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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CA&R54/2026
In the matter between:
THE STATE
and
MELIKHAYA LOZWA ACCUSED
JUDGMENT – REVIEW
Zono AJ:
Introduction
[1] This matter emanates from the Magistrates Court, Mthatha. The accused
was apparently charged under Case No: D562/2022 for contravening
Section 17(a) read with sections 1, 5, 6, 7 and 17 of the Domestic Violence
Act 116 of 1998. On 23 rd June 2022 the Magistrates Court granted an
order in terms of which the accused was prohibited from inter alia, entering
the complainant’s residence, Peter Lozwa at Ndabeni Location in Qweqwe
Administrative Area, Mthatha. He was further ordered not to assault or
threaten to assault or swear or shout or insult the complainant and his
wife. It was alleged that accused person breached the terms of the
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protection order in that, notwithstanding the terms of the protection order,
the accused had never left the homestead of the complainant ever since the
granting and service of the court order upon him1.
[2] On 12 th April 2023 the matter appeared before court and the Public
Prosecutor addressed the court inter alia, that the court would proceed
with an inquiry in terms of section 77 of the Criminal Procedure Act 51 of
1977 (CPA) regarding the accused capacity to understand the
proceedings. Charges were put to the accused. It does not appear that
accused was caused to plead to the charges put to him. However,
elsewhere in the record it appears that the Magistrate enquired from
the defence attorney if she agrees with the state that it has succeeded to
show on a balance of probabilities, that the accused has committed the act,
to which the defence attorney confirmed and agreed. In the judgment the
Magistrate2 makes reference to the provisions of section 77(6) of the
CPA and sought to rely on and give impression that those provisions were
applicable in the matter. The judgment further demonstrates that a
directive by the Director of Public Prosecutions (DPP) which directed that
the accused be admitted and detained in an institution stated in the order,
was handed in as an exhibit by consent. The DPP’s Directive sought the
accused to be treated as an involuntary healthcare user as contemplated in
section 36 of the Mental Care Act 17 of 2002. It dealt with the matter as a
section 77 matter.
[3] To fortify the impression that the Magistrate was dealing with a section 77
of CPA, in its findings he made the following observation:
1 This presupposes that at the time of the granting and service of the protection order the accused was residing or
staying with or at the complainant’s place.
2 The opening sentence of the judgment.
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“FINDING
In terms of section 77(5) of the Criminal Procedure Act, the court has to
make a finding whether indeed that the accused is not capable of
understanding the proceedings, so as to make a proper defence….
Based in this psychiatrist report, which is done by the expert who
qualified, the court finds that the accused is not capable of understanding
court proceedings, so as to make a proper defence. But now we are left with
the second leg of section 77(6) of the Criminal Procedure Act 51 of 1977 as
amended”(sic).
That finding flew not only from the psychiatric report dated 06 th February
2023 handed in, but also from the directive of the DPP dated 29 th March
2023 expressly invoking the provisions of section 77 of the CPA.
[4] With that said, the Magistrate recorded that he is satisfied that the state
has shown on a balance of probabilities that the accused committed the
act. The Magistrate thereafter entered a verdict of not guilty and as a reason
for that verdict the Magistrate found that the accused is unable to follow
the proceedings and make a proper defence. It is apposite to quote that
finding verbatim as follows:
“The accused is found not guilty as he is not able to follow proceedings and
make a proper defence.” (sic)
Immediately thereafter the magistrate switched and abruptly made
reference to and applied the provisions of section 78(6) of the CPA thus:
“In terms of section 78(6) of Act 51 of 1977, accused is to be admitted and
detained at, in Umzimkhulu Hospital, sorry, sorry not Umzimkhulu Hospital.
At, to be admitted and detailed at Nelson Mandela Academic Hospital in
Mthatha in terms of section 47 of the Mental Health Care Act 17 of 2002” (sic).
That finding permeated through to the charge sheet (J15). An order in
terms section 77(6)(a) (i) of the CPA embodied in MC 20 Form does not
only order that the accused be detained in Nelson Mandela Academic
only order that the accused be detained in Nelson Mandela Academic
Hospital, but also extends the scope of the original order for the accused to
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be temporarily detained in Mthatha remand centre at a correctional health
facility of a prison.
[5] The provisions of section 77(6) and section 78(6) of the CPA are
seemingly conflated. That will be clear if the respective provisions are
discussed hereinunder. The full text of section 77(6) of CPA reads as
follows:
“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 may direct that the accused-
(i) in the case of a charge of murder or culpable homicide or rape or
compelled rape as contemplated in section 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-
(aa) detained in a psychiatric hospital;
(bb) temporarily detained in a correctional health facility of a
prison where a bed is not immediately available in a psychiatric
hospital and be transferred where a bed becomes available, if
the court is of the opinion that it is necessary to do so on the
grounds that the accused poses a serious danger or threat to
himself or herself or to members of the public, pending the
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decision of a judge in chambers in terms of section 47 of the
Mental Health Care Act, 2002;
(cc) admitted to and detained in a designated health
establishment 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;
(dd) released subject to such conditions as the court considers
appropriate; or
(ee) referred to a Children's Court as contemplated in section 64
of the Child Justice Act, 2008 (Act 75 of 2008), and pending such
referral be placed in the care of a parent, guardian or other
appropriate person or, failing that, placed in temporary safe care
as defined in section 1 of the Children's Act, 2005 (Act 38 of
2005); or
(ii) in the case 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 be
(aa) admitted to and detained in a designated health
establishment 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) released subject to such conditions as the court considers
appropriate;
(cc) released unconditionally; or
(dd) referred to a Children's Court as contemplated in section 64
of the Child Justice Act, 2008, and pending such referral be
placed in the care of a parent, guardian or other appropriate
person or, failing that, placed in temporary safe care as defined
in section 1 of the Children's Act, 2005, 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.”
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[6] In the light of the fact that the provisions of section 77 of CPA deal with
the capacity of the accused to understand the proceedings, the court must
then make a finding regarding the accused’s capacity to understand the
proceedings so as to make a proper defence. The Magistrate correctly made
that finding that the accused is unable to understand the proceedings.
Once that finding is made, no verdict must then follow. In fact, the
subsection does not provide for any verdict to be made, either a verdict of
guilty or of not guilty. Under this subsection it is not available to the
court to either convict or acquit. No power to convict or acquit is
conferred upon the court under this subsection.
[7] Courts have a duty to ensure that the doctrine of legality, which is part
of the rule of law, is upheld. The principle encompasses all three arms of
government, i.e. the executive, the legislature and the judiciary3. The courts
are constrained by the doctrine of legality to exercise only those powers
bestowed upon them by the law 4. The doctrine of legality which requires
that power should have a source in law is applicable whenever a power is
exercised. A power can be validly exercised if it is clearly sourced in law5.
In Welkom High School and Another the Constitutional Court6held that:
“1. State functionaries, no matter how well- intentioned, may only do
what the law empowers them to do. That is the essence of the principle of
legality, the bedrock of our constitutional dispensation.”
Although this dictum was made in an administrative context, it applies
to this matter with equal force. The Magistrate had no power to acquit the
accused under section 77 of CPA.
3 Lester v Ndlambe Municipality and another 2014 (1) ALL SA 402 (SCA) ;2015 (6) SA 283 (SCA) Para 24 and
25.
4 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) Para 15.
25.
4 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) Para 15.
5 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) Para 58.
6 Head of Department, Department of Education, Free State Province v Welkom High School and Another;
Head of Department, Department of Education, Free State Province v Harmony High School and another
2014 (2) SA 228 (CC) Para 1.
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[8] It is plain that the Magistrate did not have power to pass a verdict in the
context of section 77(6) of the CPA. The Magistrate exceeded his power
or authority under the circumstances. He acted ultra vires. That conduct
amounts to gross irregularity in terms of section 22(1) (c) of the Superior
Court Act 10 of 2013. Exceeding powers is an incident of gross irregularity
as envisaged in section 22(1)(c) of the Superior Court Act. A decision made
and court order granted in circumstances where the court has no power is
subject and susceptible to a review in terms of section 22(1) (c) of the
Superior Court Act.
[9] I have alluded in the preceding paragraphs to the fact that the Magistrate
conflated the provisions of section 77(6) and section 78(6) of the CPA.
That spells out a material error of law which is also susceptible to review
under section 22(1)(c) of the Superior Court Act 7. The Magistrate
proceeded with the inquiry and made some findings under section 77 of
the CPA. When approaching the end of his judgment, he started dealing
with the matter as if it was a section 78(6) inquiry. No basis at all was laid
for such an approach. It is fundamentally important to note that there are
different considerations that need to be taken into account under the two
sections of the CPA. The two sections are markably different in terms of
their purpose and aim. The first difference is that, section 77 of the CPA
generally deals with the capacity of the accused to understand
proceedings and make proper defence which is not the case in s ection 78
of CPA. Section 77 of the CPA deals with the mental state of the accused
person at the trial. Accused person may not be tried while he or she is
incapable of understanding the proceedings 8 so as to make a proper
7 Jordan v Penmill Investments CC 1991 (2) SA 430 E at 441 B-C; Qozeleni v Minister of law and order 1994
(3) SA 625(E) at 638 E-G; Nelson Mandela Bay Metropolitan Municipality v Nobumba No 2010 (1) SA 579
(ECG) at 584 E-F.
8 S v Mabena and Another 2007(1) SACR 482(SCA); 2007(2) ALL SA 137 SCA Para 12.
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defence and must instead be detained in a psychiatric hospital or a prison
until otherwise directed by a Judge. Section 77 of CPA permits a court to
direct such an enquiry whenever it appears to the court, at any stage, that
the accused is, by reason of mental illness or mental defect, not capable
of understanding the proceedings so as to make a proper defence9.
[10] On the other hand, section 78 of the CPA permits the court to direct such
an inquiry if it is alleged at Criminal proceedings that the accused is by
reason of mental illness or mental defect not criminally responsible for
the offence charged, or if it appears to the court at criminal proceedings
that the accused might for such a reason not be so responsible. The
relevance of the enquiry in the case of section 78 of the CPA is that a person
who commits an act or omission amounting to an offence while suffering
from a mental illness or mental defect that makes him or her incapable of
appreciating the wrongfulness of the act, or acting in accordance with such
an appreciation, is not criminally responsible for the act or omission. In
such a case a court must find the accused not guilty and must direct that he
or she be similarly detained 10. In section 77 enquiry there is no finding
regarding guilt or otherwise of the accused person, which is a
distinguishing phenomenon in section 78 enquiry.
[11] In Mabena11Nugent JA aptly and neatly puts it thus:
“[12] In about September or October 2004 an enquiry into the mental
state of Mr Mabena, who has a history of epileptic seizures, was
directed in terms of ss 77 and 78 of the Criminal Procedure Act.
Those sections, respectively, permit a court to direct such an enquiry
‘whenever it appears to the court at any stage that the accused is by
reason of mental illness or mental defect not capable of understanding
the proceedings so as to make a proper defence’, or if it is ‘alleged at
the proceedings so as to make a proper defence’, or if it is ‘alleged at
9 Section 77 (1) of Criminal Procedure Act 51 of 1977.
10 Section 78(1) and section 78(6) (b) of Criminal Procedure Act 51 of 1977. Accused may be detained if he or
she poses a serious danger or threat to himself or herself or to the members of public.
11 S v Mabena 2007 (2) ALL SA 137; 2007 (1) SACR 482 (SCA) Para 12.
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criminal proceedings that the accused is by reason of mental illness or
mental defect . . . not criminally responsible for the offence charged, or
if it appears to the court at criminal proceedings that the accused might
for such a reason not be so responsible’. The relevance of the enquiry
in the former case is that a person may not be tried while he or she is
incapable of understanding the proceedings and must instead be
detained in a psychiatric hospital or a prison until otherwise directed
by a judge. The relevance of the enquiry in the latter case is that a
person who commits an act or omission amounting to an offence while
suffering from a mental illness or mental defect that makes him or her
incapable of appreciating the wrongfulness of the act, or acting in
accordance with such an appreciation, is not criminally responsible for
the act or omission. In such a case a court must find the accused not
guilty and direct that he or she be similarly detained”.
[12] I have alluded above to the fact that there is no record of the accused
entering a plea. The record does not show that the accused pleaded to the
charges12. After putting the charges to the accused, the Prosecutor sought
the plea to be entered, which request the court rejected. It is therefore
apposite to refer to the record in this regard:
“Prosecutor: …. Now that we have read the charge preferred against
the accused person, we just need to enquire of his plea; your
worship so that we can proceed…. [intervenes]
Court: Forget about the plea. The court will determine it later” (sic).
No plea was thereafter called to be entered in the entire proceedings. That
was a correct approach in terms of section 77 of the CPA. However, in
terms of section 78 a plea is required to be entered. The reason is not far
to fetch. The court is required to make a finding on the accused’s guilt in
terms of section 78(6) of the CPA.
terms of section 78(6) of the CPA.
[13] In Pedro13, the full bench of the Western Cape Division in its
interpretative exercise of the two sections made the following dictum:
“[80] As to the question of a verdict, this was a matter on which counsel were
agreed. I have no difficulty with the referring magistrate’s view that the finding
12 Section 105 and section 106 of Criminal Procedure Act 51 of 1977.
13 S v Pedro 2015 (1) SACR 41 (WCC); 2014(4) ALL SA 114 (WCC) Para 80-81.
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of not guilty in terms of s 78(6)(a) was irregular and incompetent. Section 78(6)
applies where an accused, who has the mental capacity to understand the
proceedings against him as contemplated in s 77, has entered a plea of not
guilty. In terms of ss 78(1A) and (1B) a person is presumed to have been
criminally responsible at the time he perpetrated the alleged offence, and an
accused who puts his criminal responsibility in issue bears the burden of
proving the lack of criminal responsibility. Section 78(6) applies where,
pursuant to criminal responsibility having been raised as an issue, the court
finds that the accused lacked criminal responsibility at the relevant time.
(Throughout this judgment I refer to lack of criminal responsibility only where
it is brought about by mental illness or mental defect.)
[81] Where, by contrast, an accused is not capable of understanding
proceedings as contemplated in s 77, he cannot in the nature of things enter a
plea and the question of his criminal responsibility at the time of the alleged
offence cannot be judicially determined in accordance with s 78. An accused
who by reason of mental illness or mental defect is not capable of understanding
the proceedings may or may not also have lacked criminal responsibility at the
time he perpetrated the alleged offence; either way, he must be dealt with in
accordance with s 77, not s 78. This means that he can be found neither guilty
nor not guilty; no verdict is entered, and instead a direction must be made in
accordance with either sub-para (i) or (ii) of s 77(6)(a). There are several cases
in which erroneous verdicts in terms of s 78(6) have on this basis been set
aside on review (see, for example, S v Matumbela Case 104/02/2012 WCHC
Reference 2/13; S v Hendricks Case B690 WCHC Ref No 13195).
[14] On the authority of Pedro a finding of guilty may only be made if there
[14] On the authority of Pedro a finding of guilty may only be made if there
is a plea of not guilty entered by the accused under section 78(6) of CPA.
By contrast, under section 77(6) of CPA there is no plea required to be
entered or made. The reason is not far to fetch. The accused is unable to
follow or understand the proceedings to make a proper defence.
[15] The unfathomable approach of the Magistrate to conflate the two distinct
provisions of the Criminal Procedure Act14 is at the core of the irregularity.
Such an approach was influenced by a material error of law. It is a
contradiction in terms to deal with a matter in terms of and conduct an
inquiry under section 77(6) of the CPA15, but only make orders rooted in
14 Section 77(6) and 78(6) of Criminal Procedure Act 51 of 1977.
15 And also make some findings under section 77(6) of CPA.
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the provisions of section 78(6) of the CPA. I have explained above how
and to what extent the provisions of section 77 and 78 of the CPA are
different. As the enquiry was in terms of section 77 of the CPA, it was
incompetent of the Magistrate to make orders which do not flow from
those provisions, but from different provisions 16. I have stated above that
the provisions of section 77 and 78 of the CPA deal with different
situations and circumstances17.
[16] The conclusions and orders based on the provisions of section 78(6) of the
CPA preponderantly appear in different parts of the court record or
documents. The charge sheet(J15) records same as follows:
“Judgment 12-04-2023 not guilty not able to follow proceedings and make a
proper defence. Sentence in terms of section 78(6) of Act 51 of 1977, accused is
to be admitted and detained in Nelson Mandela Academic Hospital in Mthatha
in terms of section 47 of the Mental Health Care Act 17 of 2002” (sic).
A verdict of guilt is consistent with the provisions of section 78(6) of CPA,
but a finding that the accused is not able to follow proceedings and make
a proper defence is an incident of section 77(6) of the CPA. These two
orders do not legally sit together comfortably. The order making reference
to section 78(6) is repeated in J4, which is a review case covering form.
The MC20 form records an order in terms of section 77(6) (a)(i) of the
Criminal Procedure Act No 51 of 1977. I will not decide if the accused
failure, without more, to leave complainant’s homestead 18 is a charge
involving serious violence in terms of section 77(6)(a) (i) of the CPA.
16 Section 78(6) of the Criminal Procedure Act 51 of 1977.
17 Section 77 of the Criminal Procedure Act 51 of 1977 provides for the capacity of the accused to understand
proceedings; whereas section 78 provides for accused’s criminal responsibility at the time of the act or
omission.
omission.
18 Which was the offence with which the accused was charged.
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Remedy
[17] It is commendable that the magistrate concerned accepts in his letter dated
28th September 2023 that he granted orders (rulings) that are
contradictory in the following specific terms:
“ Magistrate agrees with an Honourable Judge that there are 2
rulings which are contradictory and it was an error on my part, I
sincerely apologise for that”(sic).
This now leads to a remedy. The Director of Public Prosecutions, Eastern
Cape, Mthatha(DPP) in its letter dated 07th July 2024, after having pointed
out that the Magistrate has committed an irregularity, suggested the
remedy as follows:
“It is therefore my respectful opinion that these proceedings were a
nullity and as such should be set aside and the matter be referred
back to the Magistrate who dealt with it to issue a correct
order”(sic).
There is no contrary suggestion to the one proposed by the DPP. It is
appreciable that the Magistrate understands what he should have done and
what needs to be done.
[18] The gravamen of the DPP’s complaint lies with the nature of the orders
granted and not with the manner in which the proceedings were conducted.
Nothing taints the proceedings or inquiry, therefore there is no basis for
setting them aside. Only the contradictory orders that need to be set aside19.
The practical effect of setting aside only the decision (order) is that the
proceedings from which the decision (order) emanates are still extant
before the Magistrate. In those circumstances the best order to make
therefore would be to remit the matter back to the Magistrate who made
19 Matiwane v President of the Republic of South Africa and others 2019 (3) ALL SA (ECM) Para 27;
Hlamandana and another v Premier Eastern Cape Provincial Government and others (2227/2023) [2025]
ZAECMH1 (4 February 2025) Para 54.
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the impugned orders for a lawful, competent order or decision to be made
or taken.
[19] However, in paragraph 12 above I have alluded to the fact that charges
were put to the accused, although that he was not called upon to plead
thereto. It would be inconsequential to allow the charges to be put to the
accused when it is clear that the accused is not going to plead thereto.
Putting charges to the accused is an integral part of pleading. If it transpired
from the beginning that the accused may not be capable of understanding
and following the proceedings so as to make a proper def ence the
enquiry in terms of section 77 of CPA should have been started without
putting the charges to the accused. Putting charges when it has transpired
that the accused may not understand or follow the proceedings is plainly
inconsistent with the provisions of section 77 of CPA. Putting charges is a
step initiating the conduct of the criminal proceedings or trial. The
provision proscribes that the proceedings may be commenced with when it
is manifest that the accused is incapable of understanding the proceedings.
The step of putting charges in circumstances where it is plain that the
accused is incapable of understanding the proceedings is irregular. That
step vitiated and tainted the entire proceedings and rendered them to be
susceptible to be reviewed and set aside.
Order
[20] I accordingly make the following order:
1. The proceedings and the orders granted by the Mthatha
Magistrate under Case No: D562/2022 on 12th April 2023 be and
are hereby reviewed and set aside.
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2. The matter under Mthatha Case No. D562/2022 is remitted and
referred back to the Magistrate Court to start de novo.
_________________________________
A.S ZONO
JUDGE OF THE HIGH COURT (ACTING)
I agree
____________________________________
JOLWANA J
JUDGE OF THE HIGH COURT
Delivered on : 17 June 2026