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[2024] ZAECMHC 75
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S v Manyosha (CA&R74/2024) [2024] ZAECMHC 75 (12 September 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MTHATHA]
CASE NO.: CA&R74/2024
In the matter
between:-
THE
STATE
and
ANDA SAKHE
MANYOSHA
ACCUSED
REVIEW JUDGMENT
NORMAN J:
[1]
The Magistrate sitting in Mthatha submitted this matter to this Court
for automatic review
in terms
of section 302
read with sections 303 and 304
of the Criminal Procedure Act
51 of 1977 (“the CPA”) , for correction on the basis that
although the Magistrate made
a finding that the accused is not
capable of understanding the court proceedings so as to make a proper
defense, the Magistrate
erroneously found the accused ‘Not
Guilty
’.
[2]
The Magistrate also brought to the
attention of the Registrar of this court that the review record
did
not contain all the transcribed records because there were
renovations at their offices and as a result they were not able
to
find the recordings in the CRT machine for D Court and were still
looking for those records.
[3]
On 25 March 2024 a query was directed to the Magistrate from this
court bringing to the
attention of the Magistrate that the record was
incomplete and the Magistrate was also requested to confirm the
whereabouts of
the accused. His response to that query was received
by this court on 27 August 2024 although the response itself is dated
15 July
2024. The Magistrate responded as follows “
That some
of the transcribed recordings could not be located and that they were
still looking for them.”
He also stated that “
according
to the investigating officer, Asanda Mabutho, the accused is at home
at the present moment see affidavit attached as Exhibit
“A”.
[4]
The fact that the record in incomplete is undesirable. There
was a delay in referring
this matter to this Court for review. There
were delays in responding to the queries raised. However, this matter
has been pending
for a long time and there has to be finality. This
court does have sufficient information to deal with the issue that is
the subject
of the review.
[5]
The incomplete record, does not, on
the facts of this case and the issue that is the subject
of review,
result in the inability of this court to consider the matter. I am of
the view that considering the matter would not
result in the failure
of justice.
Background facts
[6]
The accused, Mr Anda Sakhe Manyosha, a 30 year old male was charged
with assault in the
Magistrates Court sitting at Mthatha. He was also
charged with contravention of section 17 (a) read with
sections 1
,
5
,
6
,
7
and
17
of the
Domestic Violence Act No.116 of 1998
. An
interim protection order had been issued by the Magistrate on 06
April 2020 in terms of which the accused was ordered
and directed to
refrain from assaulting the complainant, to wit, Ms K[…] M[…].
Ms K[…] M[…] is
the mother of the accused and at
the relevant time she was 61 years old. The protection order
was duly served on the accused
and at the time of the proceedings it
was still in force.
[7]
The State arraigned the accused on the charges that: On 09
April 2020 at or near Old
Payne in the district of Mthatha, he
unlawfully and wrongfully contravened the protection order in that he
unlawfully and intentionally
assaulted Ms K[…] M[…]
by hitting her with fists and open hands. In the alternative, the
State preferred a
charge of assault in that the accused contravened
section 90
of Act No.9 of 1983 (the Transkei Penal Code) by
unlawfully assaulting Ms K[…] M[…] in the manner
described above.
[8]
The trial commenced and the
accused pleaded to the charge on 17 February 2021 prior to the court
holding the enquiry in terms of
section 77 (6) of the CPA (the
enquiry). It appears from the record that the complainant
testified and the accused
attempted to cross – examine her.
This was before another Magistrate. It appears that it was during
cross -examination
that that Magistrate decided to adjourn the
proceedings and directed that the accused be subjected to a
psychiatrist test and that
a report be submitted to court. The
case was later postponed for a social workers report. A social
worker’s report
was indeed filed. In their report, the
social workers, found that the accused was aggressive and was beating
his family members.
They recommended that the accused be sent
to a Treatment Centre for mental observation in terms of section 30
(4) of the Mental
Health Act No. 17 of 2002. Thereafter the
record shows that the case was postponed on several occasions due to
the unavailability
of a bed to accommodate the accused at the Fort
England Hospital. As reflected in the report of the psychologist he
was admitted
only on 18 October 2022 at Fort England Hospital.
The enquiry
[9]
The accused insisted on representing himself. The Magistrate recorded
that he had observed that
the accused was unable to follow the
proceedings. He, correctly, in my view, invoked the provisions
of section 77 (1A) of
the CPA that:
“
(1A)
At proceedings in terms of sections 77(1) and 78(2) the court may, if
it is of the opinion that substantial
injustice would otherwise
result, order that the accused be provided with the services of a
legal practitioner in terms of section
22 of the Legal Aid South
Africa Act, 2014.”
[10]
The Magistrate accordingly found that legal assistance was not merely
desirable but it was necessary and
he appointed
Mr
Diya from the Legal Aid Board to represent the accused.
[11]
The Court proceeded to determine the matter based on medical reports
and documentation dealt with below
as envisaged in section 77 (2) of
the CPA. Amongst the documents that the prosecution placed before
court for entering was the
report of the Director of Public
Prosecutions. The Director of Public Prosecutions had issued a
directive in terms of section 77
(2) of the CPA. He stated, amongst
others, that:
“
(3)
If the court finds that the accused is not capable of understanding
the proceedings so
as to make a proper defence, kindly:
3.1
request the court to make a finding on whether the accused committed
the
act in question, and for that purpose inform the court what
evidence is available in the docket linking the accused to the
offence,
in order to enable the court to determine whether the
accused committed the act; and
3.2
if the court finds that the accused committed the act in question or
any
other offence involving serious violence, request the court to
order that the accused 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 2002
.
·
admitted to and detained in an institution stated in the order and
treated as if he were an involuntary health care user contemplated
in
section 37
of the
Mental Health Care Act 2002
.
·
released subject to some conditions; and
·
released unconditionally.
4.
Please forward to me J.105 and J.15 reflecting an order that
the
accused should be admitted as an involuntary patient to Mthatha
Mental Health Unit for treatment and rehabilitation.”
The
report of the Director of Public Prosecutions was handed in as
Exhibit A.
[12]
The State also relied on the psychiatrist report dated 09 November
2022 compiled by Dr N.S Puzi, a Head
of the Health Establishment or
delegated psychiatrists in terms of
section 79
(1) (a) or (b) (i) of
the CPA and Mr Vazi, a clinical psychologist appointed by court in
terms of section
79
(1) (b) (iv) of the CPA. In
the report they described the nature of the enquiry conducted when
the accused was admitted at Fort
England on 18 October 2022, clinical
interviews, psychological tests, medical investigations and
assessments conducted. They
also dealt with input received from
the multi- disciplinary team, including,
inter
alia,
psychiatrists, medical
officers, psychologists, nursing personnel. They also took into
account collateral information
obtained from the family of the
accused. They diagnosed the mental condition of the accused in
terms of
section 79
(4) (b) as schizophrenia. They found in terms of
section 79
(4) (c) that the accused was unable to follow court
proceedings so as to make a proper defence. They also found
that in terms
of 79 (4) (d) that at the time of the alleged offence
the accused was unable to appreciate
the wrongfulness of the
act in question and was unable to act in accordance with such
appreciation of wrongfulness. They recommended
that the accused
be admitted as an involuntary patient at the Komani Hospital for
treatment and rehabilitation. The psychiatrist
report was handed in
as
Exhibit B
.
[13]
The State in satisfying the requirements of
section 77
(6) of the CPA
and to show on a balance of probabilities that indeed the accused
committed the offence charged with, relied on
the statement of the
complainant who is the mother of the accused as aforementioned. She
had explained that on 09 April 2020 at
about 13h00 she was at her
place of residence at Old Payne together with her son, the accused.
The accused started to take
her food, without asking. When she
confronted him the accused shouted at her, calling her a witch,
insulted her and hit her
with open hands and fists. He was looking
for something to assault her and she ran away. This was not the
first time because
on 31 March 2020 the accused assaulted her and her
daughter. She obtained a protection order against him. That
statement
was commissioned and was admitted into evidence as an
Exhibit ‘C’
. The State also relied on the interim
protection order which was accompanied by a warrant of arrest and
were also handed in as
an Exhibit ‘
D’
and ‘E’,
respectively.
The State closed its case.
[14]
The accused did not lead any evidence. The
State submitted that it had succeeded on a balance of probabilities
to show that the accused committed the offence in question. Mr
Diya, submitted that according to the report of the psychiatrists,
at
the time of the commission of the offence, the accused was unable to
appreciate the wrongfulness of his actions and was unable
to act in
accordance with such appreciation.
[15]
At the end of the enquiry, the court was satisfied that the state had
succeeded in proving, on a balance
of probabilities, that the accused
committed the offence of
assault in
contravention of
section 17
(a)
of the
Domestic Violence Act
116 of 1998
. The court proceeded to find the accused “
NOT
GUILTY as he is not able to follow the court proceedings”.
[16]
The Magistrate issued an Order in terms of
section
78
(6) of the CPA that the accused was to be admitted and detained at
the Komani Hospital as an involuntary healthcare user contemplated
in
Section 37 of the Mental Healthcare Act 3 of 2002.
[17]
According to an affidavit filed by the investigating officer,
Constable Asanda Mabutho, the accused
was released from the Komani
Hospital a year ago. It may be prudent for the Magistrate to request
a report from the Head of the
Komani Hospital to assess whether any
further directives are to be made by the Magistrate.
Issue
[18]
As aforementioned the only basis on which the matter was brought on
review was the fact that the Magistrate
erroneously made the finding
of ‘Not Guilty’ on the basis that the accused was not
able to follow the court proceedings.
[19]
Having considered the record, I am of the view that the Magistrate’s
finding of
‘Not Guilty’
was
irregular for these reasons: First, that finding is not
consistent with the purport of section 77, in terms of which
the
enquiry was held. Second, the Magistrate had found and recorded
in his judgment that the State had succeeded in linking
the accused
to the offence. Third, that finding contradicted the clear and
unambiguous language of section 77 (6) which provides:
“
Section 77 (6):
“
(6) (a)
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-
(i)
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
(ii)
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)
......
and
if the court so directs after the accused has pleaded to
the charge
,
the accused shall not be entitled
under section 106 (4) to be acquitted or to be convicted in respect
of the charge in question
.”
(my emphasis).
[20]
For the sake of completeness section 106 (4) provides:
“
An accused who
pleads to a charge, other than a plea that the court has no
jurisdiction to try the offence, or an accused on behalf
of whom a
plea of not guilty is entered by the court, shall, save as is
otherwise expressly provided by this Act or any other law,
be
entitled to demand that he be acquitted or be convicted.”
[21]
It follows that given the fact that the accused had pleaded to the
charge before the enquiry and the Magistrate
issued an order
referring him to a psychiatric facility for detention as if he were
an involuntary mental health care user, he
was not entitled to a
verdict of ‘
Not Guilty’.
It follows therefore that
the finding of ‘Not Guilty’ stands to be reviewed and set
aside.
[22]
In the circumstances I accordingly make the following Order
:
ORDER
1.
The verdict of “Not Guilty” is reviewed and set
aside.
2.
The Magistrate is directed to request a report from the Head
of the Komani Hospital concerning the accused’s treatment and
rehabilitation and to give any directives necessary in relation
thereto.
_______________________________
T.V NORMAN
JUDGE OF THE HIGH
COURT
I agree.
_______________________________
B.M PAKATI
ACTING – DEPUTY
JUDGE PRESIDENT
Judgment delivered on
:
12
September 2024