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THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA MAIN SEAT

HIGH COURT REF NO: R06/2025
MAGISTRATE CASE NO. LC173/2025
MAGISTRATE SERIAL NO. 01/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) OF INTERESTS TO MAGISTRATES: YES
(4) REVISED.
DATE 17 November 2025
SIGNATURE


In the matter between:

THE STATE

And

A[...] S[...] M[...] (THE ACCUSED)

_________________________________________________________________

REVIEW JUDGMENT
_________________________________________________________________

RATSHIBVUMO DJP
[1]. A plethora of mistakes has marred this case from its inception to this date. What is
saddening is that these errors could have been avoided if just one of the
numerous role players in the adjudication of this matter had been vigilant enough.

This review aims to rectify these errors. This is a perfect example of how a valued
signature, such as that of a judicial officer, can have enormous and sometimes
undesired consequences when applied without careful consideration or discretion.
Some of those consequences could be irreversible.

[2]. The accused in this matter was arrested on 03 August 2025 and appeared before
the Magistrate at Mashishing Magistrate's Court, facing charges of assault by
threats and malicious damage to property, wherein a neighbour’s door to the
house, valued at R564.95 was damaged.

[3]. Due to reports of mental illness brought to the court’s attention , the accused was
admitted to a mental institution for observation in accordance with sections 77 and
78 of the Criminal Procedure Act, No. 51 of 1977 (the Act). On 19 August 2025, a
psychiatrist prepared a report in which the accused was found to suffer from
mental illness and was considered to lack criminal capacity at the time of the
incident. The psychiatrist also requested that Form MC 21 be completed and
submitted to the institution. Form MC 21 provides for the involuntary admission of
a patient at a mental institution under section 77(6)(a)(ii) of the Act, read with
section 37 of the Mental Health Care Act, No. 17 of 2002 (the Mental Health Care
Act).

[4]. On 01 September 2025, the Deputy Director of Public Prosecutions, Adv.
Magwanyana (the DDPP) drafted a cover letter to the Public Prosecutor handling
the case in court (the Public Prosecutor). In the letter, h e instructed her to
complete Form MC 20 and to ask the magistrate to sign it, then have it sent to the
relevant mental institution . Form MC 20 should be distinguished from Form MC
21, which the psychiatrist requested. The scribing of this letter marked the genesis
of the errors in this case.

[5]. The Public Prosecutor obliged without asking why the form to be completed
differed from the one requested in the report she had in her hands. She handed

differed from the one requested in the report she had in her hands. She handed
over Form MC 20 to the Magistrate, who signed it without any question . Unlike
Form MC 21, Form MC 20 directs the detention of a patient in a mental health

institution to be kept as a State patient, pending a judge's decision in chambers as
outlined in section 47 of the Mental Health Care Act.

[6]. It appears the Magistrate did not read the psychiatric report handed over to him by
the Public Prosecutor, although it formed part of the record placed before him . If
he did, he would have realised that the Form he was asked to sign by the Public
Prosecutor differed from the one requested in the psychiatric report. It also
appears that he did not exercise the discretion expected of him as a judicial
officer, as everything submitted to him by the Public Prosecutor was the State’s
application. He was still required to exercise his judicial discretion bestowed on
him by section 77(6)(a)(ii) of the Act, which provides,
“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) 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…” [Emphasis added].

[7]. The proper exercise of that discretion required the Magistrate to know what the

[7]. The proper exercise of that discretion required the Magistrate to know what the
Act mandates him to do in specific circumstances of an accused appearing before
him and what the consequences of signing each form would be. A simple perusal
of section 77 of the Act would have prepared him to exercise that discretion better
when asked to sign a form. Adding to the error from the DDPP and the Public
Prosecutor, the Magistrate signed the form without engaging it, thereby

committing the accused into a mental institution as a State patient, and she has
since been admitted there.

[8]. On 09 September 2025, after realising the mistake made in the covering letter, the
DDPP sent a corrected letter to the Public Prosecutor. By the time this letter
reached the Public Prosecutor, it was too late , as the Magistrate had already
signed Form MC 20, thereby declaring the accused a State patient.

[9]. On 25 September, the Control Prosecutor submitted documents for special
review to the Clerk of the Court, requesting that the High Court review and set
aside the Magistrate's order, as per his signature on Form MC 20, and substitute it
with Form MC 21.

[10]. The review file was presented before a Judge who was acting in this Division at
the time . He has since ceased acting as a Judge. When it was submitted for
review, the record was covered under Form J4, which is commonly used for
automatic review proceedings. On 29 September 2025, the Judge signed J4,
thereby confirming that the proceedings were in accordance with justice, and
returned the file. No judgment was written, and no reasons were provided for the
decision. The fact that no judgment was written or reasons were not furnished is
indicative that, in all likelihood, the Judge did not consider this a special review
case with issues being brought to his attention for review. The pages constituting
a special review were located at the very bottom of the file, with nothing on the
front of the file to indicate that the case was a special review. Nevertheless, the
signing of J4 marked another error.

[11]. It was only on 09 October 2025, after the confirmation of the review through the
signing of J4, that the Acting Chief Magistrate wrote to the Judge President of this
Division, requesting her intervention. This judgment is the result of that
intervention.

[12]. After raising the query with the DDPP and the Magistrate who presided over the

[12]. After raising the query with the DDPP and the Magistrate who presided over the
matter, they all admitted to their contributions to the errors referred to above. In
answering the question on the jurisdiction of this Court to hear a special review on

similar issues that had been laid before another judge before, t he DDPP made a
submission relying on Molaudzi v The State 2015 (8) SACR 341 (CC), that the
High Court has powers to relax the doctrine of res judicata. He also quoted from
the Constitution of the Republic of South Africa , where section 173 thereof
provides,
“The Constitutional Court, the Supreme Court of Appeal, and the High
Court of South Africa each ha s the inherent powers to protect and regulate
their own process and to develop the common law, taking into account the
interests of justice.”

[13]. He further referred this court to a review judgment from the Free State High
Court, penned by Daffue J (Reinders J concurring) of S v M 1, in which the
sequence of events mirrors those in casu. The essence of the judgment, of which
I am in complete agreement, is that, when it is clear that a judge confirmed a
review case in error, this can be rectified by another judge . If the decision by the
Magistrate is to be set aside, the Full Bench of this Division should take that
decision as outlined in the Act.2 The above background facts make it clear that the
confirmation of this case when it was sent for special review was an error, as it
was not reviewed.

[14]. In admitting his mistake, the Magistrate asked that his decision in signing Form
MC 20 should be set aside and that the matter be remitted back to him to sign the
correct form, which is Form MC 21.

[15]. Any approach other than remedying the situation by correcting these errors
immediately would not be in the interest s of justice, given that the accused
remains detained in a mental institution, which would not have occurred had the
Magistrate who first handled the matter paid the necessary attention. It is
incumbent on us as judicial officers to be diligent and always remember that the
accused persons who appear before us, some of whom have waited several days,
weeks or months, and in some cases, in detention, to have us make that one-line

weeks or months, and in some cases, in detention, to have us make that one-line
pronouncement on their fate, which for them, could mean life or death. If we

1 (38/2016) [2018] ZAFSHC 28 (15 March 2018).
2 See section 304 of the Act.

remain conscious of this , applying our minds to such matters would be an effort
worth taking.

[16]. The interest of justice demands that the accused in this case be freed of the
State patient title without delay. A continuous stay in a mental institution as a
State patient could see her detained longer than she would as an involuntary
patient, as provided under section 77(6)(a)(ii) of the Act, read with section 37 of
the Mental Health Care Act. Remitting the case to the Magistrate is unnecessary,
given the potential for further delay, solely for the purpose of signing a correct
form. I will therefore set aside the Magistrate’s decision and substitute it with the
endorsement of Form MC 21.

[17]. For the reasons given above, the following order is made.
17.1 The Magistrate's decision dated 10 September 2025, in which he signed
Form MC 20, is set aside and replaced with the signing of Form MC 21.




TV RATSHIBVUMO
DEPUTY JUDGE PRESIDENT

I agree.
P VENTER
ACTING JUDGE OF THE HIGH COURT


DATE: 17 NOVEMBER 2025