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[2015] ZACC 21
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De Vos N.O and Others v Minister of Justice And Constitutional Development and Others (CCT 150/14) [2015] ZACC 21; 2015 (2) SACR 217 (CC); 2015 (9) BCLR 1026 (CC) (26 June 2015)
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Heads of arguments
CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 150/14
DATE: 26 JUNE 2015
In the matter between:
ANNA-MARIE DE VOS
N.O
..........................................................................................
First
Applicant
MARIA
STUURMAN
..................................................................................................
Second
Applicant
SARAH
SNYDERS
........................................................................................................
Third
Applicant
MORNAY CALITZ
N.O
..............................................................................................
Fourth
Applicant
And
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.........................................................................................................
First
Respondent
MINISTER OF
HEALTH
........................................................................................
Second
Respondent
DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
.......................................................................................................
Third
Respondent
And
CAPE MENTAL
HEALTH
.............................................................................................
Amicus
Curiae
Neutral citation:
De
Vos N.O. and Others v Minister of Justice and Constitutional
Development and Others
[2015] ZACC 21
Coram:
Mogoeng CJ,
Moseneke DCJ, Froneman J, Khampepe J, Leeuw AJ,
Madlanga J, Nkabinde J, Tshiqi AJ,
Van der Westhuizen
J and Zondo J
Judgment:
Leeuw AJ (unanimous)
Heard
on:
17 November 2014
Decided
on:
26 June 2015
Summary:
Criminal
Procedure Act 51 of 1977
—
section 77(6)(a)(i)
— capacity
of accused to understand proceedings — constitutionally invalid
to the extent that it mandates the imprisonment
of an adult accused
person — and to the extent that it mandates the hospitalisation
or imprisonment of children
Criminal Procedure Act 51 of 1977
—
section 77(6)(a)(ii)
— capacity of accused to understand
proceedings — constitutionally invalid — to the extent
that it mandates the
institutionalisation of accused
ORDER
This is an application for confirmation of the order
of the Western Cape Division of the High Court, Cape Town:
1. The declaration of invalidity made by the Western
Cape Division of the High Court, Cape Town, on 5 September 2014
is not
confirmed.
2.
Section 77(6)(a)(i)
of the
Criminal Procedure Act
51 of 1977
is declared to be inconsistent with the Constitution and
invalid to the extent that it provides for:
(a) compulsory imprisonment of an adult accused
person; and
(b) compulsory hospitalisation or imprisonment of
children.
3. The declaration of invalidity is suspended for a
period of 24 months from the date of this judgment in order to
allow Parliament
to correct the defects in light of this judgment.
4.
Section 77(6)(a)(ii)
of the
Criminal Procedure Act
51 of 1977
is declared to be inconsistent with the Constitution and
invalid. From the date of this order
section 77(6)(a)(ii)
is to
read as follows:
“
(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 17
of 2002;
(bb) be released subject to such conditions as the
court considers appropriate; or
(cc) be released unconditionally.”
5. The orders in paragraphs 2 and 4 are not
retrospective.
JUDGMENT
LEEUW AJ (Mogoeng CJ,
Moseneke DCJ, Froneman J, Khampepe J, Madlanga J,
Nkabinde J, Tshiqi AJ,
Van der Westhuizen J and
Zondo J concurring):
Introduction
[1]
This is an application for confirmation
[1]
of a declaration of constitutional invalidity of
section 77(6)(a)(i)
and (ii) of the
Criminal Procedure Act.
[2
]
These confirmation proceedings concern the constitutionality of the
impugned provisions to the extent that a presiding officer
is
required to institutionalise, imprison or place a mentally ill or an
intellectually disabled accused person in a psychiatric
hospital.
Griesel J, in the Western Cape Division of the High Court, Cape
Town (High Court) held that the impugned section
is peremptory and
thus inconsistent with the Constitution in that it infringes a
mentally ill or an intellectually disabled person’s
right to
freedom and security of the person
[3]
as well as children’s rights.
[4]
[2]
A three-stage process governs the treatment
of an accused suspected of lacking the capacity to understand court
proceedings.
First, an accused person is referred for
observation in terms of
section 77(1).
[5]
Second, an investigation into the mental capacity of the accused is
conducted and reported on as prescribed by
section 79.
[6]
Thereafter, the court has wide discretionary powers in terms of
section 79(2)(c).
[7]
[3]
Third, if there has been a request by a
prosecutor that the accused person be dealt with in terms of
section
77(6)
and the court has exercised its discretion to refer the accused
to a court having jurisdiction in terms of
section 75
, then the
processes of
section 77(6)
will apply. A “trial of
the facts” may follow.
[8]
This is in order to assess whether, on a balance of probabilities,
the accused was involved in committing the offence.
If found to
have committed a serious offence contemplated in
section 77(6)(a)(i)
“the court shall direct that the accused . . . be detained in a
psychiatric hospital or prison pending the decision of a
judge in
chambers”. In terms of
section 77(6)(a
)(ii), if it
is established, on a balance of probabilities, that the accused
committed a minor offence or has not been found to
have committed any
offence, “the court shall direct that the accused . . . be
admitted to and detained in an institution”.
The Parties
[4]
The
first applicant, Ms De Vos N.O., is a
curator
ad litem
appointed by the High Court to
represent Mr Stuurman, who has an intellectual disability. The
second applicant, Ms Stuurman,
is the mother of Mr Stuurman.
The fourth applicant, Mr Calitz N.O., was appointed as
curator
ad litem
by the High Court to represent
Mr Snyders who also has an intellectual disability. The
third applicant, Ms Snyders,
is the mother of Mr Snyders. The
respondents are the Minister of Justice and Constitutional
Development, the Minister of
Health and the Director of Public
Prosecutions, Western Cape (DPP). Cape Mental Health, a
voluntary association and non-profit
organisation working as a
specialist organisation in the area of mental health, applied and was
admitted as
amicus curiae
(a friend of the court).
Background
[5]
Mr Stuurman and Mr Snyders face charges of
murder and rape respectively. The proceedings in terms of
section 77(6)(a)
have been postponed pending the outcome of the
constitutional challenge. Their matters commenced as separate
applications
that were subsequently consolidated and heard together
in the High Court in light of the similarity of the relief sought.
In the Stuurman matter, the accused was 14 years old when, in 2005,
he allegedly stabbed a 14 year old girl to death. He
was
arraigned for murder in the Oudtshoorn Regional Court. He
sustained a serious head injury at the age of five years which
left
him severely intellectually disabled. For this reason, the
Magistrate referred him for observation in terms of
sections 77(1)
[9]
and 78(2)
[10]
read with
section 79
[11]
of the
Criminal Procedure Act. He
was evaluated by three
psychiatrists. They agreed that he would not be in a position
to understand court proceedings, and
could not appreciate the
wrongfulness of his actions.
[6]
In
the Snyders matter, Mr Snyders, who is currently 35 years old, was
charged with the rape of an 11 year old girl. When he
appeared
in the Magistrates’ Court, he was referred for observation in
terms of
section 77(1)
of the
Criminal Procedure Act. He
was
assessed by three psychiatrists who unanimously found that he
suffered from “moderate mental retardation”.
They
found that he could not appreciate the wrongfulness of his conduct
nor was he capable of understanding the court proceedings.
They
advised against an order declaring him a State patient because his
cognition would never improve, given his intellectual disability.
In this matter the Magistrate, without conducting the requisite
factual enquiry, immediately issued a detention order in terms
of
section 77(6)(a)(i).
This was then brought on special review
before Griesel J and Henney J who referred the matter back to the
Magistrate to comply
with the procedure in terms of
section 77(6)(a).
In the High Court
[7]
In
the Stuurman matter the constitutional validity of
section
77(6)(a)(i)
of the
Criminal Procedure Act was
challenged, and in the
Snyders matter the challenge was to the constitutional validity of
section 77(6)(a)(i)
and (ii). The High Court held that in some
circumstances it may be justified to detain a person with a mental
illness or
an intellectual disability, but further held that not
every person with a mental illness or an intellectual disability is a
danger
to himself or to society. It held that
section 77(6)(a)
does not allow a presiding officer to: (i) determine whether an
accused person continues to be a danger to society; (ii) evaluate
the
individual needs or circumstances of that person; or (iii) consider
whether other options are more appropriate in the individual
circumstances of the accused.
[8]
The Court held that
section 77(6)(a)
operates in contrast to
section 78(6).
Section 78(6)
deals with
an accused who is found not to be criminally responsible for his
actions at the time of the commission of the offence.
[12]
Further, where an accused is incapable of understanding court
proceedings,
section 77(6)(a)
affords the presiding officer no
discretion, whereas
section 78(6)
vests a discretion in a presiding
officer to release the accused with or without conditions if the
court deems it appropriate.
No justification was found for this
difference and for the absence of similar judicial discretion under
section 77(6)(a).
In reaching this conclusion, the High Court
reasoned that the detention mandated by
section 77(6)(a)(i)
and (ii)
could be arbitrary and lead to irrational results which amounts to an
infringement of an accused’s constitutional
right to freedom
and security of the person.
[9]
The High Court also observed that
section
77(6)(a)
applies particularly harshly in respect of children.
The detention requirements are invoked and the presiding officer has
no discretion to consider alternative diversionary options available
in terms of section 53 of the Child Justice Act.
[13]
The Court concluded that section 77(6)(a)(i) and (ii) unfairly
discriminates against children with a mental illness or an
intellectual disability. This discrimination, on the grounds of
disability, is impermissible in terms of section 9(3) and
(4) of the
Constitution. This problem is compounded by the inadequacy of
facilities for children in prisons and psychiatric
hospitals.
[14]
[10]
The
Court dismissed the respondents’ argument that any limitation
of rights was justified. It ordered the suspension
of the
declaration of invalidity for 24 months in order to afford Parliament
an opportunity to amend the legislation. In
the interim, the
Court read-in the relevant portions of section 78(6) into section
77(6)(a). This means that presiding officers
have a discretion
when deciding whether to detain an accused in a psychiatric hospital
or prison, admit or detain a person in an
institution or order the
release of the person unconditionally or subject to certain
conditions.
In this Court
[11]
The
applicants raise the same issues and grounds as they did in the High
Court regarding the constitutional invalidity of the impugned
provisions. The respondents submit that since the advent of the
Constitution, an overhaul of mental health care policy was
undertaken
and a progressive policy that caters for the care, treatment and
rehabilitation of a person with a mental illness or
an intellectual
disability was put in place. They contend that the impugned
provisions are consistent with the Constitution
in that they are
rational and serve a legitimate government purpose. The
respondents submit that a judicial discretion –
in dealing with
mentally ill or intellectually disabled persons who have been found,
on a balance of probabilities, to have committed
serious offences –
could put society at risk.
[12]
The
crux of the difference between the parties is whether it is
constitutionally permissible to deny a discretion to a presiding
officer at the section 77(6)(a) stage.
The issues
[13]
The
issues to be determined are whether—
(a) this application is premature, as a result of
pending Magistrates’ Court proceedings;
(b) section 77(6)(a) is peremptory;
(c) section 77(6)(a) violates section 12 of the
Constitution and, more specifically, whether—
(i) section 77(6)(a)(i) is constitutionally valid in
respect of: (1) hospitalisation; (2) imprisonment; and (3) children’s
rights; and
(ii) section 77(6)(a)(ii) is constitutionally valid;
and
(d) an infringement, if any, is justified.
Is the application premature?
[14]
The respondents submitted that the
application was premature because both matters were still pending in
the lower courts.
The High Court acknowledged that generally it
is undesirable to adjudicate on constitutional issues before the
conclusion of the
relevant proceedings. It held that this is
not, however, an inflexible rule and that the rule can be departed
from where
the interests of justice dictate. The determination
of the constitutionality of the impugned section should not be an
abstract
exercise.
[15]
Rights have been threatened by section 77(6)(a) as the prospect of
people being detained under this section is immediate.
I cannot
fault Griesel J for proceeding with the determination of the
constitutional issues raised because it was in the interests
of
justice to do so.
Is section 77(6)(a) peremptory?
[15]
Section
77(6)(a) provides as follows:
“
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
,
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.”
[16]
The
applicants contend that the impugned section provides for the
compulsory incarceration or institutionalisation of accused persons
who are found to be mentally unfit to stand trial and who have been
found to have committed, on a balance of probabilities, the
offence
with which they are charged. This, they argue, is apparent from
the word “shall” used in
section 77(6)(a).
[17]
The
respondents submit that the impugned section is capable of being read
in a manner that allows for discretion, in that “shall
direct”
can be read as “may direct”.
[18]
A principle of statutory interpretation is
that “the words in a statute must be given their ordinary
grammatical meaning,
unless to do so would result in absurdity”.
[16]
In this instance, “shall” cannot be interpreted or
rewritten to mean “may”. “Shall”
is an
obligatory word and there is no justification for departing from the
ordinary clear definition of “shall”.
Further,
there are discreet and specified options available to a presiding
officer and as a result, discretion is precluded.
[19]
The ordinary meaning of
section 77(6)(a)
does not admit any ambiguity.
[17]
The impugned section provides for compulsory incarceration or
institutionalisation of the accused person. I am of the
view
that
section 77(6)(a)
is peremptory.
Freedom and security of the person
[20]
Having
concluded that this section is peremptory, it is necessary to
determine whether it offends the accused’s right to freedom
and
security of the person. Accused persons dealt with under
section 77(6)(a)
require the protections guaranteed by section 12
of the Constitution because any possible institutionalisation or
detention
does not flow from the determination of their guilt by a
court of law.
[21]
Section
12(1), entitled “[f]reedom and security of the person”,
provides:
“
Everyone has the right to freedom and
security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either
public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel,
inhuman or degrading way.”
[22]
Is an accused person who is admitted and
detained in a psychiatric hospital, prison or institution, deprived
of his freedom?
In
H.L. v The
United Kingdom
,
[18]
the European Court of Human Rights found that institutionalisation or
hospitalisation constituted detention because “the
health care
professionals treating and managing the applicant exercised complete
and effective control over his care and movements”.
[19]
Yes, I agree, a court order in terms of section 77(6)(a) deprives a
person of his freedom
.
[20]
[23]
In
Bernstein
,
[21]
O’Regan J observed, in respect of the right to freedom and
security of the person under section 11 of the interim
Constitution,
[22]
that—
“
freedom has
two interrelated constitutional aspects: the first is a procedural
aspect which requires that no one be deprived of
physical freedom
unless fair and lawful procedures have been followed. Requiring
deprivation of freedom to be in accordance
with procedural fairness
is a substantive commitment in the Constitution. The other
constitutional aspect of freedom lies
in a recognition that, in
certain circumstances, even when fair and lawful procedures have been
followed, the deprivation of freedom
will not be constitutional,
because the grounds upon which freedom has been curtailed are
unacceptable.”
[23]
[24]
O’Regan J, in her minority judgment,
further held in
S v Coetzee
[24]
that—
“
[there are]
two different aspects of freedom: the first is concerned particularly
with the reasons for which the State may deprive
someone of freedom;
and the second is concerned with the manner whereby a person is
deprived of freedom. As I stated in [
Bernstein
],
our Constitution recognises that both aspects are important in a
democracy: the State may not deprive its citizens of liberty
for
reasons that are not acceptable, nor, when it deprives citizens of
freedom for acceptable reasons, may it do so in a manner
which is
procedurally unfair. The two issues are related, but a
constitutional finding that the reason for which the State
wishes to
deprive a person of his or her freedom is acceptable, does not
dispense with the question of whether the procedure followed
to
deprive a person of liberty is fair.”
[25]
[25]
Thus, this right is aimed at protecting
against the deprivation of a person’s physical liberty without
appropriate procedure
(procedural aspect of the right)
[26]
and for reasons that are not acceptable (substantive aspect of the
right).
[27]
As to what reasons are acceptable, depends on the circumstances of
each case.
[28]
[26]
Ackerman J in
De
Lange
[29]
elaborated on the substantive component of the right, that there must
be acceptable reasons for the deprivation. He held
that the
substantive component requires that the deprivation may not be
arbitrary and that there must be just cause. Ackerman
J
explained that—
“
[t]he
substantive aspect ensures that a deprivation of liberty cannot take
place without satisfactory or adequate reasons for doing
so. In
the first place it may not occur ‘arbitrarily’; there
must, in other words, be a rational connection between
the
deprivation and some objectively determinable purpose. If such
rational connection does not exist the substantive aspect
of the
protection of freedom has by that fact alone been denied. But
even if such rational connection exists, it is by itself
insufficient; the purpose, reason or ‘cause’ for the
deprivation must be a ‘just’ one.”
[30]
[27]
This approach lays down a test that is
clear, understandable and flows directly from the wording of section
12(1)(a). The
deprivation of freedom must not be arbitrary and
the reasons provided for the deprivation must be just. Each
aspect of this
right serves a different purpose. Both aspects
have to be satisfied in order for the impugned provisions to pass
constitutional
muster.
[31]
[28]
The courts have not pinned down what
constitutes “just cause” in all cases: “[i]t is not
possible to attempt,
in advance, a comprehensive definition of what
would constitute a ‘just cause’ for the deprivation of
freedom in all
imaginable circumstances”.
[32]
In
De Lange
the Court held:
“
The law in
this regard must be developed incrementally and on a case by case
basis. Suffice it to say that the concept of
‘just cause’
must be grounded upon and consonant with the values expressed in
section 1 of the 1996 Constitution
and
gathered from the provisions of the Constitution as a whole.”
[33]
(Footnote omitted.)
[29]
Section 39(1)(b) requires courts to
interpret the Bill of Rights and our law in a way that complies with
international law.
[34]
The United Nations Convention on the Rights of Persons with
Disabilities
[35]
(United Nations Convention) reiterates and reinforces the
constitutional obligation to ensure that the rights and freedoms of
persons with disabilities are promoted.
[36]
The United Nations Convention requires that “the existence of a
disability shall in no case justify a deprivation of
liberty”.
[37]
[30]
It
is clear from article 14 that one cannot remove persons with mental
illnesses or intellectual disabilities from society for the
mere fact
that they have mental illnesses or intellectual disabilities.
Further, the protections available to other accused
persons must
equally be available to them.
[31]
The
question, in light of both section 12 and article 14, is then whether
there is a rational connection between the deprivation
and the
objective to treat and care for the accused as well as to secure the
safety of the accused or the community and whether
the provision
mandates the deprivation of freedom based on the presence of mental
illness or intellectual disability alone.
In terms of section
77(6)(a)(i), I deal with alleged adult offenders and child offenders
separately.
Section 77(6)(a)(i)
Hospitalisation
[32]
The
respondents submit that the objectives of the detention are to—
(a) protect members of the public from harm by the
accused;
(b) protect the accused person from harming himself;
(c) prevent stigmatisation by other members of the
community; and
(d) provide treatment, care and rehabilitation.
[33]
The DPP before the High Court highlighted
that the drafters of the
Mental Health Care Act
[38
]
were “painfully aware” of the balancing act between the
rights of an accused person and the rights of the broader community.
For this reason, the DPP contended that all accused persons with
mental illnesses or intellectual disabilities who appear before
a
court must be referred for treatment irrespective of whether or not
an offence has been committed.
[34]
The theme of the
Mental Health Care Act has
commendably moved to a community care focus.
[39]
In addition, safeguards have been built in to the
Criminal Procedure
Act by
having a “trial of the facts” under section
77(6). The purpose of
section 77(6)(a)(i)
is to ensure that a
person who is found unable to understand court proceedings by reason
of a mental illness or an intellectual
disability and has been found
to have committed a serious offence of murder or rape is placed in a
system that is specifically
designed to care, treat and rehabilitate
such persons as well as to protect the interests of the broader
public. The safeguards
also meet the requisite bar of
procedural protections that are in place accompanying the deprivation
of freedom.
[35]
This Court in
Carmichele
found that the state’s duty to respect, protect, promote and
fulfil the rights in the Bill of Rights, includes the right
of the
public to have its safety and security protected.
[40]
The simple fact is that the accused has been found to have committed
a serious offence and precautionary measures must be taken.
[36]
An accused person can only be discharged
after an application has been made to a judge in chambers in terms of
section 47
of the
Mental Health Care Act. The
application
process in terms of
section 47
requires relevant and detailed
information to be placed in front of a judge in chambers.
[41]
It is the judge in chambers that is then best placed to decide
whether the continued detention of the accused is necessary
either
for the purposes of care, treatment and rehabilitation or for the
accused’s safety or for the safety of the community.
This
is because the judge in chambers will be apprised of extensive
information as required under
section 47
of the
Mental Health
Care Act. This
is a practical way of ensuring that the rights
of the public are balanced against the rights of people with mental
illnesses or
intellectual disabilities.
[37]
Cape
Mental Health drew this Court’s attention to the jurisprudence
of the European Court of Human Rights which has affirmed
that persons
with mental illnesses or intellectual disabilities ought not to be
deprived of freedom unless—
(a) the person can reliably be shown, upon objective
medical evidence, to be suffering from a “true mental
disorder”;
(b) the “mental disorder” is of a kind or
degree warranting compulsory confinement; and
(c) the validity of
the continued confinement depends on the persistence of the
“disorder”.
[42]
[38]
The legislative scheme, as it applies to
hospitalisation under
section 77(6)(a)(i)
, meets these three
substantive requirements and goes even further. The accused is
properly and extensively evaluated in terms
of
section 79
of the
Criminal Procedure Act. Once
an accused is found not to
understand court proceedings due to a mental illness or an
intellectual disability, and a prosecutor
requests that the accused
be dealt with in terms of
section 77(6)(a)
, and a court so directs,
then a trial into the facts is undertaken. Only once the
accused person is found to have committed
a serious offence is he
admitted to a psychiatric hospital. This precautionary measure
is constitutionally permissible and
any admission into a hospital
will subsist no longer than is necessary.
[43]
[39]
Finally,
the fact that
section 78
provides for a wider discretion when dealing
with accused persons, who at the time of the commission of the
offence are found not
to have had capacity, is of no moment.
The distinction made between the options provided for under
section
77(6)(a)(i)
of the
Criminal Procedure Act on
the one hand, and
section 78(6)
on the other, is not irrational. They deal with
different enquiries and different possible outcomes.
Section 78
deals with a person who commits an offence and who, by reason of a
mental illness or an intellectual disability, was incapable
of
appreciating the wrongfulness of the act or of acting in accordance
with an appreciation of the wrongfulness of the act. If
it is
established that at the time of the offence the person did not have
the requisite appreciation or ability to act in accordance
therewith,
the accused must, for that reason, be found not guilty. It is
only then that the several options in
section 78(6)
become available.
Sections 77
and
78
serve different purposes and that is why
section 78(6)
provides a wider range of options. An accused,
dealt with in terms of
section 78(6)
, may have no mental illness at
the time of the court proceedings, in which case mandating
hospitalisation would be patently irrational.
Thus the
different prescripts of the provision are but a red herring.
Imprisonment
[40]
The finding that hospitalisation is
arbitrary is not the end of the matter. The
amicus
curiae
urges this Court to go further than the High Court and rule that
imprisonment under this regime is constitutionally invalid.
It
emphasises that imprisonment (as opposed to institutionalisation) in
these circumstances always violates a person’s right
not to be
subjected to cruel, inhuman or degrading punishment and that the
reasons provided to justify the deprivation do not constitute
just
cause.
[44]
[41]
Evaluating the “just cause”
component requires an interrogation of the objectives of the
provision. Committing
someone to prison can be for numerous
purposes: it can be to punish or to serve important public
objectives.
[45]
In this instance, the purpose of the provision is not to punish.
[46]
[42]
The
respondents were at pains to emphasise that the purpose of the
referral is to “assist the accused— for their care,
treatment and rehabilitation.” This was said to be the
primary objective by the respondents. The aim of the provision
is to facilitate therapeutic remedies.
[43]
It should be noted that the Correctional
Services Act
[47]
behoves the Department of Correctional Services to provide
psychological services to detainees with mental illnesses or
intellectual
disabilities. However, the uncontested evidence
presented by Cape Mental Health is that prisons do not have the
facilities
to provide appropriate treatment and care. This
evidence appears to have been accepted by the Minister of Health
before the
High Court.
[48]
[44]
The only reason imprisonment may be
necessary appears to be due to resource constraints; for example due
to the shortage of beds
in psychiatric hospitals which is equally
common cause.
[49]
Is imprisonment then justified in the face of resource
constraints?
[45]
South Africa is a developmental State and
certainly has vast resource constraints in making the rights in the
Constitution a reality
for all. In this instance, however, the
State has a negative obligation not to deprive an accused person of
his freedom arbitrarily
and without just cause.
[50]
There is no internal limitation clause in section 12 of the
Constitution which requires this Court to take cognisance of
available resources.
[46]
Further,
accused persons with mental illnesses or intellectual disabilities
have been historically disadvantaged and unfairly discriminated
against. The use of prisons to “house” these
vulnerable members of our society perpetuates hurtful and dangerous
stereotypes. The right to dignity is not only a basic tenet of
our Constitution; it is a value that is central to the interpretation
of the section 12 right to freedom and security of the person.
Imprisonment reinforces the stigma and marginalisation that
people,
like the accused in this matter, are subjected to on a routine basis.
This impairs the human dignity of persons with
mental illnesses
or intellectual disabilities. The tenets of our Constitution
dictate that accused persons, who are not considered
dangerous,
should not have their freedom curtailed in a manner that is
tantamount to inhuman and degrading punishment in a way
that impinges
on their dignity and breaches their right not to be deprived of their
freedom without just cause.
[47]
Thus
imprisonment is only viable as a “stop-gap” measure if
the presiding officer is of the opinion that the State patient
is
likely to cause serious harm to himself or others. These
instances are permissible as they serve the constitutionally
mandated
purpose of protecting the public.
[48]
However, in instances where the evidence
illustrates that the accused person is unlikely to cause severe harm
to himself or others,
a presiding officer should be able to craft an
appropriate order for the State patient, pending the availability of
a bed in a
psychiatric hospital. The order could be akin to
section 35(1)(f) of the Constitution
[51]
or the discretion in section 79(2)(c).
[52]
These safeguards will ensure that the procedural component of the
right to freedom is not violated.
Children
[49]
The Child Justice Act stipulates that the
provisions of the
Criminal Procedure Act apply
“with the
necessary changes as may be required by the context . . . except in
so far as this Act provides for amended, additional
or different
provisions or procedures in respect of that person”.
[53]
[50]
The Child Justice Act makes provision for
preliminary inquiries.
[54]
The preliminary inquiry may be postponed for a period determined by
the inquiry magistrate in the case where “the child
has been
referred for a decision relating to mental illness or defect in terms
of
section 77
or
78
of the
Criminal Procedure Act&rdquo
;.
[55]
These inquiries are pre-trial procedures, the purpose of
which, amongst other things, is to establish whether the matter
can
be diverted before a plea or to identify a suitable diversionary
option. In order for diversionary options to be considered,
section 47(2)(b)(i)
requires the inquiry magistrate to determine
whether the child acknowledges responsibility for the alleged
offence. The child,
given the presence of a mental illness or
an intellectual disability and the inability to understand court
proceedings, cannot
reasonably be expected to acknowledge
responsibility. This means that diversionary options under the
Child Justice Act –
which are a form of punishment, albeit with
a more rehabilitative emphasis – cannot apply.
[51]
In terms of the Child Justice Act, the
inquiry magistrate is then enjoined to refer the child to the child
justice court.
[56]
However, the Child Justice Act makes it clear that the provisions of
the
Criminal Procedure Act apply
unless stated otherwise. The
Child Justice Act is however silent as to how to proceed once a child
is found unable to understand
court proceedings.
[57]
Thus, it seems that if the child is found unable to understand
court proceedings, the
Criminal Procedure Act applies
, and the court
will then make a decision in terms of
section 79(2)(c).
Here, a
court has a wide discretion. The discretion exercised by the
presiding officer in terms of
section 79(2)(c)(ii)
, at that point,
must be informed by (1)
prima facie
evidence presented by the prosecutor and (2) the best interests of
the child. Section 28 of the Constitution mandates this.
[58]
[52]
However, if a child should find himself in
a section 77(6)(a)(i) process, then the prescripts of the provision
apply. The
presiding officer will have no discretion to deal
with the child appropriately.
[59]
Once engaged in a section 77(6)(a) process, the “trial of
the facts” may reveal that the child did nothing
at all or may
reveal other important information that the presiding officer, under
the current circumstances, would be unable to
take into account. I,
therefore, cannot conclude that detention – which must follow –
is being used as a last
resort as required by section 28(g) of
the Constitution. Section 77(6)(a)(i) deprives courts of a
discretion to deal
appropriately with children who fall within the
ambit of the impugned section. Thus, to the extent that section
77(6)(a)(i)
applies to children, it is unconstitutional.
Section 77(6)(a)(ii)
[53]
Section
77(6)(a)(ii) requires that if after the “trial of the facts”
the presiding officer is of the view that the accused
person
committed no act or committed a minor offence, the presiding officer
must order that he be institutionalised as an involuntary
mental
health care user. In the High Court, the DPP submitted that
this is rational on the basis that the accused person
still needs
treatment.
[54]
In
terms of the
Mental Health Care Act, a
person who has a mental
disability is able to be institutionalised only in discreet
circumstances: (1) by consent; (2) by court
order or Review Board; or
(3) involuntarily. If the accused person is committed
involuntarily, he may only be institutionalised
if—
“
any delay in providing care, treatment
and rehabilitation services or admission may result in the—
(i) death or irreversible harm to the health of the
user;
(ii) user inflicting serious harm to himself or
herself or others; or
(iii) user causing
serious damage to or loss of property belonging to him or her or
others.”
[60]
Accordingly, without a court order, the accused
would not be able to be institutionalised involuntarily unless (i),
(ii) or (iii)
above can be established. Thus, absent one of the
above criteria, if an accused has committed no offence,
institutionalisation
cannot follow under the
Mental Health Care Act.
In
effect, then, accused persons are more readily institutionalised
under the
Criminal Procedure Act without
the ordinary safeguards
prescribed by the
Mental Health Care Act.
[55
]
The objective of treatment cannot alone
justify institutionalisation as this fails to appreciate that mental
illness is complex.
[61]
There are varying types and degrees of mental disability such that
institutionalisation and treatment are not always required
or
appropriate. For example, an intellectual disability such as
Down syndrome cannot be treated and institutionalisation
or treatment
will never improve such a cognitive condition.
[56]
The applicants argue that this
formula-based approach breaches the right to equality
[62]
and human dignity
[63]
in that it perpetuates harmful stereotypes and the assumption that
all people with a mental illness or an intellectual disability
are
dangerous. Section 7 of the Constitution obligates the State to
promote the right to equality, especially the rights
of persons
previously disadvantaged by past practices.
[64]
This includes persons with disabilities. In
Hoffmann
Ngcobo J held:
“
Our
constitutional democracy has ushered in a new era – it is an
era characterised by respect for human dignity for all human
beings.
In this era, prejudice and stereotyping have no place. Indeed,
if as a nation we are to achieve the goal of
equality that we have
fashioned in our Constitution we must never tolerate prejudice,
either directly or indirectly.”
[65]
Evidently, this Court’s equality
jurisprudence illustrates that the existence of a disability alone
cannot justify a deprivation
of liberty.
[57]
The
“trial of the facts” does not provide for an appropriate
procedural safeguard accompanying the deprivation, as the
deprivation
in section 77(6)(a)(ii) happens regardless of the outcome.
The provision thus breaches the procedural component
of the right.
Further, the gulf between the automatic application of the provision
and the objectives of treatment and safety
is too wide. One
cannot conclude that the objective behind the detention meets the
purpose proffered. Section 77(6)(a)(ii),
therefore, also
breaches the substantive component of the section 12 right and
is constitutionally invalid. Of course,
in some circumstances
it may be necessary to institutionalise the accused person, but the
presiding officer must be able to decide
this based on the evidence
before him or her.
[58]
If the person has been found to have
committed no offence, the mere fact of coming into contact with the
criminal justice system,
cannot alone warrant institutionalisation.
The dearth of reasons or justifications for mandating
institutionalisation means
that the only conclusion to draw from this
is that the accused is being institutionalised because of the
presence of a mental illness
or an intellectual disability.
Article 14 of the United Nations Convention requires states parties
to ensure that “the
existence of a disability shall in no case
justify a deprivation of liberty”.
[66]
Section 12 of the Constitution must be interpreted in light of this
provision. Section 77(6)(a)(ii) therefore amounts
to an
arbitrary deprivation of freedom under section 12.
Justification
[59]
The
Minister sought to justify the impugned provisions under section 36
of the Constitution. I could not, however, find any
satisfactory justification for the infringement. The limitation
on section 12 is not reasonable and justifiable in an open
and
democratic society based on human dignity, equality and freedom.
Remedy
[60]
The
High Court declared
section 77(6)(a)(i)
and (ii) of the
Criminal
Procedure Act constitutionally
invalid. It limited the
retrospective effect of that order and suspended the order of
invalidity for 24 months in order to
provide the Legislature with an
opportunity to cure the defect. The High Court also read-in the
discretionary options available
to a presiding officer under
section
78(6)
into the impugned provisions of the
Criminal Procedure Act.
>
[61]
I
have already detailed why I think it is rational and constitutionally
permissible for the
Criminal Procedure Act to
treat accused persons
under
sections 77(6)(a)
and
78
(6) differently. Thus, I do
not agree with the High Court’s order that the provisions in
section 78(6)
be adopted verbatim.
[62]
The
High Court judgment does not deal with the interplay between the
Mental Health Care Act and
the
Criminal Procedure Act. The
Constitution does not prohibit Parliament from effectively dealing
with potentially dangerous people who have a mental illness
or an
intellectual disability. This Court recognises that the
interests of society are also at play. In recognising
both, the
appropriate remedy in this case requires a pragmatic approach.
[63]
Section
77(6)(a)(i) operates rationally subject to certain qualifications.
Imprisonment should only be available to accused
persons who pose a
serious danger to society or themselves. If an accused person
does not pose a serious danger to society
or themselves, then
resources alone cannot dictate that an accused person be placed in
prison. If resources alone require
an accused person to be kept
in prison, then to this extent, section 77(6)(a)(i) is inconsistent
with the Constitution and is invalid.
If resources are
significantly constrained such that a bed in a psychiatric hospital
is unavailable, then a presiding officer should
be able to craft an
appropriate order that encompasses treating the accused as an
outpatient, for example, by extending the bail
conditions, or any
other appropriate order pending the availability of a bed in a
psychiatric hospital.
[64]
In relation to children, a presiding
officer must be afforded a discretion so as to ensure that detention
is undertaken as a last
resort and for the shortest possible period.
In engaging the powers afforded to it under section 172, this Court
must weigh
up a number of considerations when crafting an order that
is just and equitable. This Court is conscious that the remedy
must not unduly trespass on the terrain of the Legislature.
[67]
It is also aware of the consequences and the impact violations will
have on the right to freedom and security of an accused
person with a
mental illness or an intellectual disability.
[65]
Section 77(6)(a)(i) is invalid to the
extent that it mandates the detention of children and permits
imprisonment based on resource
considerations only. This order
of declaration of invalidity will be suspended for a period of 24
months in order to allow
the Legislature to remedy this defect.
No order will be made for the interim period. The issue is
complex and polycentric
and is best handled by the Legislature.
In the interim, section 49D of the Correctional Services Act gives
some solace in
that it requires that detained persons suspected of
having a mental illness receive mental health care services.
[68]
[66]
Section
77(6)(a)(ii) also operates rationally only in respect of an accused
person who is likely to inflict harm to himself or others
or requires
care, treatment and rehabilitation. To the extent that section
77(6)(a)(ii) prescribes that
all
accused persons must be institutionalised, regardless of whether they
are likely to inflict harm to themselves or others and do
not require
care, treatment and rehabilitation in an institution, it is
inconsistent with the Constitution and stands to be invalidated.
The mere fact that an accused person brushes shoulders with the
criminal justice system is not a just cause for institutionalisation
and renders the provision constitutionally invalid in respect of such
persons.
[67]
Thus, in respect of section 77(6)(a)(ii),
unlike subparagraph (i), reading-in is appropriate. The
provision can be remedied
by extending the number of options
available to a presiding officer after the “trial of the facts”
reveals that the
accused has committed either no offence or a minor
offence. As was stated in
Manamela
,
the purpose of the reading-in is to narrow the reach of the provision
in order to avoid any undue breach of a right.
[69]
I heed the caution made in
Dawood
that
where there are a number of options available to cure a
constitutional defect, the courts should defer to the
Legislature.
[70]
A reading-in, in this instance, accords firmly with the purpose of
the legislation. It is also always available for
the
Legislature to amend the provision as it deems fit at a later stage,
provided such amendment complies with this judgment and
the
Constitution.
Costs
[68]
The applicants have succeeded in
vindicating constitutional rights against the government.
Biowatch
applies.
[71]
The applicants are entitled to their costs. There should be no order
as to costs in respect of the
amicus
curiae
.
Order
[69]
The
following order is made:
1. The declaration of invalidity made by the Western
Cape Division of the High Court, Cape Town, on 5 September 2014
is not
confirmed.
2.
Section 77(6)(a)(i)
of the
Criminal Procedure Act
51 of 1977
is declared to be inconsistent with the Constitution and
invalid to the extent that it provides for:
(a) compulsory imprisonment of an adult accused
person; and
(b) compulsory hospitalisation or imprisonment of
children.
3. The declaration of invalidity is suspended for a
period of 24 months from the date of this judgment in order to
allow Parliament
to correct the defects in light of this judgment.
4.
Section 77(6)(a)(ii)
of the
Criminal Procedure Act
51 of 1977
is declared to be inconsistent with the Constitution and
invalid. From the date of this order section 77(6)(a)(ii) is to read
as
follows:
“
(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 17
of 2002;
(bb) be released subject to such conditions as the
court considers appropriate; or
(cc) be released unconditionally.”
5. The orders in paragraphs 2 and 4 are not
retrospective.
For the First and Second Applicants: K
Pillay SC and F Karachi instructed by Legal Aid South Africa.
For the Third and Fourth Applicants: A Katz
SC, K J Klopper and J Wilke instructed by Legal Aid South Africa.
For the Respondents: D B Ntsebeza SC and S
Poswa-Lerotholi instructed by the State Attorney.
For the Amicus Curiae: I Goodman and L Kelly
instructed by Webber Wentzel.
[1]
Section 167(5) of the Constitution provides that—
“
[t]he Constitutional Court makes the
final decision whether an Act of Parliament, a provincial Act or
conduct of the President
is constitutional, and must confirm any
order of invalidity made by the Supreme Court of Appeal, the High
Court of South Africa,
or a court of similar status, before that
order has any force.”
[2]
51 of 1977. See [15] for the full text of
section 77(6)(a).
[3]
Section 12(1) provides:
“
Everyone has the right to freedom and
security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or
without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from
either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel,
inhuman or degrading way.”
[4]
Section 28, in relevant part, provides:
“
(1) Every child has the right—
. . .
(g) not to be detained except as a measure of last
resort, in which case, in addition to the rights a child enjoys
under sections
12 and 35, the child may be detained only for the
shortest appropriate period of time,
. . .
(2) A child’s best interests are of paramount
importance in every matter concerning the child.”
[5]
It is a fundamental principle of our criminal
justice system that an accused must be able to understand the court
proceedings
as well as give proper instructions to his or her legal
representative to enable him or her to conduct a proper defence.
If the presiding officer is under the impression that the accused
cannot understand the court proceedings due to a mental illness
or
“mental defect”, he or she must direct that the mental
capacity of an accused be investigated and reported on
in terms of
section 79 – this can be done at any stage in the proceedings.
[6]
For the more serious offences referred to in
section 77(6)(a)(i) this observation and report is to be conducted
by two psychiatrists
(and a clinical psychologist if the court so
directs) and for less serious offences referred to in section
77(6)(a)(ii) the court
shall direct that the accused be examined by
one psychiatrist. In most instances, a “finding”
of mental illness
or “defect” is left to mental health
experts.
[7]
Section 79(2)(c) provides:
“
The court may make the following orders
after the enquiry referred to in subsection (1) has been conducted—
(i) postpone the case for such periods referred to
in paragraph (a), as the court may from time to time determine;
(ii) refer the accused at the request of the
prosecutor to the court referred to in section 77(6) which has
jurisdiction
to try the case;
(iii) make any other order it deems fit regarding
the custody of the accused; or
(iv) any other order.”
[8]
This assessment is about the act only and does
not engage in any enquiry around the guilt of the accused.
Section 77(6)(a)
envisages two steps: (i) on the limited evidence
available, whether it can be proved on a balance of probabilities
that the accused
committed the act in question; and (ii) taking into
account the nature of the accused’s incapacity, whether it
would be
in the interests of the accused to place information or
evidence before the court to determine whether the accused has
committed
the act in question. See Kruger “Accused:
Capacity to Understand Proceedings: Mental Illness and Criminal
Responsibility”
in
Heimstra’s
Criminal Procedure
Service 7 (2014) at
13-8 which characterises this process as a “trial of the
facts”.
[9]
Section 77(1) provides:
“
If it appears to the court at any stage
of criminal proceedings 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, the court shall direct
that the matter be enquired
into and be reported on in accordance
with the provisions of section 79.”
[10]
Section 78(2) provides:
“
If it is alleged at criminal
proceedings that the accused is by reason of mental illness or
mental defect or for any other reason
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 court shall in the case of an allegation or
appearance of mental illness or mental
defect, and may, in any other
case, direct that the matter be enquired into and be reported on in
accordance with the provisions
of section 79.”
[11]
Section 79, in relevant part, provides:
“
(1) Where a court issues a direction
under section 77(1) or 78(2), the relevant enquiry shall be
conducted and be reported on—
(a) where the accused is charged with an
offence other than one referred to in paragraph (b), by the medical
superintendent of
a psychiatric hospital designated by the court, or
by a psychiatrist appointed by the medical superintendent at the
request of
the court; or
(b) where the accused is charged with murder
or culpable homicide or rape or compelled rape as provided for in
sections 3
or
4
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007
, respectively, or another charge
involving serious violence, or if the court considers it to be
necessary in the public interest,
or where the court in any
particular case so directs—
(i) by the medical superintendent of a psychiatric
hospital designated by the court, or by a psychiatrist appointed by
the medical
superintendent at the request of the court;
(ii) by a psychiatrist appointed by the court and
who is not in the full time service of the State unless the
court directs
otherwise, upon application of the prosecutor, in
accordance with directives issued under subsection (13) by the
National Director
of Public Prosecutions;
(iii) by a psychiatrist appointed for the accused by
the court; and
(iv) by a clinical psychologist where the court so
directs.
. . .
(4) The report shall—
(a) include a description of the nature of the
enquiry; and
(b) include a diagnosis of the mental
condition of the accused; and
(c) if the enquiry is under
section 77(1)
,
include a finding as to whether the accused is capable of
understanding the proceedings in question so as to make a proper
defence; or
(d) if the enquiry is in terms of
section
78(2)
, include a finding as to the extent to which the capacity of
the accused to appreciate the wrongfulness of the act in question
or
to act in accordance with an appreciation of the wrongfulness of
that act was, at the time of the commission thereof,
affected
by mental illness or mental defect or by any other cause.”
[12]
Section 78(6)
provides:
“
If the court finds that the accused
committed the act in question and that he or she at the time of such
commission was by reason
of mental illness or intellectual
disability not criminally responsible for such act—
(a) the court shall find the accused not guilty; or
(b) if the court so finds after the accused has been
convicted of the offence charged but before sentence is passed, the
court
shall set the conviction aside and find the accused not
guilty, by reason of mental illness or intellectual disability, as
the
case may be, and direct—
(i) in a case where the accused is charged with
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 another
charge involving serious violence, or if the court considers it to
be necessary in the public interest
that the accused be—
(aa) 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;
(bb) admitted to and detained in an institution
stated in the order and treated as if he or she were an involuntary
mental health
care user contemplated in section 37 of the Mental
Health Care Act, 2002;
(cc) . . .
(dd) released subject to such conditions as the
court considers appropriate; or
(ee) released unconditionally;
(ii) in any other case than a case contemplated in
subparagraph (i), that the accused—
(aa) be admitted to and detained in an institution
stated in the order and treated as if he or she were an involuntary
mental
health care user contemplated in section 37 of the Mental
Health Care Act, 2002;
(bb) . . .
(cc) be released subject to such conditions as the
court considers appropriate; or
(dd) be released unconditionally.”
[13]
75 of 2008.
[14]
De Vos NO and Another v Minister of Justice
and Constitutional Development and Others
[2014]
ZAWCHC 135
;
2015 (1) SACR 18
(WCC) at para 62, where the Court held:
“
This infringement of the constitutional
rights of children, bad as it is, is aggravated by the fact (as
appears from the evidence
placed before the court by [Cape Mental
Health]) that both prisons and psychiatric hospitals have inadequate
facilities for children.
The results of [Cape Mental Health’s]
survey accord with the testimony of Prof Kaliski in [Mr Snyman’s]
criminal
trial where he conceded: ‘[w]e don’t have a
hospital for juveniles who are mentally handicapped and out of
control.
We would like to have such places but we don’t.
. . . We don’t actually have facilities.’”
[15]
Abahlali baseMjondolo Movement SA and Another
v Premier of the Province of KwaZulu-Natal and Others
[2009]
ZACC 31
;
2010 (2) BCLR 99
(CC) at para 13.
[16]
Cool Ideas 1186 CC v Hubbard and Another
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at para
28.
[17]
See generally
SATAWU and Another v
Garvas and Others
[2012] ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8)
BCLR 840
(CC) at para 37.
[18]
No 45508/99 ECHR 2004.
[19]
Id at para 91.
[20]
See also
Malachi v
Cape Dance Academy International (Pty) Ltd and Others
[2010]
ZACC 13
;
2010 (6) SA 1
(CC);
2010 (11) BCLR 1116
(CC) at para 28
where the Court held:
“An arrest and detention, by its nature, limits the freedom
of a person. The right to freedom of the person is limited
if
the deprivation is done arbitrarily, or without just cause.”
[21]
Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) (
Bernstein
).
[22]
Section 11 provided:
“
(1) Every person shall have the right
to freedom and security of the person, which shall include the right
not to be detained
without trial.
(2) No person shall be subject to torture of any
kind, whether physical, mental or emotional, nor shall any person be
subject
to cruel, inhuman or degrading treatment or punishment.”
[23]
Bernstein
above
n 21 at para 145.
[24]
S v Coetzee and Others
[1997]
ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC) (
S
v Coetzee
).
[25]
Id at para 159.
[26]
Nel v Le Roux NO and Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC) at para
14.
[27]
S v Coetzee
above n 24 at para 159.
[28]
Nel
above n 26
at para 14.
[29]
De Lange v Smuts NO and Others
[1998] ZACC 6
; 1998 (3) SA (CC) 785; 1998 (7) BCLR 779 (CC).
[30]
Id at para 23.
[31]
Id.
[32]
Id at para 30.
[33]
Id.
[34]
See
Glenister v
President of the Republic of South Africa and Others
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) at para
97 where Ngcobo J explained:
“
Our Constitution reveals a clear
determination to ensure that the Constitution and South African law
are interpreted to comply
with international law, in particular
international human-rights law. . . . These provisions of our
Constitution demonstrate
that international law has a special place
in our law which is carefully defined by the Constitution.”
[35]
The United Nations Convention and its Optional
Protocol were ratified by Parliament on 30 March 2007. Although
the United
Nations Convention has not been enacted into law in terms
of section 231(4) of the Constitution, section 39(1)(b) still
requires
this Court to consider international law when interpreting
the Bill of Rights.
[36]
Article 4(1) provides:
“
States Parties undertake to ensure and
promote the full realization of all human rights and fundamental
freedoms for all persons
with disabilities without discrimination of
any kind on the basis of disability. To this end, States
Parties undertake:
(a) To adopt all appropriate legislative,
administrative and other measures for the implementation of the
rights recognized in
the present Convention;
(b) To take all appropriate measures, including
legislation, to modify or abolish existing laws, regulations,
customs and practices
that constitute discrimination against persons
with disabilities;
(c) To take into account the protection and
promotion of the human rights of persons with disabilities in all
policies and programmes;
(d) To refrain from engaging in any act or practice
that is inconsistent with the present Convention and to ensure that
public
authorities and institutions act in conformity with the
present Convention;
(e) To take all appropriate measures to eliminate
discrimination on the basis of disability by any person,
organization or private
enterprise;
(f) To undertake or promote research and development
of universally designed goods, services, equipment and facilities,
as defined
in article 2 of the present Convention, which should
require the minimum possible adaptation and the least cost to meet
the specific
needs of a person with disabilities, to promote their
availability and use, and to promote universal design in the
development
of standards and guidelines;
(g) To undertake or promote research and development
of, and to promote the availability and use of new technologies,
including
information and communications technologies, mobility
aids, devices and assistive technologies, suitable for persons with
disabilities,
giving priority to technologies at an affordable cost;
(h) To provide accessible information to persons
with disabilities about mobility aids, devices and assistive
technologies, including
new technologies, as well as other forms of
assistance, support services and facilities;
(i) To promote the training of professionals and
staff working with persons with disabilities in the rights
recognized in the
present Convention so as to better provide the
assistance and services guaranteed by those rights.”
[37]
Article 14 provides:
“
1. States Parties shall ensure that
persons with disabilities, on an equal basis with others:
(a) Enjoy the right to liberty and security of
person;
(b) Are not deprived of their liberty unlawfully or
arbitrarily, and that any deprivation of liberty is in conformity
with the
law, and that the existence of a disability shall in no
case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with
disabilities are deprived of their liberty through any process, they
are,
on an equal basis with others, entitled to guarantees in
accordance with international human rights law and shall be treated
in compliance with the objectives and principles of this Convention,
including by provision of reasonable accommodation.”
[38]
17 of 2002.
[39]
Section 8(2) provides:
“
Every mental health care user must be
provided with care, treatment and rehabilitation services that
improve the mental capacity
of the user to develop to full potential
and to facilitate his or her
integration
into community life
.”
(Emphasis added.)
[40]
Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies Intervening)
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 57.
[41]
If an accused has been imprisoned or placed in a
psychiatric hospital in terms of section 77(6)(a)(i) then
section 47
of the
Mental Health Care Act governs
that accused’s release.
The
Mental Health Care Act has
a specific regime that operates in
respect of State patients. An application may be made by the
State patient; an official
curator ad
litem
; an administrator, if appointed;
the head of the health establishment at which a State patient is
admitted; the medical practitioner
responsible for administering
care, treatment and rehabilitation services to a State patient; a
spouse, an associate or a next
of kin; or any other person
authorised to act on behalf of the State patient, to a judge in
chambers for the discharge of the
State patient. An
application can ostensibly be made straight after the court’s
pronouncement that the accused be
admitted and detained in terms of
section 77(6)(a)(i).
However, only one application can be
made every 12 months.
[42]
Winterwerp v Netherlands
[1979] ECHR 4
;
(1979-80) 2 EHRR 387
at para 39.
[43]
In exceptional circumstances where the presiding
officer is of the view that a person who has been found to have
committed a serious
crime on a balance of probabilities, but appears
that he may not necessarily pose a threat to society, the presiding
officer
may order the particular case to be dealt with expeditiously
by requiring that an application in terms of
section 47
be brought
before a judge in chambers within a particular time frame.
This can be done, for example, by the legal representative
on behalf
of the family or the DPP as official
curator
ad litem
.
[44]
Section 12 of the Constitution is provided in
full at [21].
[45]
In
De Lange
above
n 29 the Court held that there was just cause in placing
recalcitrant witnesses in prison under section 66(3) of the
Insolvency
Act. The Court held that there was an important
public objective served, namely, to guarantee that insolvents and
other
persons who are in a position to provide essential information
relating to an insolvency, do not evade supplying it.
[46]
This is evidenced by the fact that if the accused
has pleaded to the charge prior to his referral for mental
observation in terms
of section 79, and the finding is that he is
not capable of following the proceedings so as to make a proper
defence, the court
shall neither acquit nor convict the accused in
terms of
section 106(4)
of the
Criminal Procedure Act. If
the
accused was convicted before the referral for mental observation,
the conviction will be set aside. See
section 77(6)(a)
and
(b).
[47]
111 of 1998.
[48]
See also the
Department of Correctional
Services’
s 2012/2013
Annual Report
at 73
which discloses that only 24% of inmates in South Africa’s
prisons who require psychological treatment in fact receive
it.
[49]
Muntingh M L
An
Analytical Study of South African Prison Reform After 1994
(PhD Thesis, University of the Western Cape, 2011) at 375-6.
[50]
As opposed to sections 26(2), 27(2) and 29(1)(b)
of the Constitution which impose positive obligations on the State.
[51]
Section 35(1)(f), entitled “[a]rrested,
detained and accused persons”, provides:
“
Everyone who is arrested for allegedly
committing an offence has the right—
. . .
(f) to be released from detention if the interests
of justice permit, subject to reasonable conditions.”
[52]
Above n 7.
[53]
Section 4(3)(a).
[54]
See chapter 7.
[55]
Section 48(5)(b).
[56]
Section 47(9)(c) provides:
“If the prosecutor indicates that the matter may not be
diverted, the inquiry magistrate must—
. . .
(c) inform the child that the matter is being referred to the
child justice court to be dealt with in accordance with Chapter 9.”
[57]
Only section 48 refers to the possibility of
postponing an inquiry for the purposes of evaluating the child’s
mental health
in terms of
section 77
or
78
of the
Criminal Procedure
Act.
[58
]
Section 28(1)(g) and 28(2) of the Constitution
requires that children be detained only as a measure of last resort
and the best
interests of the child must be treated as “paramount”.
This Court found in
Centre for Child
Law v Minister of Justice and Constitutional Development and Others
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC) at
paras 25, 29 and 31 that—
“
[a]mongst other things section 28
protects children against the undue exercise of authority. The
rights the provision secures
are not interpretive guides. They
are not merely advisory. Nor are they exhortatory. They
constitute a real
restraint on Parliament. And they are an
enforceable precept determining how officials and judicial officers
should treat
children.
. . .
The children’s rights provision itself
envisages that child offenders may have to be detained. The
constitutional
injunction that ‘(a) child’s best
interests are of paramount importance in every matter concerning the
child’
does not preclude sending child offenders to jail. It
means that the child’s interests are ‘more important
than anything else’, but not that everything else is
unimportant: the entire spectrum of considerations relating to the
child offender, the offence and the interests of society may require
incarceration as the last resort of punishment.
. . .
Detention must be a last, not a first, or even
intermediate, resort; and when the child is detained, detention must
be ‘only
for the shortest appropriate period of time’.”
(Footnote omitted.)
[59]
See
AD and Another v
DW and Others (Centre for Child Law as Amicus Curiae; Department of
Social Development as Intervening Party)
[2007]
ZACC (27);
2008
(3) SA 183 (CC)
[2007] ZACC 27
; ;
2008 (4) BCLR
359
(CC) at para 55 where this Court held: “Child law is
an area that abhors maximalist legal propositions that preclude
or
diminish the possibilities of looking at and evaluating the specific
circumstances of the case.”
[60]
Section 9(1)(c)
of the
Mental Health Care Act.
[61
]
Section 77
only applies to persons who are
thought to have a mental illness or “mental defect”.
Mental illness is defined
in
section 1
of the
Mental Health Care Act
as
meaning “a positive diagnosis of a mental health related
illness in terms of accepted diagnosis criteria made by a mental
health care practitioner authorised to make such diagnosis”.
Interestingly Professor Kaliski, in Kaliski “Does
the Insanity
Defence Lead to an Abuse of Human Rights?”
Afr
J Psychiatry
2012 (15) 83 at 85, notes
that there is very little international consensus on what types of
psychiatric disorders would constitute
mental illness. It is
also not clear from the
Mental Health Care Act what
is meant by
persons with a “mental defect” as it is undefined.
The difference between “mental defect”
and mental
illness is uncertain but psychiatrists seem to be in general
agreement that the former refers to a “disorder
characterised
by cognitive impairment” (intellectual disabilities), while
the latter refers to “psychotic or severe
mood disorders”.
In addition, Down Syndrome South Africa was an
amicus
curiae
before the High Court. They gave extensive evidence on the
concept of a “mental defect” or intellectual
disability.
Intellectual disability is commonly associated
with mental illness but people with an intellectual disability are
not by virtue
of that alone, ill. People with intellectual
disabilities display difficulties in learning and understanding and
are considered
to have “an incomplete development of
intelligence”. An intellectual disability is the
impairment of what are
considered “general mental abilities”
in the social domain, conceptual domain and/or the practical domain.
Treatment
options also vary extensively but are generally aimed at
impulsivity, poor social learning-skills, low self-esteem, lack of
education
and occupational skills and limiting socialisation.
Down Syndrome South Africa submits that the best option for an
accused
with an intellectual disability is to be placed in a
rehabilitation centre and not in a psychiatric centre.
[62]
Section 9.
[63]
Section 10.
[64]
Section 7(2)
provides:
“
The state must respect, protect,
promote and fulfil the rights in the Bill of Rights.”
[65]
Hoffmann v South African Airways
[2000] ZACC 17
;
2001 (1) SA 1
(CC);
2000 (11) BCLR 1211
(CC) at para
37.
[66]
Above n 37.
[67]
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para
66.
[68]
Section 49D
, entitled “[m]entally ill
remand detainees”, provides:
“
(1) The National Commissioner may
detain a person suspected to be mentally ill, in terms of
section
77(1)
of the
Criminal Procedure Act or
a person showing signs of
mental health care problems, in a single cell or correctional health
facility for purposes of observation
by a medical practitioner.
(2) The Department must provide, within its
available resources, adequate health care services for the
prescribed care and treatment
of the mentally ill remand detainee.
(3) The Department must, within its available
resources, provide social and psychological services in order to
support mentally
ill remand detainees and promote their mental
health.”
[69]
S v Manamela
and
Another (Director-General of Justice Intervening)
[2000]
ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) (
Manamela
)
at para 56.
[70]
Dawood and Another v Minister of Home Affairs
and Others
;
Shalabi
and Another v Minister of Home Affairs and Others; Thomas and
Another v Minister of Home Affairs and Others
[2000]
ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR 837
(CC) (
Dawood
)
at para 64 where this Court held:
“
Where, as in the present case, a range
of possibilities exists and the Court is able to afford appropriate
interim relief to affected
persons, it will ordinarily be
appropriate to leave the Legislature to determine in the first
instance how the unconstitutionality
should be cured. This
Court should be slow to make those choices which are primarily
choices suitable for the Legislature.”
[71]
Biowatch Trust v Registrar, Genetic Resources,
and Others
[2009] ZACC 14
;
2009 (6) SA
232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).