S v Van Graan (A759/2000) [2002] ZAWCHC 58 (1 November 2002)

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[2002] ZAWCHC 58
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S v Van Graan (A759/2000) [2002] ZAWCHC 58; [2003] 1 All SA 331 (C) (1 November 2002)

Republic of South
Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
REPORTABLE
HIGH COURT REF
NO:858/2002
CASE No:A759/2000
MAGISTRATE’S
SERIAL No:71/2000
In
the matter of
THE STATE
and
ADRIAAN VAN GRAAN
JUDGMENT DELIVERED :
1  NOVEMBER 2002
MOOSA, J:
The accused was arraigned
in the Stellenbosch Magistrate’s Court on a charge of theft
(case No A759/2000). He pleaded not
guilty and exercised his right to
silence. He was represented by a legal representative. After the
State presented its case, the
defence closed its case without leading
evidence. On 10 July 2000, the accused was convicted. The matter was
then postponed for
purpose of record and sentence.
In the meantime, the
accused appeared in another court of the same district on a charge of
housebreaking and theft (case No B793/2000).
In that case the accused
was referred for observation in terms of Sections 77 and 78 of the
Criminal Procedure Act, No 51 of 1977
(“the Act”).
Pursuant to Section 79(4) of the Act, the accused was declared unfit
to stand trial and found not to appreciate
the wrongfulness of his
act and to act in accordance with such appreciation. He was
accordingly committed to a psychiatric institution.
On 27 November 2000 when
this matter came before the trial court for sentence, the accused was
not present. The magistrate who originally
presided was not
available, and in terms of Section 275 of the Act, he appeared before
another presiding officer. The prosecutor
handed in the report
obtained in terms of Section 79(4) in case No B793/2000 as an exhibit
(“first report”). The presiding
magistrate, in the light
of the findings in this report, was doubtful whether the proceedings
in this case were in accordance with
justice.  He accordingly
referred the matter to this court for special review in terms of
Section 304A of the Act, with the
request that the conviction be set
aside. Whether this court is competent to do so, is a matter which we
do not have to grapple
with at this stage, in view of the conclusions
that have been reached.
While the special review
was pending a further psychiatric report came to hand (“second
report”). This report was obtained
in another case, No
A618/2002 in which the accused was also referred for observation. The
findings in terms of the second report
were that the accused is fit
to stand trial and to appreciate the wrongfulness of his alleged
offence. There are therefore two
conflicting findings with regard to
the accused’s mental capacity.
In view of this
development, I requested the Director of Public Prosecutions to
comment on two issues. They are:
(a)
whether the trial court can, in the
circumstances of this case, change the plea from guilty to not guilty
in terms of either Section
77(6)(b) and/or 78(6)(b) of the
Criminal
Procedure Act, or
is the court
functus
officio
? And
(b)
whether the trial court can make a finding
that the accused is fit to stand
trial and to appreciate
the wrongfulness of the alleged offence and act in accordance with
such appreciation on the basis of psychiatric
reports obtained in
other cases?
I am indeed grateful to
Adv
Van der Vijver
of the office of the Director of
Public Prosecutions for his well­motivated response.
In the case under special
review, the criminal responsibility of the accused was never
challenged or placed in dispute. The presiding
officer that referred
this matter for special review points out that the accused did not
show signs of mental incapacity; he appeared
normal; there was
nothing from his conduct that indicated that he suffered from mental
illness and the legal representative of
the accused made no mention
of the mental incapacity of the accused prior to him being convicted.
The first report is dated
23 October 2000 and the second report is dated 23 July 2002. In both
reports the clinical diagnosis of
the accused is one of
schizophrenia. However, in the second report, it is qualified by the
words “
in remission”
. The fact that the mental
condition of a person can improve with the passage of time, cannot be
excluded.
Section 77(6)
deals with
the capacity of the accused to understand the proceedings so as to
make a proper defence.  Should the trial court
find that he
lacks that capacity, and he has already been convicted, it can set
aside that conviction, provided the accused has
not yet been
sentenced.
Section 78(6)
deals with
mental illness or mental defect of the accused at the time of the
commission of the offence. The trial court has the
same powers as in
the case of
Section 77(6)
to set aside the conviction of the accused
where he has been convicted, but not yet sentenced.
Section 77(6)(b)
and
Section 78(b)(6)
therefore empowers all trial courts to set aside its
own convictions, provided the special circumstances set out in those
sub­sections
are present. (See
S v VAN AS
1989 (3)
SA 881
(W) 884B­C.) It was therefore not necessary for this
matter to have been submitted to us for special review. I am
supported
in this conclusion by the Director of Public Prosecutions.
In view of the
conflicting findings contained in the two psychiatric reports, the
trial court would be required to determine the
mental state of the
accused at the time of the trial in terms of
Section 77
and his
mental state at the time of the commission of the act in terms of
Section 78.
These two inquiries normally go hand in hand as they are
closely associated in time. Nothing prevents these inquiries from
being
conducted independently of each other or for that matter,
conducting only one inquiry, either the one as envisaged under
Section 77
or that envisaged under
Section 78.
The two psychiatric
reports of the accused, obtained in the other two cases, in my view,
can form the basis for referring the accused
for observation. They,
however, cannot form the basis for determining whether the accused is
fit to stand trial in this matter
and what his mental state was at
the time of the commission of the alleged offence. The Director of
Public Prosecutions also supports
this view. The two psychiatric
reports referred to different offences committed at different times
and are unassociated to the
offence in the present matter.
Once the circumstances
envisaged by
Section 77(1)
exist, the court is obliged to refer the
accused for observation. The provisions of
Section 77(1)
are
mandatory and the court cannot act in terms of
Section 77
unless a
report in terms of
Section 79
is obtained.  (COMMENTARY ON THE
CRIMINAL PROCEDURE ACT by
DU
TOIT et al at page 13­5.)
Likewise, the court cannot make a finding under
Section 78(6)
without
receiving a report in terms of
Section 79
following the procedure
prescribed in
Section 78(2).
(COMMENTARY ON THE
CRIMINAL PROCEDURE
ACT
(
supra
) at page 13­12C.)
I conclude therefore,
that in this matter the trial court would be obliged to refer the
accused in terms of
Sections 77
and
78
for assessment in terms of
Section 79 of the Act. Once the psychiatric reports are obtained, the
trial court can dispose of the
matter in terms of Section 77 and/or
Section 78 of the Act. The trial court is empowered, in terms of
Sections 77(6)(b) and/or
Section 78(6)(b) of the Act, to set aside
the conviction should this be necessary in the light of its findings.
This matter is
accordingly remitted to the trial court to act
accordingly.
E MOOSA
COMRIE, J: I agree.
R G COMRIE