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[2014] ZAWCHC 106
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S v Pedro (B247/11) [2014] ZAWCHC 106; 2015 (1) SACR 41 (WCC); [2014] 4 All SA 114 (WCC) (9 July 2014)
THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
High
Court Ref No: 14228
Oudtshoorn
Case No: B247/11
DATE:
09 JULY 2014
In the matter
between:
STATE
And
BOOI PEDRO
ACCUSED
Coram: BINNS-WARD
& ROGERS JJ
Heard: 23 JUNE
2014
Delivered: 9 JULY
2014
JUDGMENT
ROGERS J:
Introduction
[1] This matter was
referred to this court by senior magistrate of Oudtshoorn, Mr JS
Lambrechts, because he doubted the correctness
of the procedure
followed by the trial magistrate, Mr JA Steynberg, in relation to the
accused in terms of Chapter 13 of the
Criminal Procedure Act 51 of
1977
.
[2] The accused was
charged with one count of culpable homicide. The State’s case
was that the accused’s negligent driving
of a vehicle caused
the death of a young child. The incident occurred on 28 September
2009. On 5 August 2011 the accused, who was
represented by a legal
aid attorney, was referred to Valkenberg Hospital (‘VBH’)
for assessment and report in terms
of
s 79(1)(b)
of the Act. There
was a delay of many months before space at VBH became available for
the accused.
[3] The report, of
two State psychiatrists at VBH, was issued during June 2012. The
report recorded that the accused was one of
13 children who had grown
up in impoverished circumstances. His highest level of education was
standard 5. He had worked for most
of his life as a car mechanic. He
was married with four children. He suffered a head injury in 2008
following an assault by his
son. He had developed epilepsy and during
December 2009 had been admitted to George Hospital in a coma caused
by extensive intra-cerebral
bleeding. At that time he had lost the
ability to speak or walk, though these faculties he regained over
time.
[4] On assessment by
the psychiatrists he was found unable to give a coherent account and
was unable to name common objects. He
was disorientated. In the ward
he had to be supervised in his self-care and needed assistance to
dress. The clinical diagnosis
was that he suffered from dementia and
was certifiable in terms of the Mental Health Care Act 17 of 2002.
The psychiatrists concluded
that the accused did not have the
capacity to understand the proceedings as contemplated in
s 77
of the
Criminal Procedure Act and
that at the time of committing the alleged
offence he was incapable of appreciating the wrongfulness of the
alleged offence and
of acting accordingly. The recommendation was
that the accused be detained at VBH as a State patient.
[5] On 12 June 2012,
on which occasion the accused was again represented by a legal aid
attorney, the presiding magistrate found
the accused not guilty in
terms of
s 78(6)(a)
and ordered, in terms of
s 77(6)(a)(ii)
, that the
accused be admitted to and detained in VBH as if he were an
involuntary mental health care user contemplated in s 37
of the
Mental Health Care Act. In so doing, the magistrate departed from the
recommendation in the psychiatric report that the
accused be detained
as a State patient (ie in terms of s 77(6)(a)(i)).
[6] On 21 January
2014 the office of the Western Cape Director of Public Prosecutions
(‘the DPP’) wrote to the Oudtshoorn
Magistrate’s
Court, indicating, with reference to authority, that the trial
magistrate had erred in entering a finding of
not guilty in terms of
s 78(6)(a). The senior magistrate referred the matter to this court
on 28 January 2014. He said that the
accused had never pleaded to the
charge of culpable homicide and that a finding of not guilty should
not have been made in terms
of s 78(6)(a). The review judge was
requested to set aside the acquittal but to confirm the order made in
terms of s 77(6)(a)(ii).
[7] On 19 March 2014
the trial magistrate replied to a query I had sent on for March 2014:
[a] In regard to the
acquittal, he expressed the opinion that s 78(6) could find
application prior to plea. He referred in that
regard to the opening
words of s 78(1), quoting them with emphasis: ‘A person who
commits an act or makes an omission which
constitutes an offence and
who at the time of such commission or omission suffers from a mental
illness or mental defect which
makes him or her incapable…’.
[b] In regard to the
making of an order in terms of sub-para (ii) rather than (i) of s
77(6)(a), he acknowledged that culpable homicide
was one of the
crimes specified in sub-para (i). He observed, however, that one
could distinguish between culpable homicide where
dolus was present
(ie an intention to assault, even if there was no intention to kill)
and culpable homicide where only culpa was
present. Having regard to
the other crimes specified in sub-para (i) and the eiusdem generis
principle of construction, his view
was that sub-para (i) applied
only when there was violence inflicted with dolus.
[8] I also sought
the view of the DPP. In the memorandum submitted on behalf of the
DPP, Mr Stephen SC expressed the view that an
acquittal should not
have been entered and submitted, further, that the detention order
should have been in terms of sub-para (i)
of s 77(6)(a), not sub-para
(ii). He disputed the distinction drawn by the magistrate between
different forms of culpable homicide.
[9] On further
consideration of the matter, I invited the DPP’s view on
another question, namely the composition of the psychiatric
panel.
During the hearing on 5 August 2011, pursuant to which the accused
had been referred for observation, there was no discussion
concerning
the composition of the panel. The court did not (at least expressly)
appoint a psychiatrist specifically for the accused
(see sub-para
(iii) of s 79(1)(b)); nor was a third (private) psychiatrist
appointed (see sub-para (ii) of s 79(1)(b)). The two
psychiatrists
who provided the assessment were both State-employed doctors at VBH.
The response from the DPP was that there was
an irreconcilable
difference of opinion within the Western Cape office regarding the
composition of psychiatric panels and that
guidance was being sought
from the National Director of Public Prosecutions.
[10] Following this
development, my colleague Binns-Ward J and I decided that oral
argument should be addressed to us on the various
issues. We gave
directions for the preparation of the record and the filing of
submissions. Notice of the hearing was given to
the DPP and to the
Legal Aid Board, with a request that the latter notify the accused of
the hearing and of his right to be present
in person. At the hearing
the DPP was represented by Ms Teunissen and the accused by Mr Klopper
of the Legal Aid Board. The Legal
Aid Board took steps, in accordance
with our directions, to notify the accused of the hearing and to
advise him of his right to
be present. The Minister of Justice and
Constitutional Development was permitted to intervene to make
submissions in view of the
cost implications relating to the
composition of psychiatric panels in terms of
s 79
of the
Criminal
Procedure Act. The
Minister was represented by Mr la Grange SC
leading Mr O’Brien. We thank all the representatives for their
able assistance.
[11] The questions
on which we directed oral argument to be addressed were the
following:
[a] whether the
second psychiatrist on the panel should have been a psychiatrist
expressly appointed by the court for the accused;
[b] whether, in the
absence of any request and direction to the contrary, the magistrate
was required to appoint a private psychiatrist
as a third
psychiatrist on the panel;
[c] whether, in view
of the finding of the psychiatrists that the accused was not fit to
stand trial, the entering of a not guilty
verdict was correct;
[d] whether, given
that the accused was charged with culpable homicide, the detention
order should have been in terms of sub-para
(i) rather than sub-para
(ii) of
s 77(6)(a)
;
[e] if the answer to
one or more of the above questions were to indicate that the
proceedings in the lower court were irregular,
what course we should
follow; and in particular, whether we should exercise our review
jurisdiction to set aside and correct or
remit the matter or whether
we should decline to intervene, leaving it to the State or the
accused to launch such review or appeal
proceedings as they consider
appropriate.
Composition of
assessment panel – the statutory provisions
[12] Before
considering the first two questions, it is necessary to set out the
relevant statutory provisions. Because their interpretation
is not
free from difficulty, it is desirable also to refer to earlier forms
of the provisions in question.
[13] In terms of ss
164 and 182 of the Criminal Procedure Act 56 of 1955, lack of fitness
to stand trial and lack of criminal responsibility
were to be
determined in accordance with ss 28 and 29 respectively of the Mental
Disorders Act 38 of 1916. In essence, the latter
Act required these
matters to be determined by the judicial officer (together with the
jury, if he was sitting with one) after
hearing evidence. There was
no procedure for a pre-trial psychiatric assessment. (For a
convenient summary of the provisions, see
S v Ebrahim
1973 (1) SA 868
(A).)
[14] The aforesaid
provisions were repealed with effect from 22 July 1977, when the
Criminal Procedure Act 51 of 1977
came into force.
Sections 77
and
78
deal, respectively, with fitness to stand trial and criminal
responsibility where one or other of these capacities is said to be
lacking on account of mental illness or mental defect. In either
instance, the accused person must be referred for psychiatric
assessment, which is governed by
s 79.
From the outset a distinction
has been drawn between more and less serious offences. It has always
been the case, in respect of
less serious offences, that the
assessment is undertaken by the medical superintendent of a
mental/psychiatric hospital designated
by the court or by a
psychiatrist appointed by the medical superintendent at the court’s
request. In regard to more serious
cases,
s 79(1)(b)
in its original
form applied where the accused was charged with an offence for which
the death sentence might be imposed or where
the court in any
particular case so directed. In the latter instance, the enquiry was
to be conducted and reported on:
‘(i) by the
medical superintendent of a mental hospital designated by the court,
or by a psychiatrist appointed by such 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; and
(iii) by a
psychiatrist appointed by the accused if he so wishes.’
[15] In the
questions framed by the court and in the submissions of counsel, the
psychiatrist contemplated in sub-para (ii) above
was referred to as
the ‘third psychiatrist’. On reflection this might be
confusing and misleading, because in the evolution
of
s 79(1)(b)
the
expression ‘third psychiatrist’ has variously been used
with reference to the psychiatrist contemplated in sub-para
(iii) or
the psychiatrist contemplated in sub-para (ii). I shall thus refer to
the psychiatrists contemplated in sub-paras (i),
(ii) and (iii) as
psychiatrists A, B and C.
[16] It will be seen
that, in its original form,
s 79(1)(b)
made the appointment of
psychiatrists A and B mandatory, with psychiatrist B being, as is
commonly said, a ‘private’
psychiatrist. (In this
judgment, I use the expression ‘private psychiatrist’ as
referring to a psychiatrist who is
not in the full-time service of
the State and the expression ‘State psychiatrist’ as a
psychiatrist in the full-time
service of the State.) The appointment
of psychiatrist A came about through the court’s designation of
a particular mental
hospital; upon such designation, that hospital’s
medical superintendent would be psychiatrist A, unless the court
requested
the medical superintendent to appoint the psychiatrist, in
which case the appointment would be made by the medical
superintendent
of the designated hospital. The medical superintendent
would invariably be a State employee. Notionally a psychiatrist
appointed
by the medical superintendent (if so requested by the
court) could be a private psychiatrist. In practice, we understand,
psychiatrist
A is always a State psychiatrist
[17] In its original
form, the appointment of psychiatrist C (a psychiatrist for the
accused) was optional, the matter being in
the hands of the accused.
If he wanted a psychiatrist appointed, he himself appointed the
psychiatrist.
[18]
Section 79(8)
provided that a psychiatrist appointed in terms of
s 79(1)
, ‘other
than a psychiatrist appointed for the accused’, was to be
appointed from a list of psychiatrists (‘a
listed
psychiatrist’) compiled and maintained by a specified public
official in terms of
s 79(9).
In terms of
s 79(10)
, the requirement
that the psychiatrist be a listed psychiatrist could be relaxed where
the list did not include a sufficient number
of psychiatrists who
could conveniently be appointed.
Section 79(11)
provided that any
appointed or designated psychiatrist who was not a State psychiatrist
would be compensated from public funds
in accordance with a tariff
determined by the Minister. Although not expressly so stated, it is
clear that all these provisions
related to private psychiatrists
only. Notionally, psychiatrist A could be a private psychiatrist if
the medical superintendent
was requested by the court to appoint a
psychiatrist and chose to appoint a private psychiatrist, though in
practice this does
not occur. Psychiatrist B had to be a private
psychiatrist and thus had to be listed unless
s 79(10)
applied.
Psychiatrist C, being an optional appointment made by the accused
himself, could be a State or private psychiatrist. If
the accused
chose to appoint a private psychiatrist, the private psychiatrist
would not need to be listed but his or her publicly-funded
remuneration would still be restricted in accordance with
s 79(11).
[19] This was the
regime which applied in all material respects until the
Criminal
Matters Amendment Act 68 of 1998
was brought into force on 28
February 2002. Prior to the commencement of the latter amendments,
there were alterations to
s 79
by way of Act 129 of 1993 and Act 105
of 1997. The 1993 Act substituted ‘psychiatric hospital’
for ‘mental hospital’.
The 1997 amendment was in response
to the finding by the Constitutional Court that the death sentence
was unconstitutional. In
terms of the 1997 amendment the trial court
was given a broad discretion to determine whether in any particular
case the panel
should be constituted in accordance with s 79(1)(b)
rather than s 79(1)(a).
[20] The amendments
introduced by Act 68 of 1998 followed the report and recommendations
of the South African Law Commission (‘SALC’)
dated August
1995 and submitted to the Minister of Justice on 15 April 1996 in
relation to Project 89.
1
Insofar as s 79 is concerned, the SALC received submissions inter
alia as to (i) the desirability of making the appointment of
a
psychiatrist for the accused (psychiatrist C) mandatory and
entrusting the appointment to the court rather than the accused;
2
(ii) the desirability or otherwise of involving psychologists in the
assessment process.
3
The SALC also made recommendations regarding the types of offences in
regard to which the psychiatric assessment should be undertaken
by a
panel rather than a single State psychiatrist.
[21] Act 68 of 1998
followed the wording of the amendment bill proposed by the SALC
4
.
The amended s 79(1)(b) – a full panel enquiry – was to
apply where the accused was charged ‘with murder or culpable
homicide or rape or another charge involving serious violence, or if
the court considers it to be necessary in the public interest,
or
whether court in any particular case so directs’. In these
cases the enquiry and report were to be conducted and made
by the
following persons (my underlining indicates the changes):
‘(i) by the
medical superintendent of a psychiatric hospital designated by the
court, or by a psychiatrist appointed by such
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;
(iii) by a
psychiatrist appointed for the accused by the court;
(iv) by a clinical
psychologist where the court so directs.’
[22] It will be seen
that the appointment of psychiatrists A and B remained mandatory, and
the appointment of psychiatrist C also
became mandatory. The
appointment of a fourth panellist, a clinical psychologist, was left
in the hands of the court. The ‘default’
position, if one
can put it that way, was thus that the panel would comprise three
psychiatrists and no departure from that requirement
was permissible.
[23] With effect
from 16 December 2007, s 79(1)(b) was amended to include, within the
more serious crimes, rape and compelled rape
as contemplated in
ss 3
and
4
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
. The composition of the panel for the more
serious cases was not altered.
[24] The further
amendments, which have given rise to controversy in the present case,
were those introduced with effect from 10
September 2010 by
s 10
of
the
Judicial Matters Amendment Act 66 of 2008
. The range of serious
offences covered by
s 79(1)(b)
remained unchanged. In regard to the
composition of the panel, the only alteration was in respect of
psychiatrist B (the private
psychiatrist). Sub-para (ii) was amended
to read as follows (my underlining indicates the words inserted):
‘(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 is
issued under subsection (13) by the National Director
of Public
Prosecutions;’
[25] Sub-section
79(13) was introduced at the same time, and reads:
‘(13)(a) The
National Director of Public Prosecutions must, in consultation with
the Minister, issue directives regarding
the cases and circumstances
in which a prosecutor must apply to the court for the appointment of
a psychiatrist as provided for
in subsection (1)(b)(ii) and any
directive so issued must be observed in the application of this
section.
(b) The directives
referred to in paragraph (a) must ensure that adequate disciplinary
steps will be taken against a prosecutor
who fails to comply with any
directive.
(c) The Minister
must submit any directives issued under this subsection to Parliament
before those directives take effect, and
the first directives so
issued, must be submitted to Parliament within four months of the
commencement of this subsection.
(d) Any directive
issued under this subsection may be amended or withdrawn in like
manner.’
[26] The provisions
of
s 79(8)
, (9), (10) and (11) regarding the list of panellists and
their remuneration have remained largely unchanged since 1977 save
that
(i) with, effect from 28 February 2002, references were added to
psychologists (consistently with the coming into force of Act 68
of
1998); (ii) the identity of the official who was to compile and
maintain the list was altered. Harking back to the original
formulation in 1977, s 79(8) states that the requirement that the
psychiatrist or psychologist be listed does not apply to ‘a
psychiatrist and a clinical psychologist appointed for the accused’.
The reference to a clinical psychologist in this exclusion
does not
make sense, because s 79(1)(b)(iv) does not state that a
psychologist, where appointed, is appointed ‘for the accused’.
I suspect that the lawmaker simply added references to a psychologist
wherever there were existing references to a psychiatrist,
even
though that was not appropriate in this particular instance. Although
psychiatrist C is now a mandatory appointment made by
the court, it
is perhaps understandable that the psychiatrist need not be a listed
psychiatrist. Of course, psychiatrist C is often
a State psychiatrist
but the court could, in the light of a request made by the accused,
appoint a specified private psychiatrist
whose name is not on the
list.
[27] There have been
no further amendments to the relevant provisions of the
Criminal
Procedure Act. The
form of the legislation relevant to the
adjudication of this special review is the form it took after the
amendments introduced
by Act 66 of 2008.
The problem
[28] Clearly the
amendment of s 79(1)(b)(ii) and the introduction of s 79(13) were
intended to provide some scope for a departure
from the hitherto
mandatory appointment of psychiatrist B (the private psychiatrist), a
state of affairs which had prevailed for
about 33 years since the
enactment of the
Criminal Procedure Act. The
scope of the intended
departure is the problematic issue. The long title of the Act 66 of
2008 indicated, accurately but not very
helpfully, that one of the
purposes of the Act was ‘to further regulate the appointment of
psychiatrists in cases involving
the mental capacity of an accused
person’. This sheds no light on the problem.
[29] It is
convenient here to summarise three interpretations mooted in
argument:
(a) Unless the
court, on application by the prosecutor, directs otherwise, the panel
must include psychiatrist B. In deciding whether
or not to make an
application to dispense with the appointment of psychiatrist B, the
prosecutor must be guided by directives issued
in accordance with s
79(13). (This was the interpretation espoused by Mr Klopper on behalf
of the accused.)
(b) The court may,
if the prosecutor applies to the court for the appointment of
psychiatrist B, appoint the said psychiatrist
and he or she must be a
private psychiatrist unless the court directs that he or she may be a
State psychiatrist. In deciding whether
to apply for the appointment
of psychiatrist B (regardless of whether the proposed psychiatrist is
a private or State psychiatrist),
the prosecutor must be guided by
directives issued in accordance with s 79(13). (This was the
interpretation espoused by Mr la
Grange for the Minister, supported
by Ms Teunissen for the DPP.)
(c) The court must
always appoint a psychiatrist as psychiatrist B but, if the
prosecutor applies for a direction that psychiatrist
B need not be a
private psychiatrist, the court may appoint a State psychiatrist as
psychiatrist B.
[30] I shall refer
to these as the first, second and third interpretations.
Material in aid
of interpretation
[31] Apart from such
guidance as is to be found in the wording of the relevant legislative
provisions, viewed in the broader statutory
context and history of
the legislation, we were referred, as possibly relevant background
material, to the judgment of Bertelsmann
J in S v Lubisi
[2003] 3 All
SA 586
(T). We also referred to the explanatory memorandum which
accompanied the Judicial Matters Amendment Bill of 2008 and to the
directives
issued by the National Director of Public Prosecutions
(‘NDPP’) pursuant to s 79(13).
The Lubisi case
[32] In the Lubisi
case the accused was facing a charge of murder. On 22 August 2002 the
court ordered that he be psychiatrically
assessed at Weskoppies
Hospital to determine whether he was fit to stand trial. The judge
appointed a named psychologist as a member
of the panel (ie
presumably as a fourth member). About six months later, on 21
February 2003, the prosecutor brought a substantive
application for
an order that, despite the provisions of s 79(1)(b) (as they then
read), the court direct the accused to be examined
by a single State
psychiatrist. In support of this application, the State furnished
evidence of the practical difficulties in arranging
for the
psychiatric assessment of accused persons. In the court’s area
of jurisdiction, the list of psychiatrists contemplated
in s 79(9)
had last been updated during April 1997 and there was not a single
psychiatrist on that list, still in private practice,
who was
prepared to assist. The reason for this unwillingness was allegedly
the low tariff set by the Minister for private psychiatrists
in terms
of s 79(11)(a). The court was informed that in several instances
criminal cases had been struck from the roll because
of the inability
to constitute a panel and the resultant delay. The State alleged that
this ‘highly unsatisfactory state
of affairs’ pertained
throughout the country with the exception of the Western Cape.
[33] Bertelsmann J
had grave doubt as to whether a court could deviate from the
apparently peremptory requirements of s 79(1)(b),
particularly since
the case did not appear to be one of objective impossibility
(592e-f). However, and in an attempt to resolve
matters, he issued an
order calling upon the Ministers of Justice and Health, the
Directors-General of those departments and on
three professional
bodies to provide information and argument on certain questions
(592f-h). These questions included whether the
court was empowered to
order a psychiatrist to become a member of the panel at the
prescribed remuneration and, alternatively,
whether the court could
order the State to pay remuneration to a private psychiatrist in line
with the standards of the relevant
professional body (ie higher than
the remuneration prescribed by the Minister of Justice).
[34] On the extended
return day (29 April 2003) it was recorded that the Ministers had
reached agreement with the professional bodies
in terms whereof
‘realistic professional fees’ would now be paid to
psychiatrists in private practice assisting in
observations in terms
of s 79(1)(b). A new list of private psychiatrists was to be
compiled. Bertelsmann J observed that this was
a satisfactory outcome
(592i-j). He thus did not decide whether he could have made the
contemplated orders regarding the payment
of remuneration or finally
determine the question whether the provisions of s 79(1)(b) ‘could
ever be disregarded if no psychiatrist
could be found to be appointed
on behalf of the accused’ (598f).
[35] Although Lubisi
reflects that as at 2002-2003 the implementation of s 79(1)(b) was
giving rise to grave practical difficulties
in most of the country in
view of the low remuneration offered to private psychiatrists, the
eventual outcome was an agreement,
to which both the Ministers of
Justice and Health were parties, which, so it was envisaged, would
resolve the problem by offering
more realistic remuneration. We were
not referred to any subsequent decisions of the courts indicating
that the agreement did not
have the desired effect, though the
explanatory memorandum mentioned below tends to show that problems
persisted. There is nothing
to indicate that the solution at which
officialdom and the professional bodies arrived in Lubisi was aimed
at dispensing with the
appointment of a private psychiatrist.
[36] I would add the
following with reference to Lubisi. It appears that the trial judge
designated Weskoppies Hospital as the psychiatric
hospital for
purposes of s 79(1)(b)(i). While that may have sufficed for purposes
of determining psychiatrist A, it was for the
court to appoint
psychiatrists B and C. It is unclear whether this happened. Reference
is made at 591b-c to a named psychologist
(who would have been a
fourth panellist) but not to any named psychiatrists. The prosecutor
reported to the judge on 21 January
2003 that ‘it had been
impossible to find a psychiatrist to assist the accused in the
enquiry into his mental condition’.
With respect, it was not
for the prosecutor or the defence to appoint a psychiatrist for the
accused; that was the court’s
function, even though in practice
this might be by way of endorsing a selection made by the prosecution
or the defence. Furthermore,
if the difficulty in the case was to
find a private psychiatrist, that would have been a difficulty
relating to the appointment
of psychiatrist B, not the psychiatrist
for the accused (psychiatrist C), who could permissibly have been a
State psychiatrist
(even though it was for the court to appoint him
or her).
[37] It is necessary
to comment on another aspect of Lubisi. In the substantive
application brought by the State, it was said that
the amended
sections 77, 78 and 79 had come into operation on 28 February 2002
and that ‘endless problems’ had been
experienced since
then in constituting panels (at 591g). As will be apparent from the
legislative history I have summarised, there
has since 1977 been a
mandatory requirement that a private psychiatrist (psychiatrist B) be
part of the panel. The ‘endless
problems’, insofar as
they were concerned with finding private psychiatrists, could not
have been caused by the amendments
which came into operation on 28
February 2002. What changed with effect from 28 February 2002 was
that the appointment of a psychiatrist
for the accused (psychiatrist
C) became mandatory and the responsibility for appointment passed
from the accused to the court.
However, there has never been a
requirement that the psychiatrist for the accused be a private
psychiatrist.
The explanatory
memorandum
[38] The Judicial
Matters Amendment Bill of 2008, which was accompanied by the
explanatory memorandum previously mentioned, was
adopted in relevant
respects without alteration as Act 66 of 2008. In regard to the
proposed amendments to s 79, the explanatory
memorandum said the
following (my emphasis):
‘(i)
Section
79
of the
Criminal Procedure Act, 1977
, in the case of serious
offences (murder, culpable homicide, rape or another charge involving
serious violence), or where the court
considers it to be necessary in
the public interest, or where the court, in any particular case so
directs, requires a panel of
three psychiatrists to be appointed for
purposes of inquiring into the capacity of an accused person to
understand criminal proceedings
pending against him or her or into
the criminal capacity of an accused person, where mental capacity is
an issue. In the case of
lesser offences, only one person is required
to undertake the investigation.
(ii) The section is
almost impossible to apply in some parts of the country (mainly
Gauteng) due to the non-availability of private
psychiatrists willing
to do observations. As a result of the problems experienced serious
cases have been struck off the roll because
proper observations could
not be done. The amendments allow the courts to do away with the
third psychiatrist, at the request of
the prosecutor, who may only so
request in accordance with directives issued by the National Director
of Public Prosecutions. The
NDPP must, in terms of the proposed
amendments, issue such directives, setting out the cases and
circumstances in which a prosecutor
may make such a request.’
[39] The words I
have underlined, if they are admissible material in construing
s
79(10(b)
, provide strong support for what I have styled the first
interpretation.
The directives
[40] We were
furnished with the directives issued by the NDPP in terms of
s
79(13).
We were told that these were duly made in consultation with
the Minister and were duly submitted to Parliament.
[41] Paragraph 1 of
the directives records that the amended
s 79
‘provides for the
appointment of a panel of only two psychiatrists, unless the
prosecutor applies for the appointment of
a third psychiatrist’.
Paragraph 2 states that prosecutors may only apply for the
appointment of a ‘third psychiatrist’,
in accordance with
s 79(1)(b)(ii)
, in terms of the written authority or directive from
the relevant DPP. Paragraph 3 states that where prosecutors identify
matters
that may require the appointment of a third psychiatrist,
this should be brought to the attention of the relevant DPP for
consideration.
Paragraphs 4 and 5 read thus:
‘4. Factors
that may be considered by a DPP in using his/her discretion to
authorise or direct a prosecutor to apply for
the appointment of a
third psychiatrist for observation purposes include –
(a) the seriousness
of the offence;
(b) the complexity
of the evidence;
(c) whether the
accused person wishes the court to appoint a psychiatrist of his or
her choice; and
(d) the history of
the particular accused person (e.g. previous observations of the
accused person).
5. Where an
application is brought for the appointment of a third psychiatrist
and the accused person is not legally represented,
the prosecutor
must request the court to consider the appointment of a legal
representative for the accused person in terms of
section 77(1A)
of
the
Criminal Procedure Act, 1977
.’
[42] Paragraph 6
states that the directives only take effect after submission to
Parliament.
[43] Paragraph 7
warns that prosecutors who fail to comply with the directives ‘will
be dealt with according to the disciplinary
codes of the National
Prosecuting Authority’.
[44] The ‘third
psychiatrist’ contemplated in these directives is the private
psychiatrist, ie psychiatrist B.
[45] If the
directives are admissible as an aid to construing
s 79(1)(b)
, they
clearly support what I have styled the second interpretation. The
NDPP quite obviously framed the directions in the belief
that the
amended
s 79
had the effect that there would only be two
psychiatrists unless the prosecutor applied for a third.
[46] The first two
factors mentioned in para 4 of the directives do not require
explanation though they are very general in nature.
The third factor
(whether the accused wishes the court to appoint a psychiatrist ‘of
his or her choice’) is somewhat
puzzling though the NDPP may
have had in mind that, if psychiatrist C (the psychiatrist appointed
for the accused) was a person
appointed by the court with the
specific approval of the accused, it might then be less critical to
have (in addition to psychiatrist
A) a further private psychiatrist
(psychiatrist B).
[47] The fourth
factor (the accused’s history, in particular his or her history
of mental observation) presumably implies
that, if the accused has
already been examined and been found in the past to be suffering from
a mental illness, it might be less
critical to have three as opposed
to two psychiatrists on the panel.
The interpretation
of
ss 79(1)(b)(ii)
and
79
(13)
[48] I must say
that, when I first read
s 79
in the context of its legislative
history, my view was that the correct interpretation was the one I
have styled as the first interpretation.
Nothing I have heard in
argument has led me to a different conclusion. I appreciate that this
conclusion requires one to find that
something went wrong in the
formulation of
s 79(13)
but this is not sufficient, in my view, to
compel one to adopt either of the other two interpretations, since
neither of the other
interpretations could in my opinion plausibly
represent the intention of the lawmaker.
[49] As I shall
explain presently, I consider that the explanatory memorandum may be
consulted as an aid to interpretation. On the
other hand, I do not
think that Lubisi provides much assistance. It explains the general
nature of the problem as at 2002/2003
(the shortage of private
psychiatrists in most provinces willing to work at the prescribed
tariff) but, on the plausible assumption
that those problems
continued, the evidence summarised in the case and the views of the
learned judge do not shed much light on
which of the potential
solutions to the problem was the one the lawmaker intended to adopt.
I do not consider that the NDPP’s
directives can be used in the
interpretation of
s 79.
[50] However, and
even without the support provided by the explanatory memorandum, the
first interpretation is the one to be preferred.
The most natural
meaning of the words used in
s 79(1)(b)(ii)
is that the ‘unless’
phrase follows the whole of what precedes it. The preceding words had
stood in the statute for
about 33 years. If the lawmaker had intended
to do anything other than insert a general qualification to the
general requirement,
a different formulation would have been used. If
the second interpretation were correct, it would have been more
natural to insert
the ‘unless’ phrase after the words
‘appointed by the court’. Mr la Grange submitted that the
placement
of the commas in sub-para (ii) favoured the second
interpretation. I disagree. The matching commas were used to provide
a natural
and easy-reading parenthesis in respect of the person on
whose application a contrary direction of the court might be made
(the
prosecutor).
[51] Apart from the
ordinary meaning of the words, there are weighty considerations
militating against the second interpretation.
For many years the
lawmaker made the appointment of a private psychiatrist mandatory
(psychiatrist B). There were no doubt good
reasons of policy to do
so. Initially the appointment of an additional psychiatrist for the
accused (psychiatrist C) was not mandatory;
and, even though the
appointment of a psychiatrist for the accused later became an
indispensable requirement, there has never been
a requirement that
the psychiatrist for the accused be a private psychiatrist, and in
most cases he or she is a State psychiatrist.
[52] While State
psychiatrists undoubtedly attempt to assist the court with what they
regard as their independent expert views,
the legislative requirement
for a private psychiatrist must have been premised on the notion that
the presence of such a psychiatrist
on the panel would provide
greater protection for the rights of the accused. In a broad sense,
there is an institutional connection
between the prosecution and the
State psychiatrists, all being public servants. Where two State
psychiatrists are on the panel,
they will often be employed at the
same psychiatric hospital. Considerations of collegiality might tend,
subconsciously, towards
consensus; or differences in seniority might
result in one psychiatrist displaying some deference to the other.
There is even danger
that, due to the great pressure on State
psychiatric resources, the primary assessment in respect of a
particular accused will
be left to one of the State psychiatrists,
with the other providing more of a supporting role.
[53] There is
nothing to indicate that the policy considerations in favour of
appointing a private psychiatrist have disappeared.
What can be
accepted, though, is that the appointment of a private psychiatrist
will always entail expense for the State; and that
it may not always
be easy to find a private psychiatrist willing to accept appointment.
I can well understand that, in the circumstances,
the judicial
officer should be vested with a discretion to dispense with the
appointment of a private psychiatrist if such a request
were properly
motivated. However, the effect of the interpretation advanced on
behalf of the Minister and DPP is that the court
does not have the
power to appoint a private psychiatrist unless the prosecutor makes
application for such appointment. I cannot
conceive that the lawmaker
intended to place it in within the power of the prosecutor to
determine, unilaterally, that there should
be no private
psychiatrist. Yet on the second interpretation that is precisely the
position.
[54] This objection
to the second interpretation is not ameliorated by the consideration
that prosecutors, in determining whether
to apply for the appointment
of a private psychiatrist, were intended to be bound by directives
issued in terms of
s 79(13).
If anything, that consideration
militates against the second interpretation. If the default position
is that there are only two
psychiatrists unless the prosecutor
applies for a third (private) psychiatrist, and if (as would flow
from this interpretation)
prosecutors would in terms of
s 79(13)(b)
face internal disciplinary action if they unnecessarily applied for a
third psychiatrist, there would be every incentive for prosecutors
not to make application for the appointment of a private
psychiatrist, out of fear of disciplinary action. That is, in the
context
of fair-trial rights, a perverse incentive.
[55] It is far more
consistent with the sound and fair administration of criminal justice
that a prosecutors should be authorised
to apply to the court to
dispense with the appointment of a private psychiatrist. The decision
as to whether a private psychiatrist
should be appointed would
ultimately be in the hands of the court. If a prosecutor brought an
application to dispense with the
appointment of a private
psychiatrist because the circumstances of the case did not, in the
prosecutor’s view, warrant the
appointment of a private
psychiatrist, the prosecutor could not be subjected to disciplinary
action if, despite such application,
the court decided that a private
psychiatrist should be appointed. I can perfectly understand, though,
that a prosecutor might
be subjected to internal discipline if he or
she failed to ask the court to dispense with the appointment of a
private psychiatrist
if, in accordance with directives issued in
terms of
s 79(13)
, the case were one in which dispensing with the
private psychiatrist was appropriate.
[56] The Minister’s
counsel submitted, in a supplementary note filed after the hearing,
that it was not truly objectionable
to leave it to the prosecutor to
determine whether to apply for the appointment of a private
psychiatrist (psychiatrist B) because
the court would in those
circumstances have a discretion to appoint, as the psychiatrist for
the accused (psychiatrist C), a private
psychiatrist. I accept that
the court may appoint a private psychiatrist as psychiatrist C. In
practice, however, we understand
this seldom happens. Furthermore, if
the main reason for the amendment of sub-para (ii) was to dispense
with the appointment of
a private psychiatrist in appropriate cases
because of considerations of cost and the difficulty in finding
available private psychiatrists,
it would be self-defeating if the
court were routinely to appoint a private psychiatrist as
psychiatrist C whenever the prosecutor
failed to apply for the
appointment of psychiatrist B.
[57] The third
interpretation would require there always to be three psychiatrists
but would permit psychiatrist B to be a State
psychiatrist if the
court so directed on the application of the prosecutor. While this
might go even further than the first interpretation
in safeguarding
the rights of the accused, I think it is an unduly strained
construction. If the lawmaker had intended the ‘unless’
phrase to be anything other than a general qualification on the whole
of what precedes it, different language would have been expected.
Furthermore, on this interpretation, the directives envisaged by
sub-para (ii) would be limited to directives as to whether
prosecutors
should ask the court to appoint a State psychiatrist
rather than a private psychiatrist as psychiatrist B. However,
s
79(13)(a)
refers to directives ‘regarding the cases and
circumstances in which a prosecutor must apply to the court for the
appointment
of a psychiatrist as provided for in’
s
79(1)(b)(ii).
The psychiatrist provided for in sub-para (ii) is a
private psychiatrist. Sub-para (ii) makes no reference to a
psychiatrist in
the full-time employ of the State.
[58] There is also
nothing in the history of the legislation to suggest that the third
interpretation is likely to have represented
the lawmaker’s
intention. Prior to the coming into force of Act 66 of 2008, s
79(1)(b) made provision for the mandatory appointment
of three
psychiatrists, of whom two (psychiatrists A and C) would typically
have been State psychiatrists. The appointment of a
private
psychiatrist is a counter-balance to the (usual) presence on the
panel of State psychiatrists. I can see no reason why
the lawmaker
would have insisted on a third State psychiatrist in circumstances
where, for any reason, it was appropriate to dispense
with the
requirement of a private psychiatrist. I mean no disrespect to State
psychiatrists when I say that the presence of three
as opposed to two
State psychiatrists on a panel is unlikely to provide any material
additional safeguard to the accused.
[59] I accept that,
on my preferred interpretation of s 79(1)(b)(ii), s 79(13)(a) reads
uncomfortably. Consistently with my interpretation
of s 79(1)(b)(ii),
s 79(13)(a) should have empowered the NDPP to issued directives
regarding the cases and circumstances in which
a prosecutor must
apply to court ‘to dispense with’, not ‘for’,
the appointment of a psychiatrist as provided
for in s 79(1)(b)(ii).
It is a general principle in construing a statute that one prefers an
interpretation by which its several
provisions are reconciled.
Underlying this principle, however, is the notion that the intention
of the lawmaker is most likely
to be found in an interpretation which
reconciles the ordinary meaning of the words of different parts of
the statute. I think
one must allow, though, for the possibility that
sometimes the wording of a statute ‘goes wrong’ and that,
despite
an apparent conflict, the true intention of the lawmaker is
not reached by forcing the language of one provision to fit that of
another. This is such a case. Section 79(1)(b)(ii) is the dominant
provision in so far as the appointment of psychiatrist B is
concerned. Section 79(13) is ancillary. Both the ordinary language
and considerations of policy favour the first interpretation
in so
far as s 79(1)(b)(ii) is concerned. If one alters that meaning so
that, semantically, s 79(13) still notionally makes sense
by
referring to an application to appoint rather than an application to
dispense, one will, in my view, end up giving both provisions
a
meaning which was not intended.
[60] I thus consider
that s 79(13)(a) must be construed as empowering the NDPP to issue
directives regarding the circumstances in
which prosecutors must
apply to court to dispense with the appointment of a private
psychiatrist. In a general sense, s 79(13)(a),
and thus the
directives issued thereunder, are concerned with the circumstances in
which a private psychiatrist is and is not to
be appointed. It is
clear, on my preferred interpretation of s 79 as a whole, that the
NDPP issued the directives under a misapprehension
as to the default
position. However, the difficulties created by the poor drafting of s
79(13), and the error to which it appears
to have given rise in the
mind of the NDPP, ought not to be exaggerated. In the nature of
things, directives issued on the supposition
that they set out the
cases and circumstances in which a prosecutor should apply to the
court for the appointment of a private
psychiatrist would, ex
contrariis, define the cases and circumstances in which, on a true
construction of s 79(1)(b)(ii), a prosecutor
should apply to court to
dispense with the appointment of a private psychiatrist. The
directives actually issued by the NDPP are
perfectly capable of being
applied in this way.
[61] I return now to
the explanatory memorandum. The memorandum makes it perfectly clear
that the promoters of the bill, which was
adopted unchanged, intended
the amendments to have the effect of empowering the prosecutor to
request the court to do away with
psychiatrist B and empowering the
NDPP to issued directives setting out the circumstances in which
prosecutors should make such
requests. The memorandum envisaged a
default position of three psychiatrists not two; and it envisaged
that, where the court acceded
to a request by the prosecutor, there
would only be two psychiatrists (namely psychiatrists A and C). There
is no support in the
memorandum for the view that the promoters of
the bill had in mind that there would still need to be a third
psychiatrist, but
that such psychiatrist could, on application by the
prosecutor, be a State rather than a private psychiatrist.
[62] If the
explanatory memorandum is admissible as an aid in construing s 79, it
might be regarded as dispositive in favour of
the first
interpretation. Even without the memorandum, I would adopt the first
interpretation for reasons already given. But in
my opinion, it is
permissible to have regard to the explanatory memorandum. Of course,
the primary material for construing a statute
is the legislation
itself. But this starting point, which can be regarded as a
fundamental feature of the rule of law, does not
mean that no regard
may be had to other considerations, particularly where the
interpretation of the legislation is a matter of
difficulty. In such
circumstances, the notional reader of the statute will, like the
court, appreciate the difficulty of interpretation.
If light can be
cast on the true meaning by having regard to other material which is
as accessible to the notional reader as to
the court, there is no
reason to exclude such material.
[63] It has long
been accepted in our law that, where the words of the statute are not
clear and unambiguous, the court may have
regard to the report of any
commission of enquiry which preceded the enactment of the
legislation. It has been said that a report
of this kind may be
considered not to determine the meaning attached by the commission to
any draft bill proposed but to ascertain
the mischief aimed at and
the state of the law as it was then understood to be (Westinghouse
Brake & Equipment (Pty) Ltd v
Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A) at 562E-563A). A similar view has more recently been
adopted by the Constitutional Court in regard to explanatory
memoranda
(S v Makwanyane & Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC) paras
14-15 in respect of the interpretation of the interim Constitution;
and Minister of Health & Another NO v New Clicks
South Africa
(Pty) Ltd & Others (Treatment Action Campaign & Another as
Amici Curiae)
2006 (2) SA 311
(CC) para 201 more generally). There
are a number of cases where courts in this country have considered
explanatory memoranda (see,
for example, Amgold/Harmony Freegold
Joint Venture (Pty) Ltd v CSARS
2013 (1) SA 353
(SCA) para 13; Master
Currency (Pty) Ltd v CSARS
[2013] 3 All SA 135
(SCA) para 18;
Metropolitan Life Ltd v CSARS
2009 (3) SA 484
(C) para 30 (full
bench)).
[64] The leading
English case on the use of parliamentary materials in the
interpretation of statutes is Pepper (Inspector of Taxes)
v Hart
[1993] 1 All ER 42
(HL), to which reference was made in Makwanyane
supra. Lord Browne-Wilkinson said the following in his speech (at
64d-e):
‘My Lords, I
have come to the conclusion that, as a matter of law, there are sound
reasons for making a limited modification
to the existing rule
(subject to strict safeguards) unless there are constitutional or
practical reasons which outweigh them. In
my judgment, subject to the
questions of the privileges of the House of Commons, reference to
parliamentary material should be
permitted as an aid to the
construction of legislation which is ambiguous or obscure or the
literal meaning of which leads to an
absurdity. Even in such cases
reference in court to parliamentary material should only be permitted
where such material clearly
discloses the mischief aimed at or the
legislative intention lying behind the ambiguous or obscure words. In
the case of statements
made in Parliament, as at present advised I
cannot see that any statement other than the statement of the
Minister or other promoter
of the Bill is likely to meet these
criteria.’
And later (at
67e-f):
‘In sum, I do
not think that the practical difficulties arising from a limited
relaxation of the rule are sufficient to outweigh
the basic need for
the courts to give effect to the words in enacted by Parliament in
the sense that they were intended by Parliament
to bear. Courts are
frequently criticised for their failure to do that. This failure is
not due to cussedness but to ignorance
of what Parliament intended by
the obscure words of the legislation. The court should not deny
themselves the light which parliamentary
materials may shed on the
meaning of the words Parliament has used and thereby risk subjecting
the individual to a law which Parliament
never intended to enact.’
5
[65] It may be said
that, under our law at any rate, an explanatory memorandum can only
be used to identify the ‘mischief’
aimed at by the
legislation and that commentary on the meaning of the provisions of
the bill cannot be allowed to influence the
interpretation. It may be
argued, further, that in the present case the ‘mischief’
was the expense and inconvenience
of appointing private psychiatrists
and that identifying this ‘mischief’ does not assist one
in determining which of
the three potential solutions (the first,
second or third interpretation) was the one intended by the lawmaker.
I doubt, however,
that there is a ‘bright line’ between a
statement of the mischief and a statement of the intended effect of
remedial
legislation or that there is even good reason to accept the
one but exclude the other as an aid to interpretation. The question
must ultimately be the reliability of the assistance afforded by the
explanatory memorandum. It may be that generally stated purposes
are
more reliable than micro-commentary on the provisions of the bill.
[66] In the present
case, the bill explicitly stated that, because of the practical
difficulties encountered, the lawmaker wished
to make provision for
the court to do away with the appointment of a third psychiatrist
(psychiatrist B) on the application of
the prosecutor and for the
NDPP to issued directives regarding the circumstances in which the
prosecutor should make a dispensing
application. In the language of
Lord Browne-Wilkinson in Pepper, to ignore this clear intention would
display ‘cussedness’
on the part of the court.
[67] The directives,
by contrast, post-date the enactment of the legislation. Even if, as
Mr la Grange submitted, the directives
can be equated with
regulations promulgated under a statute, it has been held on a number
of occasions, on grounds of principle
and logic which are hard to
refute, that a statute cannot be interpreted with reference to
regulations promulgated thereunder (Clinch
v Lieb
1939 TPD 118
at
125; Benoni Town Council v Minister of Justice
1963 (3) SA 811
(W) at
813E-G; Moodley & Others v Minister of Education and Culture,
House of Representatives, & Another
1989 (3) SA 221
(A) at
233E-F; National Lotteries Board v Bruss & Others
2009 (4) SA 362
(SCA) para 37; Rossouw & Another v FirstRand Bank Ltd
2010 (6) SA
439
(SCA) para 24).
[68] For all these
reasons, I consider that three psychiatrists, including a private
psychiatrist, must be appointed when the case
falls within s 79(1)(b)
unless the court, upon application by the prosecutor, directs that a
private psychiatrist need not be appointed,
in which case there must
be two psychiatrists. In either event, the court may appoint a
clinical psychologist. The directives contemplated
in s 79(13) are
directives setting out the cases and circumstances in which
prosecutors must request the court to dispense with
the appointment
of a private psychiatrist.
[69] In the present
case, the prosecutor did not request the trial court to dispense with
the appointment of a private psychiatrist.
A private psychiatrist
should thus have been appointed by the court.
Appointment of
psychiatrist for the accused
[70] Quite apart
from this finding, it is common ground that, in cases falling within
s 79(1)(b), the accused must be assessed at
least by two
psychiatrists, namely (i) the medical superintendent of a psychiatric
hospital designated by the court, or a psychiatrist
appointed by such
superintendent at the court’s request (psychiatrist A); and a
psychiatrist appointed for the accused by
the court (psychiatrist C).
[71] When a
magistrate orders an accused person to be psychiatrically assessed in
terms of s 79, the magistrate issues a warrant
to transfer the
accused to the relevant psychiatric hospital. We were told that the
standard form of warrant is Form J138A. The
form requires the
judicial officer to insert the name of the psychiatric hospital whose
medical superintendent will be psychiatrist
A or who will appoint
psychiatrist A at the court’s request. Provision is then made
for two further names to be inserted.
In the case of the second name,
the form contains a footnote with reference to s 79(1)(b). (Form
J138A, like all the other ‘J’
forms one encounters in
criminal records, appears not to be a form prescribed by regulation
under legislation. The J forms have
apparently been developed by the
Department of Justice over the years with a view to ensuring that any
particular step in the criminal
justice process accords with
statutory prescripts.)
[72] The J138A was
not part of the criminal record received in the present case from the
lower court. However, Ms Teunissen through
her industry was able to
locate a copy in the records of VBH. She placed the document before
us. The document identifies VBH as
the relevant psychiatric hospital.
The form does not incorporate a request to the medical superintendent
of VBH to appoint a psychiatrist.
In the space provided for the two
named psychiatrists, the name of Dr BE Boon was inserted in the first
space. Ms Teunissen informed
us that Dr Boon is (or was then) a
psychiatrist at George Psychiatric Hospital. No name was inserted in
the second space. The form
was signed not by the magistrate but by
the clerk of the court. Since a third psychiatrist was not appointed,
one must assume that
Dr Boon was intended to be the psychiatrist for
the accused, ie psychiatrist C.
[73] Ms Teunissen
said that Dr Boon should not have been named in the warrant, because
it was not practical for a psychiatrist based
in George to assess a
patient detained at VBH in Cape Town. She submitted that the correct
course is for the magistrate to determine
the name of the
psychiatrist to be appointed for the accused (psychiatrist C). She
said that while this was not, as a matter of
practice, done as part
of the proceedings in open court, it was the norm for magistrates to
specify the relevant psychiatrist in
the Form J138A.
[74] In the event,
the accused was examined by two State psychiatrists at VBH, namely
Prof S Kaliski and Dr HG de Clercq. Dr Boon
was not involved. On the
assumption that Dr Kaliski, who signed the report ‘For Hospital
CEO’, was properly to be regarded
as psychiatrist A, Dr de
Clercq may have seen herself as being psychiatrist C (the
psychiatrist appointed for the accused), though
she did not say so.
The objective fact is that she was not so appointed. The magistrate
himself did not identify the psychiatrist
to be appointed for the
accused. To the extent that the J138A signed by the clerk of the
court embodied a decision of the magistrate,
the latter’s
decision was not complied with, given that Dr Boon did not assess the
accused.
[75] Ms Teunissen
acknowledged that, on these facts alone, the psychiatric assessment
of the accused was irregular and that the
matter should be remitted
to the lower court so that a fresh psychiatric assessment may be
ordered in due form. I agree. In respect
of psychiatrist A, the
court’s function is to designate the psychiatric hospital and,
if appropriate, to request the hospital’s
medical
superintendent to appoint psychiatrist A. In respect of psychiatrist
C, the court’s function is actually to appoint
the
psychiatrist, which means to appoint an identified person. This task
cannot be delegated. Although both psychiatrists A and
C would be
expected to provide an impartial expert assessment, the lawmaker
specifically requires one of them to be appointed ‘for
the
accused’. A psychiatrist appointed for the accused might regard
it as proper to make more extensive enquiries into the
accused’s
history and family circumstances and to ensure that nothing which
might be favourable to the accused is overlooked.
The medical
superintendent or designee
[76] What I have
said regarding the non-appointment in this case of a private
psychiatrist (psychiatrist B) and the defect in the
appointment of
the psychiatrist for the accused (psychiatrist C) suffices to vitiate
the psychiatric assessment. I nevertheless
need to mention certain
issues relating to Dr Kaliski’s participation as the panellist
I have styled as psychiatrist A. He
did not sign as being the
‘medical superintendent’. The terminology in s
79(1)(b)(i) has not kept pace with changes
of nomenclature in the
health system. The post of ‘medical superintendent’ no
longer exists in psychiatric hospitals.
A public hospital has a
‘Chief Medical Officer’. A psychiatric hospital, such as
VBH, used to have a ‘medical
superintendent’, who would
be a psychiatrist. Nowadays, however, a psychiatric hospital has a
‘Chief Executive Officer’,
who may be, but is not
required to be, a medical doctor. We understand that the current
Chief Executive Officer at VBH is not a
psychiatrist.
[77] We need not
decide whether the phrase ‘medical superintendent’ in s
79(1)(b)(i) is to be construed as a reference
to the Chief Executive
Officer or to the most senior psychiatric position at the hospital.
If the word ‘medical’ is
interpreted as a reference to
the most senior psychiatrist at the hospital, which seems the most
plausible view, the answer in
any given case might depend on whether
or not the Chief Executive Officer happens to be a psychiatrist. If
the Chief Executive
Officer is not a psychiatrist, our enquiries
suggest that it may be difficult to determine which senior
psychiatrist is contemplated
by the phrase ‘medical
superintendent’, because we gather there may be several senior
psychiatrists of equal rank in
the clinical and forensic departments
of the hospital.
[78] Dr Kaliski no
doubt undertook the assessment in good faith, believing himself
either to be the relevant ‘medical superintendent’
or to
be the valid designee of the ‘medical superintendent’.
Whether he was designated by the Chief Executive Officer
(as the
manner in which Dr Kaliski signed might indicate) or by someone else,
or whether he understood that he was himself the
‘medical
superintendent’, does not clearly appear. If Dr Kaliski was not
himself the relevant ‘medical superintendent’,
he was not
strictly a duly appointed member of the panel, because the magistrate
did not direct a request to the ‘medical
superintendent’
to appoint a psychiatrist.
The verdict of
not guilty
[79] If, as I
consider, the proceedings in the court below should be set aside
because of the irregularities in the composition
of the psychiatric
panel, one does not reach the question as to the appropriate order
following upon a finding that the accused
is not fit to stand trial.
However, since we were addressed on these matters, I think we should
state our opinion. What follows
assumes that the accused was
correctly found not to be fit to stand trial.
[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 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).
[82] Unlike the
trial magistrate, I find nothing in the words he has underlined in s
78(1) to support the view he took on this question.
The detention
order
[83] The main reason
for my initial enquiry to the magistrate and to the DPP was my doubt
as to the correctness of the detention
order made by the presiding
magistrate in terms of sub-para (ii) of s 77(6)(a)(ii), an order
supported by the referring magistrate.
In the event, counsel were
agreed that the order should have been made in terms of sub-para (i),
not sub-para (ii).
[84] Section
77(6)(a) reads as follows (my underlining):
‘(6)(a) If the
court which has jurisdiction in terms of section 75 to try the case,
finds that the accused is not capable
of understanding the
proceedings so as to make a proper defence, the court may, if it is
of the opinion that it is in the interests
of the accused, taking
into account the nature of the accused’s incapacity
contemplated in subsection (1), and unless it
can be proved on a
balance of probabilities that, on the limited evidence available the
accused committed the act in question,
order that such information or
evidence be placed before the court as it deems fit so as to
determine whether the accused has committed
the act in question and
the court shall direct that the accused –
(i) in the case of a
charge of murder or culpable homicide or rape or compelled rape as
contemplated in
sections 3
or
4
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007
, respectively, or a charge
involving serious violence or if the court considers it to be
necessary in the public interest, where
the court finds that the
accused has committed the act in question, or any other offence
involving serious violence, be detained
in a psychiatric hospital or
a prison pending the decision of a judge in chambers in terms of
section 47
of the
Mental Health Care Act, 2002
; or
(ii) where the court
finds that the accused has committed an offence other than the one
contemplated in subparagraph (i) or that
he or she has not committed
any offence –
(aa) be admitted to
and detained in an institution stated in the order as if he or she
were an involuntary mental health care user
contemplated in
section
37
of the
Mental Health Care Act
, 2002,
(bb) …
and if the court so
directs after the accused has pleaded to the charge, the accused
shall not be entitled under
section 106(4)
to be acquitted or to be
convicted in respect of the charge in question.’
[85] Chapter VI of
the
Mental Health Care Act deals
with ‘State patients’,
ie persons who are ordered in terms of the
Criminal Procedure Act to
be admitted as State patients. A person who is detained as a State
patient remains in detention indefinitely until, on application
made
to a judge in chambers in terms of
s 47
of the
Mental Health Care
Act, he
or she is discharged. Such an application may be brought by
the patient or by various other officials identified in
s 47(1).
The
application must be accompanied by reasons for the application; by a
report from a psychologist, if the patient has been assessed
by such
a person; and by the further information specified in
s 47(2).
Unless
the application is made by an official curator ad litem, the
application must be referred to such a curator to make the
report
specified in
s 47(3).
An application for discharge cannot be made
within a period of 12 months from the dismissal of any prior
application
(s 47(4)(a)).
[86] Chapter V of
the
Mental Health Care Act deals
with ‘voluntary, assisted and
involuntary mental health care’.
Section 37
of the
Mental
Health Care Act applies
to a so-called ‘involuntary mental
health care user’. Ordinarily a patient is admitted to a
psychiatric facility as
an ‘involuntary mental health care
user’ pursuant to an application in terms of
s 33.
This is not
a criminal proceeding.
Sections 33
to
37
contain procedures to ensure
that this inroad on the user’s freedom is not abused and
endures only for as long as necessary.
In terms of
s 37
, the health
care status of such a user must be reviewed six months after the
initial admission and every 12 months thereafter,
and a report
thereon must be submitted to the relevant statutory Review Board. The
Review Board may decide that the user should
be discharged or may
approve further involuntary care. It is this discharge regime which
applies to a person who has been ordered
to be admitted and detained
pursuant to sub-para (ii) of
s 77(6)(a)
of the Crim
inal Procedure Act.
(It is unnecessary to decide whether an accused who has been admitted
and detained pursuant to s 77(6)(a)(ii)
can be discharged by the head
of a health establishment in terms of
s 38
of the
Mental Health Care
Act, or
whether the accused can only be discharged on the decision of
the Review Board in terms of
s 37.)
[87] The accused in
the present case was charged with culpable homicide. Without
objection by the accused’s attorney, the
presiding magistrate
received information concerning the alleged offence in the form of
the witness statements taken by the police.
These statements
indicated that the accused had, on the day of the alleged offence,
driven a vehicle at high speed without proper
regard to the presence
of children playing in the street and that this led to the death of a
young boy, Godfrey Hano.
[88] It occurred to
me that the presiding magistrate may, notwithstanding this evidence,
have made an order in terms of sub-para
(ii) rather than sub-para (i)
for the reason that, because the accused probably lacked criminal
responsibility at the time of the
alleged offence, he had ‘not
committed any offence’ (see the words I have underlined in
sub-para (ii) of
s 77(6)(a)(ii)).
This was the focus of my first
query to the magistrate and to the Director of Public Prosecutions.
The question of law can be framed
as follows: If the psychiatric
evaluation performed in terms of
s 79
concludes that the accused, by
reason of mental illness or mental defect, lacks capacity to
understand the proceedings and probably
lacked criminal
responsibility at the time of the alleged offence, and if the
information or evidence before the court shows that
the accused, who
is charged with an offence falling within sub-para (i) of
s 77(6)(a)
,
probably committed the act forming the basis of the charge, is the
accused to be detained pursuant to sub-para (i); or must the
court
conclude that, by virtue of the lack of criminal responsibility, the
accused probably ‘has not committed any offence’
and must
thus be admitted and detained pursuant to sub-para (ii)? To the best
of my research, this is not a question which has
pertinently received
attention in our courts.
[89] Where the
psychiatric evaluation concludes that the person lacks capacity to
understand the proceedings, the enquiry mandated
by
s 77(6)(a)
is not
into the question whether the accused committed the offence with
which he is charged (ie whether on a balance of probability
he could
be convicted of the offence) but rather whether the accused
‘committed the act in question’. In context, the
expression ‘the act in question’ has reference to the
actus reus elements of the offence with which the accused is
charged.
If the lawmaker had intended the court to enquire into the question
whether the accused would probably be convicted of
the charged
offence if and when he became capable of understanding the
proceedings, this would have been said. The use of the words
‘committed the act in question’ points to a more limited
enquiry.
[90] This is
confirmed when one has regard to the provisions of
s 78.
That section
operates where the accused has the capacity to understand the
proceedings but the psychiatric evaluation concludes
that he or she
lacked criminal responsibility at the time of the alleged offence.
Prior to the introduction of the provisions of
Chapter 13 as part of
the
Criminal Procedure Act 51 of 1977
, our common law held that a
person who was incapable of appreciating the wrongfulness of his or
her act or omission or of acting
in accordance with an appreciation
of the wrongfulness of his or her act or omission lacked criminal
responsibility and thus had
to be acquitted. Chapter 13 now regulates
this matter where the lack of criminal responsibility is attributable
to mental illness
or mental defect. The capacity to be held
criminally responsible is not an aspect bearing on the actus reus.
Rather, it is a prerequisite
for mens rea (culpability), in that a
court will not attribute to a person lacking criminal responsibility
the guilty state of
mind required for a conviction, whether in the
form of dolus or culpa (see Snyman Criminal Law 5th ed at 149,
159-160).
Section 78(1)
refers to a person ‘who commits an act
or makes an omission which constitutes an offence’ at a time
when he or she
lacks criminal responsibility by virtue of mental
illness or mental defect.
Section 78(6)
provides that where the
accused is found to have lacked criminal responsibility and the court
finds that the accused ‘committed
the act in question’,
he or she is entitled to an acquittal but must then be dealt with in
accordance with sub-paras (i)
or (ii) of
s 78(6)
as the case may be.
[91] The reference
in
s 78(1)
to an accused who ‘commits an act or makes an
omission which constitutes an offence’ and the reference in
s
78(6)
to an accused who ‘committed the act in question’
is only to the actus reus elements of the offence, because the
lawmaker
must be taken to have appreciated that a person who lacked
criminal responsibility could not be found to have mens rea and would
be entitled to an acquittal. Indeed,
s 78(6)
expressly states that
such a person must be found not guilty.
[92] There is a
presumption that words in a statute bear the same meaning unless
there is a clear indication to the contrary (Minister
of the Interior
v Machadodorp Investments Pty Ltd & Another
1957 (2) SA 395
(A)
at 404C-E; Pantanowitz v Sekretaris van Binnelandse Inkomste
1968 (4)
SA 872
(A) at 879C-E). There is every reason to apply this
presumption in the case of the related provisions of ss 77 and 78 of
the Act.
[93] It is true that
sub-para (i) of s 77(6)(a) refers to specific offences and that those
offences cannot be said to have been
committed unless both the actus
reus and the mens rea elements are present. It is also true that a
person who lacks criminal capacity
to understand proceedings, but who
was criminally responsible at the time of the alleged offence, could
be found on the probabilities
to be guilty of the offence, including
the element of mens rea. Nevertheless, this does not alter the fact
that the evidential
enquiry which s 77(6)(a) requires the court to
undertake is limited to whether the accused ‘committed the act
in question’,
the same inquiry contemplated in s 78(6).
Sub-para (i) does not extend the enquiry to the question whether the
accused is probably
guilty of one of the offences specified in that
sub-paragraph. Sub-para (i) states that if the charge against the
accused is one
of those offences and if he committed the act in
question, he must be dealt with in the manner prescribed in that
sub-paragraph.
The charge sheet thus determines the charge which the
accused is facing; and the actus reus elements of that charge in turn
determines
the act or omission which must be evidentially
investigated in order to determine whether the accused probably
‘committed
the act in question’.
[94] It is
unfortunate that sub-para (ii) introduces terminology which appears
to equate a finding that the accused probably ‘committed
the
act in question’ with a finding that the accused probably
‘committed an offence’. However, the introductory
part of
s 77(6)(a), and the distinction drawn in sub-para (i) to the offence
charged on the one hand and the question whether the
accused
‘committed the act in question’ on the other, convince me
that sub-para (ii) was not intended to require a
court to investigate
whether the accused probably committed the ‘offence’ in
the sense of probably being guilty by
virtue of having committed the
actus reus with the required mens rea. The word ‘offence’
in sub-para (ii) was intended
to refer, in my view, to the actus reus
element of the offence. In other words, if the act or omission
committed by the accused
constitutes the actus reus element of an
offence other than one of the offences specified in sub-para (i), the
accused must be
dealt with in accordance with sub-para (ii). This was
also the view expressed by Du Toit AJ in S v Sithole
2005 (1) SACR
311
(W) at 314h-315a.
[95] The word
‘offence’ in the phrase ‘or that he or she has not
committed any offence’ in sub-para (ii)
must be interpreted in
the same way. If the accused has not committed an act or omission
constituting the actus reus element of
any offence, he must be dealt
with in accordance with sub-para (ii). The fact that on the
probabilities the accused lacked criminal
responsibility at the
relevant time and would thus probably in due course be entitled to an
acquittal in terms of s 78(6) if he
or she became capable of
understanding the proceedings and entering a plea does not entitle
the accused in the meanwhile to be
treated as a person who has
probably ‘not committed any offence’ as contemplated in
sub-para (ii) of s 77(6)(a).
[96] This
interpretation of s 77(6)(a) is supported not only by the ordinary
meaning of the words in question, when interpreted
in the context of
the other provisions of Chapter 13 and in particular the provisions
of s 78, but also by a consideration of the
purpose of the
distinction drawn in sub-paras (i) and (ii) of s 77(6)(a) and the
broader legislative scheme in Chapter 13. The
lawmaker evidently
intended that an accused who lacked criminal capacity to understand
proceedings should be dealt with under a
stricter mental health care
regime if he or she has committed more serious acts or omissions.
This provides the public with a greater
measure of protection.
Section 79(1) thus requires a more rigorous process of assessment
where the accused has been charged with
one of the more serious
specified offences.
[97] One finds a
similar distinction in s 78(6): If an accused who lacked criminal
responsibility is found to have perpetrated the
actus reus element of
one of the more serious specified offences, the court has the power
to order him or her to be detained as
a State patient pending a
decision in terms of
s 47
of the
Mental Health Care Act. Since
the
accused contemplated in
s 78
is, unlike the person contemplated in
s
77
, a person who has the mental capacity to understand the
proceedings (and who thus may have had only a temporary lack of
criminal
responsibility), it is understandable that, even in respect
of the more serious offences, the court is not obliged to make an
order
that the accused be detained as a State patient pending a
decision in terms of
s 47
of the
Mental Health Care Act, but
has the
discretion instead to order that the accused be detained as an
involuntary health care user in terms of
s 37
of the
Mental Health
Care Act, or
that he or she be released conditionally or
unconditionally.
[98] By contrast, it
is understandable that a person who has committed one of the more
serious acts or omissions and who by virtue
of mental illness or
mental defect has a current incapacity to understand the proceedings
should be compulsorily subject to an
order of detention in accordance
with
s 47
of the
Mental Health Care Act. (I
use the word
‘understandable’ without expressing a view as to whether
it is constitutionally justifiable for the trial
court not to be
afforded a discretion. I add this qualification, because there is an
application pending in this court in which
the constitutionality of
the detention regime laid down in
s 77(6)(a)
is being challenged.
That application is due to be heard in mid-August 2014.)
[99] If
s 77(6)(a)
were interpreted to mean that a person who currently lacks capacity
to understand the proceedings and who probably also lacked
criminal
responsibility at the time of the alleged offence had to be dealt
with in terms of sub-para (ii) of
s 77(6)(a)
(on the basis that, by
virtue of his or her lack of criminal responsibility, he or she could
not be found to have ‘committed
any offence’), one would
have the absurdity that the court would not have the power, even in
its discretion, to order the
accused’s detention in terms of
s
47
of the
Mental Health Care Act. Such
a person poses at least as
much risk to the public, and probably more, than the person
contemplated in
s 78(6)(i)
, ie a person who lacked criminal
responsibility at the time of the alleged offence but has
sufficiently recovered so as to be able
to understand the
proceedings, yet, in terms of
s 78(6)(i)
, such a person may in the
court’s discretion be ordered to be detained in terms of
s 47
of the
Mental Health Care Act.
[100
] Furthermore, a
person who currently lacks capacity to understand proceedings and who
probably also lacked criminal responsibility
at the time of the
alleged offence poses as much, if not more, danger to the public than
a person with a current incapacity to
understand proceedings but who
had the capacity at the relevant time to be held criminally
responsible. Since
s 77(6)(a)(i)
unambiguously requires the latter
class of person to be detained in terms of
s 47
of the
Mental Health
Care Act, I
can see no reason for the lawmaker to have intended a
lesser form of protection for the public in respect of the former
class of
person.
[101] I thus
consider that where an accused, who by virtue of mental illness or
mental defect is currently unable to understand
the proceedings, is
shown on the probabilities to have committed the actus reus element
of an offence specified in sub-para (i)
of
s 77(6)(a)
, the court is
obliged to order his or her detention as a State patient pending a
decision in terms of
s 47
of the
Mental Health Care Act, whether
or
not the person lacked criminal responsibility at the time of the
alleged offence.
[102] In the case
both of murder and of culpable homicide, the actus reus is the
unlawful causing of the victim’s death. The
distinction between
the two crimes lies in the form of mens rea. However, in the case of
a person who by virtue of mental illness
or mental defect is unable
to understand the proceedings, this difference in mens rea is
irrelevant because the court is not concerned
with the question
whether the accused had the necessary mens rea. This does not detract
from the fact that the prosecution may
have chosen to frame the
charge as one of murder or as one of culpable homicide. In either
case, however, the case falls within
sub-para (i).
[103] The trial
magistrate considered that the term ‘culpable homicide’
in sub-para (i) of
s 77(6)(a)
should be interpreted as applying only
to cases where violence was inflicted with dolus. I do not agree with
this interpretation
and do not consider that the eiusdem generis
principle finds application. The trial magistrate’s view was
not supported by
any of the counsel before us. The term ‘culpable
homicide’ is one with a clear legal meaning. There is no basis
for
limiting its meaning by reference to the eiusdem generis
principle. Furthermore, and for the reasons I have already given, the
enquiry mandated by
s 77(6)(a)
is not concerned with mens rea. And
apart from the fact that in this case the causing of fatal injuries
resulting in the boy’s
death involved physical violence through
the instrumentality of a motor vehicle, sub-para (i) does not draw
distinctions between
the presence or absence or degree of violence.
If the accused is charged with culpable homicide, and if the court is
satisfied
on the probabilities that the accused’s unlawful
conduct caused the victim’s death, the case falls under
sub-para (i).
[104] In the present
case, therefore, the magistrate erred in law by finding the accused
not guilty. Furthermore, the magistrate
should have made an order in
terms of
s 77(6)(a)(i)
that the accused be detained in a psychiatric
hospital or prison pending the decision of a judge in chambers in
terms of
s 47
of the
Mental Health Care Act.
[105
] I must
emphasise that nothing said in this judgment is intended to pronounce
on the constitutional challenge previously mentioned.
The present
matter will need to be remitted to the trial court to order a fresh
psychiatric assessment, after which the enquiry
mandated by
s
77(6)(a)
will (if it arises) have to be undertaken afresh. It is
likely, by the time that stage is reached, that this court will have
given
judgment on the constitutional question.
What should we
do?
[106] The question
then arises whether this court can and should substitute, for the
magistrate’s erroneous finding and order,
the order he should
have made. The matter is not serving before us as a review in terms
of
s 304
or
304A
of the
Criminal Procedure Act. The
accused was not
convicted of an offence in the court a quo, and the order made by the
magistrate in terms of
s 77(6)(a)(ii)
was not a ‘sentence’
as contemplated in
s 302(1)(a).
Furthermore, the accused was legally
represented in the lower court.
Section 77
itself does not make
provision for an automatic review. What
s 77(8)
says is that an
accused against whom a finding is made under
s 77(6)(a)
may appeal
against such finding and that such appeal shall be made in the same
manner and subject to the same conditions as an
appeal against a
conviction by the court for an offence. There is no such appeal in
this case.
[107] That does not
mean that the High Court has no jurisdiction to review and set aside
the proceedings of the lower court. In
terms of
s 22(1)
of the
Superior Courts Act 10 of 2013
the proceedings of a lower court may
be brought under review in the High Court by virtue inter alia of a
‘gross irregularity
in the proceedings’. An error of law
might in some circumstances amount to a gross irregularity (see
Jordan & Another
v Penmill Investments CC & Another
1991 (2)
SA 430
(E) at 441B-C; Qozeleni v Minister of Law and Order &
Another
1994 (3) SA 625
(E) at 638D-H). The High Court also has an
inherent power to review the proceedings of lower courts on the basis
of the constitutional
principle of legality (cf S v Mapey
[2007]
ZAWCHC 22
paras 12-15). The High Court’s rules of procedure
would ordinarily require that the aggrieved party institute a civil
application
for review on notice of motion in terms of rule 53. In
due course, and after the filing of the record and affidavits, the
High
Court would hear oral argument on the application. There are
occasions where, in the interests of justice, a less formal process
is followed. Thus a court might set aside irregular proceedings upon
referral by the magistrate (for a recent example in this court,
see S
v Xameni
[2014] ZAWCHC 36
paras 6 and 9 and cases there cited). The
referring magistrate in the present matter presumably assumed that an
informal process
of review and correction could be followed here.
[108] In the event,
the matter has been fully argued before us in open court. The accused
had notice of the hearing and was represented
by a legal aid lawyer.
Mr Klopper’s submission was that the proceedings in the court a
quo should be set aside on the basis
that the magistrate should
consider afresh the appointment of a psychiatric panel to assess the
accused. He said, correctly in
my view, that the justice of the case
cannot be determined by trying to guess what the outcome of a fresh
psychiatric evaluation
will be and whether, if the accused were now
found fit to stand trial, he would be convicted or acquitted.
Detention pursuant to
s 77(6)(a), whether under sub-para (i) or (ii),
is an inroad on the liberty of the accused person. Such detention
should not be
ordered unless the accused has been found unfit to
stand trial in accordance with the procedure laid down in s 79.
[109] I did not
understand counsel for the Minister and DPP to dispute that we should
intervene if we found the panel to have been
improperly constituted.
Conclusion
[110] I need to say
something about the way in which the accused was dealt with by the
mental health care authorities after the
court a quo’s
decision. Albeit erroneously, the accused was ordered to be admitted
and detained at VBH as if he were an involuntary
mental health care
user contemplated in
s 37
of the
Mental Health Care Act. I
directed
enquiries concerning the accused’s case to the Western Cape
Review Board (one of the boards established in terms
of
s 18
of the
Mental Health Care Act). I
am most grateful to the chairperson of the
Review Board, Dr T Sutcliffe, for his prompt and full response to my
enquiries. From
the information supplied by the Review Board, it
appears that the accused was under observation at VBH over the period
20 April
to 7 June 2012. After the court a quo’s order of 12
June 2012 the accused was re-admitted to VBH as an involuntary health
care user contemplated in
s 37
of the Mental Health Care Act but was
discharged on 19 July 2012. The discharge form said that the accused
would ‘be transferred
to Oudtshoorn/George to follow up at CHC
there’. The provincial database indicates that the accused was
discharged from Oudtshoorn
Hospital on 4 September 2012 and was
subsequently seen there sporadically on eight occasions as an
outpatient, the last such visit
being on 28 January 2014.
[111] It thus
appears that, barely a month after the detention order, the accused
was discharged from VBH. This was presumably done
in terms of
s 38
of
the
Mental Health Care Act. From
the information supplied by Dr
Sutcliffe, the discharge does not seem to have followed upon a
decision by the Review Board in terms
of
s 37.
[112] Since we have
not heard argument on the matter, I prefer to express no opinion as
to whether an accused who has been ordered
to be detained pursuant to
s 77(6)(a)(ii)
of the
Criminal Procedure Act can
be discharged by the
head of the health establishment in terms of
s 38
or whether
s 37
is
the exclusive provision under which such a person can be discharged.
I can see arguments both ways.
[113] However, and
on the assumption that
s 38
can in principle be invoked in such
cases, a discharge under that section could only have been made in
the present case if the
head of VBH decided that the accused was
‘capable of making informed decisions’, ie informed
decisions about his own
care. Although there may be a difference
between the capacity to make informed decisions about one’s own
care and the capacity
to understand criminal proceedings, I am
surprised that VBH, within less than two months of having found that
the accused lacked
the capacity to understand criminal proceedings
and that he had already lacked criminal responsibility at the time of
the incident
in September 2009, was able to conclude that he was
capable of making informed decisions. A rapid recovery in the
accused’s
mental condition does not appear consistent with the
diagnosis in the psychiatric report of June 2012.
[114] It is also a
matter of concern that there does not appear to be any legislative
procedure which ensures that the DPP receives
periodic reports as to
the mental health status of a person who has been referred for
detention in terms of sub-para (ii) of
s 77(6)(a)
of the
Criminal
Procedure Act. The
prosecution of such a person should ordinarily
proceed if the accused recovers sufficiently to be able to understand
the proceedings.
Even if there is a psychiatric evaluation indicating
that the accused lacked criminal responsibility at the time of the
alleged
offence, it would usually be appropriate for the person (if
he or she recovers) to be prosecuted so that an appropriate verdict
and order for detention can be made in terms of
s 78(6).
[115] In the absence
of legislative machinery, it would be desirable for the DPP and the
mental health care authorities to establish
a protocol which ensures
that the prosecution service is timeously informed of relevant
developments in the accused’s mental
health status.
[116] To summarise
my conclusions regarding
s 79(1)(b):
(i) It would be
desirable for the term ‘medical superintendent’ in
sub-para (i) to be amended to conform with current
nomenclature at
psychiatric hospitals. It is currently unclear whether the said
expression is now to be interpreted as a reference
to the chief
executive officer of the psychiatric hospital or to a senior
psychiatric position at the hospital (and if so, which
position).
Probably, though, the expression should be interpreted as referring
to the most senior forensic psychiatric position
at the hospital.
(ii) The court’s
first function in relation to sub-para (i) is to designate the
relevant psychiatric hospital. If the court
does no more than
designate a psychiatric hospital, the first psychiatrist
(psychiatrist A in the language of this judgment) is
the ‘medical
superintendent’ himself or herself.
(iii) If the court
intends anyone other than the medical superintendent himself or
herself to be psychiatrist A, the court’s
direction in terms of
s 79(1)(b)
should incorporate a request to the medical superintendent
to appoint a psychiatrist as psychiatrist A. The latter psychiatrist
may be a State or a private psychiatrist.
(iv) Given the
uncertainty as to the meaning of ‘medical superintendent’
in relation to the nomenclature currently in
use at psychiatric
hospitals, the safest course, pending any statutory amendment, would
probably be for the trial court always
to request the ‘medical
superintendent’ to appoint psychiatrist A and for such
appointment to be made jointly by the
Chief Executive Officer and the
most senior psychiatrist (or psychiatrists) at the designated
psychiatric hospital.
(v) In regard to
s
79(1)(b)(ii)
, the appointment of a private psychiatrist (psychiatrist
B) is mandatory unless the court, upon application from the
prosecutor,
directs that the appointment of a private psychiatrist
may be dispensed with. If the court dispenses with the appointment of
a
private psychiatrist, there will be no psychiatrist B on the panel
at all; the court does not in that event appoint a State psychiatrist
as psychiatrist B.
(vi) The directives
contemplated in
s 79(1)(b)(ii)
read with
s 79(13)
are directives
regarding the cases and circumstances in which the prosecutor must
apply to the court to dispense with the appointment
of a private
psychiatrist.
(vii) Pending the
revision of the directives already issued by the NDPP pursuant to
s
79(13)
, the directives currently in existence should be construed as
determining the circumstances in which there should be a private
psychiatrist and thus as defining by necessary implication the
reverse cases and circumstances in which the prosecutor should apply
to the court to dispense with the appointment of a private
psychiatrist. It is, however, desirable, to avoid confusion, that the
directives issued by the NDPP be revised to conform with the declared
meaning of
s 79(1)(b)(ii)
as soon as may be expedient.
(viii) With regard
to
s 79(1)(b)(iii)
, the appointment of a psychiatrist for the accused
(psychiatrist C) is mandatory. This psychiatrist may be a State or
private psychiatrist.
The psychiatrist must be identified in the
court’s s 79(1)(b) direction.
(ix) The court may
in its discretion appoint a clinical psychologist to the panel. This
is so whether or not a private psychiatrist
has been appointed.
(x) If, pursuant to
the psychiatry evaluation and report, the accused is found unfit to
stand trial as contemplated in
s 77
, no verdict of guilty or not
guilty should be made. The court should proceed directly to consider
the appropriate detention order
in terms of
s 77(6)(a).
(xi) In determining
the appropriate detention order in terms of
s 77(6)(a)
, the court
must consider whether the accused committed the actus reus elements
of the charge. If the actus reus elements in the
case of a charge as
contemplated in
s 77(6)(a)(i)
are present, a detention order in terms
of that sub-paragraph must be made. In the case of a charge of
culpable homicide, no distinctions
are drawn between degrees of
violence.
Binns-Ward J:
[117] I concur. The
proceedings conducted in the court a quo on and after 5 August 2011
are set aside. The matter is remitted to
the court a quo to be dealt
with in accordance with the legal principles set out in this
judgment.
BINNS-WARD J
ROGERS J
1
Project
89’s full title was: ‘The declaration and detention of
persons as State patients under the
Criminal Procedure Act, Act
51
of 1997, and the discharge of such persons under the Mental Health
Act, Act 18 of 1973, including the burden of proof with
regard to
the mental state of an accused or convicted person.'
2
See
recommendations at paras 8.55-8.58 under the heading, 'Mandatory
appointment of the third psychiatrist under
section 79(1)(b)
of the
Criminal Procedure Act'.
3
See
recommendations at paras 8.24-8.25 under the heading, 'The
conferring of recognition on reports by clinical psychologists
concerning
criminal responsibility.'
4
See
p 162 of the report.
5
The
use of parliamentary materials in accordance with
Pepper
has
been followed in Canada (see, for example,
Bristol-Myers Squibb
Canada Inc v Canada (Attorney-General)
2001 CanLII 22128
(FC)
para 20 and footnote 10. In Australia, it appears that the use of
such materials has long been sanctioned by statute: see
s 15BA
of the Acts Interpretation Act of 1901 (Cth), referred to in
Bryers
v Kendle
[2011] HCA 26
para 97 and footnote 128.