IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION : MTHATHA
REVIEW CASE NO. CA&R114/2025
In the matter between:
STATE
And
NOXOLO SOMGQEZA ACCUSED
REVIEW JUDGMENT
SOMACALA AJ
[1] This matter was referred to this court for ‘special review’ by the office of the
Director of Public Prosecutions (DPP), Mthatha. The basis upon which this matter comes for
‘special review’ is that accused is facing a charge of murder in which the provisions of
section 51(2) of the Criminal Law Amen dment Act 105 of 1997 is applicable, and that upon
obtaining the charge sheet of this case the office of the DPP observed that the accused was
declared a State Patient by a district court magistrate who had no jurisdiction over the
matter as it is justicia ble in the regional court and therefore such order should have been
issued by the regional court magistrate.
[2] This matter has a long and unpleasant history immersed with problems dating 2014
which persisted unabated till to date. It is unfortunate that accused is in custody as she was
arrested on 01 May 2014.
[3] The original record of the proceedings is missing, and this, on its own, demonstrate
the tribulations that have befallen this matter. The copies of the record appear to be
incomplete as can be g leaned from correspondence dated 04 May 2018, from the office of
the DPP, Mthatha, stating; “On 26 April 2018, the Review Judge Justice Toni AJ issued a
query on the matter, which were (sic) addressed on 02 May 2018” . The query referred to in
the letter i s not on the file and I do not have its benefit. There is a letter from the office of
the DPP dated 26 April 2018, addressed to the Reviewing Judge, which, in the face of it,
appears to be addressing a query which may have been raised. On the file there is no letter
dated 02 May 2018 from the office of the DPP.
[4] It is important to note that, on my assessment of the record, I have queries that I
would have raised with the magistrate pertaining the proceedings at the district court, but
lucidity proclaims that I desist from doing so, as that will be a fruitless exercise which will
bear more prejudice to the accused, because as a matter of fact the magistrate who had
presided over this matter has since left his service of employment.
[5] The total evaluation of the copies of the record provide a clear understanding of
what happened in court. It is on that basis that I will deal with it as it is presented before
me. It is not in the interests of justice to return it back to the district court to attend to my
queries as that will not yield any positive results, and to do so would be to unnecessarily
prolong its finalization. The longer the delays of this matter, the more prejudice suffered by
the accused.
[6] The accused first appeared in the district court on 0 2 May 2014, facing a charge of
murder, and the matter was postponed to 15 May 2014 for accused to apply for legal aid.
She was remanded in custody.
[7] The record of 15 May 2014 reflects;
“15/05/2014
Presiding Officer: Mr Mgudlwa
State Prosecutor: Ms Maarman
Court Clerk: Mr Pita
Interpreter: Ms Mtakati
Accused appears
PP reports Investigating Officer has a feeling accused is mentally
disturbed. (my emphasis)
Remanded in custody 22/05/2014 for accused to be seen by a District
Surgeon to evaluate her mental capacity.
MAGISTRATE MGUDLWA”.
It appears from the record that on this day accused did not have a legal representative and
there is no indication about the outcomes pertaining her legal aid. The record does not
show that accused was given an opportunity to address court on any issue. It is the events
of this day which culminated to the accused being detained at Komani Hospital.
[8] On 21 May 2014 accused was examined by Dr S. Jwaqa, who recorded;
“21/05/2014
Re:- Noxolo Songqeza (CR No. 01/05/2014)
Mental state examination revealed that the patient was psychotic as
evidenced by impaired cognitive function.
I recommend that she be admitted for a 30 day observation at a
mental institution.”
[9] On 08 September 20 14, two psychiatrists and a psychologist, from Fort England
Hospital prepared a psychiatrists report in respect of the accused and they recommended
that she be admitted at Komani Hospital as a State Patient in terms of section 42 of the
Mental Health Care Act.
[10] The record reflects that in the period between 15 May 2014 and 10 September 2014,
the matter was postponed for four times, and on three occasions during those court
appearances she was legally represented. The case would be postponed for various reasons
and with no submissions were made by her legal representatives.
[11] On 10 September 2014, the record reflects;
Presiding Officer: Mr Mgudlwa
State Prosecutor: Mr Dwakaza
Interpreter: Mr Mbovane
Defence: In person
Accused appears
Mr Dwakaza hands in report and Fort England Exh “A” in terms
of section 42 of Mental Health Act and accused is committed
to Komani Hospital as a State Patient as recommended by
Panel of Experts at Fort England.
MAGISTRATE: MR MGUDLWA.
It is apparent from the record of proceedings that on the day of the granting of the order
committing accused for detention at Komani Hospital, she was not legally represented.
[12] Section 77(1) of the Criminal Procedure Act 51 of 1977 (the Act) provides, “If it
appears to the court at any stage of the proceedings that the accused by reason of mental
illness or mental defect not capable of understanding the proceedings so as to make a
proper defence, the court shall direct that the matter be enquired into and b e reported on
in accordance with the provisions of section 79.” The enquiry envisaged by section 77 of the
Act prescribes a two stage approach, firstly the court has to satisfy itself about accused’s
mental status and his capability to understand the proce edings so as to make a proper
defence. The court has to gather all the evidence to assist in this regard including sending
the accused to a District Surgeon for observation and prima facie opinion. The court shall
thereafter direct that the matter be enqui red into and be reported on in accordance with
the provisions of section 79 of the Act.
[13] The second enquiry which shall be done by a court with substantive jurisdiction
follows after receipt of a report by two psychiatrist who had examined the accuse d. During
the second enquiry issues to determine are, firstly, did the accused commit the offence with
which charged. In doing so the court has to consider all the limited evidence available on a
balance of probabilities. Secondly, the court has to consider whether the offence committed
by the accused is a serious violent crime or not. If the finding of the court is that, the
accused, prima facie committed a serious violent act the order shall be made in terms of
accused, prima facie committed a serious violent act the order shall be made in terms of
section 77(6)(a)(i) of the Act. Where the co urt finds that the accused, prima facie, did not
commit the offence or that the offence committed is not serious and violent it shall issue an
order in terms of section 77(6)(a)(ii)(aa).
[14] In my view the provisions of section 77(1) of the Act do not pre clude the court of
first instance to enquire into the mental status of the accused in so far as the first stage of
the enquiry and the second leg of the enquiry is exclusively reserved for the court with
jurisdiction. The challenge reminiscent to section 7 7 enquiry where the court has no
substantive jurisdiction is the prejudice suffered by the accused who is in custody. This
evolve from the delays which normally precede transfer of cases from the district court to
the trial court. It cuts both ways, whethe r the lower court initiates the first stage of enquiry
or it does not, it is the accused who is in custody who get affected by the procedural delays.
[15] Section 77(1A) of the Act provides, “At proceedings in terms of sections 77(1) and
78(2) the court ma y, 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 3 of the Legal Aid Amendment Act, 1996 (Act 20 of 1996)." 1 Section 35 (2) (c) of the
Constitution provides, “Everyone who is detained, including every sentenced prisoner, has
the right – to have a legal practitioner assigned to the detained person by the state and at
state expense, if substantial injustice would otherwise result, and to be informed of this
right promptly.”2
[16] In S v MATU3, the Honourable Hartle J, stated, “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.
The object of thi s order, however, is to ensure that fundamental rights of the accused are
The object of thi s order, however, is to ensure that fundamental rights of the accused are
respected in that process.” Section 77 (1A) provisions are discretionary in nature but cannot
override the fundamental right of accused as provided for by the Constitution. In my vie w,
the mere fact that doubt has been created about the accused mental status in a criminal
case calls him or her to be provided with legal representation. The glaring feature of this
matter is that accused was a mere spectator with no voice as she was nev er afforded an
1 now repealed by section 22 of Legal Aid South Africa Act 39 of 2014
2 Act 108 of 1996
3 2012 (1) SACR 68 (ECB)
opportunity to address the court despite that the outcomes of the whole process had a
bearing on her liberty.
[17] The approach adopted by the magistrate in this matter is absurd and disturbing. It
demonstrates a clear lack of understanding of substantive law and procedure on the
applicability of the provisions of sections 77; 78 and 79 of the Act. Firstly, the magistrate
acted on what the State prosecutor referred to as “ the feelings of the investigating officer
that the accused is mentally disturbed.” The magistrate issued an order in terms of section
77(1) without conducting an enquiry to satisfy himself that by reason of mental illness or
defect the accused was not capable of understanding the proceedings so as to make a
proper defence.
[18] The district court does not have jurisdiction to try a case of murder. In this matter,
the district court magistrate lacked the authority to issue an order in terms of section 77 (6)
of the Act. The magistrate failed to conduct an enquiry to determine whether on the limited
evidence, the accused prima facie, committed an offence of a serious violence crime.
[19] The magistrate committed the accused to be detained at Komani Hospital as a State
Patient without affording her the right to legal representat ion when it was conspicuously
clear that the order he issued had all the traits of causing substantial injustice to the
accused.
[20] The whole process followed by the magistrate in the purported section 77 enquiry of
this matter is flawed and grossly irre gular. It eludes me how it came about that this matter
came to the attention of the office of the Director of Public Prosecutions five years after the
order detaining the accused as a State Patient was granted by the magistrate, and it took
almost another seven years for it to reach finality. It is rather unfortunate that despite all
the more than a decade long prejudice that the accused had to endure, this matter has to
start afresh.
[21] In the result, I make the following order:
start afresh.
[21] In the result, I make the following order:
1. The order of the magistrate detaining Noxolo Somgqeza at
Komani Hospital as a State Patient in terms of section 77
(6) of the Criminal Procedure Act 51 of 1977 (as amended)
is hereby reviewed and set aside.
2. The matter is remitted back to the magistrate court to
deal with the accused in terms of sections 77, 78 and 79 of
the Criminal Procedure Act.
3. The Senior Magistrate, Lady Frere, must facilitate the
immediate release from detention of Noxolo Somgqeza at
Komani Hospital, unless the medical superintendent of the
said hospital recommends that in her best interests she
remains kept in hospital as an i n-patient for medical
reasons.
_______________________________
B SOMACALA
ACTING JUDGE OF THE HIGH COURT
I agree
B R TOKOTA
ACTING DEPUTY JUDGE PRESIDENT
DELIVERED ON : 13 NOVEMBER 2025