
Criminal Procedure Act, 51 of
1977
. Those sections provide a special procedure for persons who
cannot function according to society’s normal rules because of
their
mental inadequacy. Simplistically stated, it is unfair to
subject them to those rules.
Section 78
(the “then” question)
deals with ability at the time of the offence.
Section 77
(the “now”
question) deals with ability to understand court proceedings and take
part in the trial.
[2] These
two cases were sent on review by the trial magistrate, in spite of
the fact that orders under
sections 77
and
78
of the
Criminal
Procedure Act, 51 of 1977
, are not reviewable (see
S
v WILLS
[1996] 4 ALL SA 270
(T),
1996 (2) SACR 105
(T) at 108 a – b,
Hiemstra
SA
Strafproses
6 edition page 207) a judge in chambers does not play any part in an
order under
section 77(6)
S
v MALCOLM
1998 (1) SACR 577
(ECD) at 581 a – c. The view in
S
v RAMOKOKA
[2006] ZAGPHC 37
;
2006 (2) SACR 57
(W) in paragraph [12] that a form of review is
desirable at orders under
Section 77
has not been taken up in
legislation. That proposal is not without merit.
[3] Courts
use the power to review under the common law, as supplemented by
Constitution 173 sparingly (see
S
v WILLIAMS
2005 (2) SACR 290
(C) and will only review if special circumstances
are present (paragraphs [37] – [38]). In these two reviews there
were irregularities:
(1) legal representation as contemplated by
section 77(1A) was not considered. No legal representatives were
appointed; (2) the
psychiatric reports were not properly placed
before the court; (there was no consent by the defence, and the
experts did not testify);
(3) In Review No. 642/07 an order for
committal under section 78 (on form MC22) was signed by the
magistrate although his finding
on the J15 was one under section 77
only; (4) In Review No. 643/07 an order was made under section 77 for
which there was no basis,
even in the medical “evidence” (the
report of Professor Pretorius concludes in paragraph 3.2 that the
accused is able to follow
court proceedings (section 77)). In the
premises these are appropriate cases where the court’s common law
powers of review should
be used. (
S
v RAMOKOKA
,
supra
par. [14]).
I
S
v GERHARD JACOBUS POTGIETER
(Review No. 642/07)
[4] The
accused was charged with malicious injury to property in the
magistrates’ court at Odendaalsrus. The magistrate declared
the
accused a state patient under
section 77(6)(a)(i)
of the
Criminal
Procedure Act, 51 of 1977
.
[5]
Section 77(6)(a)
provides for a “trial of the facts” in a case where the court
finds that the accused does not have the ability to understand
court
proceedings so as to enable the accused to conduct a proper defence.
In response to my enquiry whether the magistrate found
that it was
not in the accused’s interest to direct an investigation as
contemplated in
section 77(6)(a)
, the magistrate reported that he did
not make such finding. He says he also did not try to determine, on
the evidence available,
whether the accused indeed perpetrated the
act (as contemplated in
section 77(6)(a)).
The magistrate also did
not ask the accused whether he disputes the report of Dr. Nichol, the
psychiatrist who reported on the mental
condition of the accused
after observation, as contemplated in
section 77(2).
In the
premises, that report was not admissible.
[6] There is also a
statement by the mother of the accused attached to the papers. It is
not clear from the record how that document
became part of the
proceedings. The magistrate concedes it is inadmissible as evidence.
[7] The magistrate made
an order in terms of
section 77.
Yet he also signed an order in
accordance with
section 78(6)
, (on form MC22). The magistrate
confirms that he did not make an order in terms of
section 78(6).
Therefore the form MC22 should not have been signed by him.
[8] The magistrate also
did not, in terms of
section 77(1A)
, order that the accused be
provided with the services of a legal practitioner in terms of
section 3B of The Legal Aid Act, 22 of
1969, as he should have done.
(See the Directives under GN 292 of 28 February 2002 (Government
Gazette 23176) in particular paragraph
2.1, dealing with substantial
injustice).
[9] The
magistrate has requested that his order be set aside, the accused be
released, and brought to court again. That request should
be acceded
to. The accused must be released from detention after arrangements
have been made by the Senior Public Prosecutor at
Odendaalsrus with
the head of the establishment where the accused is being detained.
Upon release the accused must be handed to
the police who must
forthwith take him to appear before magistrate Mr. T.J. Mamburu at
Odendaalsrus, to deal with the matter in terms
of
section 77
of the
Criminal Procedure Act, 51 of 1977
, or such other provisions as may
become relevant. At such resumed hearing:
(1) A proper charge sheet
should be framed (the annexure attached to the J15 is blank), stating
the date and nature of the alleged
malicious injury to property.
(There are apparently two counts of malicious injury to property.)
(2) A legal
representative should be appointed for the accused as contemplated in
section 77(1A).
This should be done in collaboration with the local
Legal Aid Board.
(3) The
State should lead evidence of someone who can testify that the
accused performed the act(s), i.e. that he damaged the property.

Alternatively “information” to that effect should be placed
before the court (the attitude of accused’s legal representative
is
relevant here).
(4) The legal
representative for accused should be asked whether the report of Dr.
Nichol can be handed in by consent as contemplated
in
section 77(2).
(5) Once
information or evidence has established that the accused “committed”
the act in question, and once the report of Dr.
Nichol is properly
before the court (after consent by the defence attorney, or, failing
that, after Dr. Nichol has testified), the
court will be in a
position to decide whether the accused is fit to stand trial (par.
3.1 of Dr. Nichol’s report).
(6) If
the magistrate makes a finding that the accused is not fit to stand
trial, that finding should be recorded on the J15. Form
J105 should
be completed, with the 2
nd
and 3
rd
parts of paragraph 4 thereof deleted.
II
S
v JEREMIA SERAME MOKHUANE
(Review
No. 643/07)
[10] In
this case, the accused was charged with (1) assault with intent to do
grievous bodily harm, (2) contravention of a protection
order
(domestic violence), and (3) attempted rape. It appears from a
statement of the daughter of the accused that the accused assaulted
his wife by hitting her with a beer bottle and broken photo frame.
He has not been living with them for the past three to four years.

One evening he came to her room without pants on and pulled down his
daughter’s pantie. She rushed out to her mother’s room.
[11] The accused was sent
for observation and Professor Pretorius found that he suffers from
“Tuberculosis medication induced psychotic
disorder”, and that he
was fit to stand trial but not able to distinguish between right and
wrong at the time of the alleged crime.
[12] According to the J15
the magistrate made a finding under
section 77(6)(a)(i)
that the
accused was not fit to stand trial. Such finding is contrary to the
report of Professor Pretorius, according to which the
accused is fit
to stand trial, but was not criminally responsible at the time of the
alleged offence.
[13] The accused must be
released from detention after arrangements with the Senior Public
Prosecutor at Odendaalsrus have been made.
Upon release the accused
must be handed to the police who must forthwith take him to appear
before magistrate Mr. T.J. Mamburu at
Odendaalsrus, to deal with the
matter in terms of
section 77
of the
Criminal Procedure Act, 51 of
1977
, or such other provisions as may become relevant. At the
resumed hearing:
(1) A proper charge sheet
should be framed (the annexures to the J15 are blank).
(2) A
legal representative should be appointed for the accused as
contemplated in
section 77(1A).
This should be done in collaboration
with the local Legal Aid Board.
(3) Evidence,
or admissions through the legal representative should be placed
before the court to enable the court to make a finding
in terms of
section 78(6)
“that the accused committed the act”. (This is a
purely factual finding –
S
v MAHLINZA
1967 (1) SA 408
(A) at 415 H – 416 A.) The court must enquire into
the facts (see Kruger,
Mental
Health Law in South Africa (1980)
181 – 182, fn 157).
(4) The legal
representative for accused should be asked whether the report of
Professor Pretorius can be handed in by consent as
contemplated in
section 78(3).
(5) Once
the State has established that the accused “committed” the act in
question, and once the report of Professor Pretorius
is properly
before the court (after consent by the defence attorney, or, failing
that, after Professor Pretorius has testified),
the court will be in
a position to decide whether the accused is criminally responsible as
contemplated in
section 78
(par.
3.1
of the report by Professor
Pretorius).
(6) If
the magistrate makes a finding that the accused is not criminally
responsible, that finding should be recorded on form J15.
Form J105
should be completed, with the 1
st
and 3
rd
parts of paragraph 4 thereof deleted.
[14] The
following order is made in Review No. 642/07 (Potgieter):
1. The order by the
magistrate on 22 June 2007 that the accused be declared a state
patient in terms of
section 77(6)(a)(i)
of Act 51 of 1977 is set
aside.
2. The accused must be
released from detention and forthwith taken to magistrate Mr. T.J.
Mamburu at Odendaalsrus to deal with the
matter in terms of section
77 of Act 51 of 1977, or such other provisions as may become
relevant.
[15] The
following order is made in Review No 643/07 (Mokhuane):
1. The order by the
magistrate on 22 June 2007 that the accused be declared a state
patient in terms of section 77(6)(a)(i) of Act
51 of 1977 is set
aside.
2. The accused must be
released from detention and forthwith taken to magistrate Mr. T.J.
Mamburu at Odendaalsrus to deal with the
matter in terms of section
78 of Act 51 of 1977, or such other provisions as may become
relevant.
____________
KRUGER, J
I concur.
___________
C.
J. MUSI, J
/sp