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[2014] ZAWCHC 135
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De Vos N.O and Another v Minister of Justice And Constitutional Development and Others; InRe: Snyders and Another v minister of Justice And Constitutional Development and Others (4502/10, 5825/14) [2014] ZAWCHC 135; 2015 (1) SACR 18 (WCC); [2014] 4 All SA 374 (WCC) (5 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE division, CAPE TOWN)
Case
No
4502/10
DATE:
05 SEPTEMBER 2014
In
the matter between:
ANNA-MARIE
DE VOS N O
..................................................
First
Applicant
(
Curator
ad litem
to LLEWELLYN STUURMAN)
MARIA
STUURMAN
.........................................................
Second
Applicant
And
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
...............................
First
Respondent
THE
DIRECTOR OF PUBLIC
PROSECUTIONS (WESTERN
CAPE)
............................
Second
Respondent
MINISTER
OF HEALTH
...................................................
Third
Respondent
DOWN
SYNDROME SOUTH AFRICA
............................
First
amicus curiae
CAPE
MENTAL HEALTH
............................................
Second
amicus curiae
And
In
the matter between:
Case
No 5825/14
SARAH
SNYDERS
...............................................................
First
Applicant
MORNAY
CALITZ N O
(
curator ad litem
to PIETER SNYDERS)
...........................
Second
Applicant
And
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
..............................
First
Respondent
MINISTER
OF HEALTH
................................................
Second
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
(WESTERN
CAPE)
............................................................
Third
Respondent
Court:
griesel J
Heard:
13 August 2014
Delivered:
5 September 2014
JUDGMENT
Griesel
J:
[1]
These two applications have been
consolidated and were heard together in the light of the similarity
in the relief claimed herein
as well as the applicable legal
principles on which the claims are based. Both applications concern
persons, Mr Llewellyn Stuurman
and Mr Pieter Snyders respectively,
with mental disabilities who find themselves in conflict with
the criminal justice system,
facing charges of murder and rape
respectively. They are represented in these proceedings by their
respective mothers as well
as the curators’
ad
litem
appointed for them by this court.
[2]
The
relief sought in both applications is an order declaring s 77(6)
(a) of the Criminal Procedure Act, 51 of 1977 (‘CPA’)
to
be unconstitutional, together with ancillary relief. In the
Stuurman
matter, the attack is confined to s 77(6) (a)(i), whereas the
applicants in the
Snyders
matter
are assailing both sub-paragraphs (i) and (ii).
[1]
In a nutshell, the problem concerns the fate of persons who, by
reason of mental illness or mental defect, are unfit to be
tried.
[3]
The respondents cited herein, all of whom
oppose the relief claimed, are the Minister of Justice and
Constitutional Development
(as the Department was formerly called),
the Minister of Health in the National Government and the Director of
Public Prosecutions,
Western Cape (‘DPP’). All three
respondents were represented before me by Mr
Ntsebeza
SC, with him Ms
Poswa-Lerotholi
,
while Ms
Pillay
SC appeared with Ms
Karachi
for the applicants in the
Stuurman
matter and Mr
Katz
SC, with Mr
Klopper
,
appeared for the applicants in the
Snyders
matter.
[4]
In addition, two organisations have applied
for and have been granted leave to join the application as
amici
curiae
, namely Cape Mental Health
(‘CMH’) and Down Syndrome South Africa (‘DSSA’).
Both
amici
align themselves, broadly, with the relief claimed by the applicants
herein. Helpful written as well as oral submissions were
also
submitted to this court by Ms
Goodman
,
together with Mr
Kelly
,
on behalf of CMH and Ms
Fourie
on behalf of DSSA.
Legislative
framework
[5]
The
issues of mental illness and criminal responsibility are regulated in
Chapter 13, comprising ss 77–79 of the CPA,
headed
‘Accused: Capacity to Understand Proceedings: Mental Illness
and Criminal Responsibility’. These sections ‘form
an
integrated unit.’
[2]
[6]
Section
77 deals with an accused person’s fitness to stand trial. The
criterion for an accused’s fitness to stand trial,
as expressed
in s 77(1), is whether the accused by reason of ‘mental
illness or mental defect [is] not capable of understanding
the
proceedings so as to make a proper defence’. If it appears to
the court at any stage in the proceedings that the accused
may be
unable to understand the proceedings due to a mental illness or
defect, the court must direct that the accused be referred
for
observation in terms of s 79 of the CPA.
[3]
[7]
Section
78 deals with the situation where the accused is found, by reason of
mental illness or mental defect, not to be criminally
liable for an
act or omission which would otherwise have been punishable as a
crime.
Hiemstra
[4]
conveniently summarises the difference between ss 77 and 78 by
explaining that the sections deal with two questions that can
arise,
namely the ‘now’ and the ‘then’ questions:
‘
1.
The accused is suffering from a mental illness the effect of which is
that he or she cannot be put on trial: section 77 –
the “now”
question. In the adjudication of this question the condition of the
accused when the conduct in question
was committed is not considered.
2.
Responsibility for the alleged offence cannot be placed at the door
of the accused because of his or her mental condition at
the time of
the conduct: section 78 – the “then” question.
According to subsection (1) this is a dual question,
namely whether
the accused was able to (i) appreciate the wrongfulness of the
conduct and (ii) act accordingly.’
[8]
Although
dealing with different situations, there is a close correlation
between the two sections. Thus, the provisions of
ss 77(1) to
(4) are reproduced verbatim in ss 78(2) to (5): both sections
contemplate an enquiry in terms of s 79,
in terms of which
an accused person must be assessed by suitably qualified medical
experts. The experts must diagnose the ‘mental
condition’
of the accused and report their findings to the court. If the experts
are unanimous in their findings as to the
accused’s capacity,
and their findings are not contradicted by either the prosecutor or
the accused, then the court can determine
the matter on the basis of
their reports without hearing further evidence.
[5]
On
the other hand, where their findings are not unanimous or, if
unanimous, are disputed by the prosecutor or the accused, ‘the
court shall determine the matter after hearing evidence’.
[6]
[9]
When it comes to ss 77(6) and 78(6),
the two sections diverge: as noted earlier, the former deals with the
‘now’
question, whereas the latter deals with the ‘then’
question. Nonetheless, the similarities continue, because in both
situations, the court is enjoined to deal with persons suffering from
mental illness or mental defect who are charged with the
same serious
offences. However, the ways in which the court may deal with the
accused persons differ markedly: in terms of s 77(6),
where a
court finds that an accused is incapable of understanding the
proceedings so as to make a proper defence, it is enjoined
to follow
one of two particular avenues provided for in ss 77(6)(a)(i) and
(ii), respectively:
‘
(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
[7]
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
.[‘MHCA’]
[8]
(ii)
where the court finds that the accused has committed an offence other
than one contemplated in subparagraph (i) or that he
or she has not
committed any offence –
(aa)
be admitted to and detained in an institution stated in the order as
if he or she were an involuntary mental health care user
contemplated in section 37 of the Mental Health Care Act,
2002,
[9]
(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.’
[10]
Section 78(6), on the other hand, provides:
‘
(6)
If the court finds that the accused committed the act in question and
that he or she at the time of such commission was by reason
of mental
illness or intellectual disability not criminally responsible for
such act—
(a)
the court shall find the accused not guilty; or
(b)
if the court so finds after the accused has been convicted of the
offence charged but before sentence is passed, the court shall
set
the conviction aside and find the accused not guilty,
by
reason of mental illness or intellectual disability, as the case may
be, and direct—
(i)
in a case where the accused is charged with murder or culpable
homicide or rape or another charge involving serious violence,
or if
the court considers it to be necessary in the public interest that
the accused be—
(aa)
detained in a psychiatric hospital or a prison pending the decision
of a judge in chambers in terms of section 47 of the Mental
Health
Care Act, 2002;
(bb)
admitted to and detained in an institution stated in the order and
treated as if he or she were an involuntary mental health
care user
contemplated in section 37 of the Mental Health Care Act, 2002;
(cc)
. . . . . .
(dd)
released subject to such conditions as the court considers
appropriate; or
(ee)
released unconditionally;
(ii)
in any other case than a case contemplated in subparagraph (i), that
the accused—
(aa)
be admitted to and detained in an institution stated in the order and
treated as if he or she were an involuntary mental health
care user
contemplated in section 37 of the Mental Health Care Act, 2002;
(bb)
. . . . . .
(cc)
be released subject to such conditions as the court considers
appropriate; or
(dd)
be released unconditionally.’
[11]
Thus, the most conspicuous difference
between ss 77(6) and 78(6) is that the court in terms of the
latter provision has a fairly
wide discretion as to a range of orders
that can be made, whereas the court under the former provision has no
discretion.
Interpretation
[12]
In
S
v Sithole
,
[10]
EM du Toit AJ undertook a detailed analysis of ‘the rather
obscure provisions of s 77(6)(a)’, as he labelled
them,
[11]
and with which
description I respectfully agree. In that case, the accused was
charged with two counts of murder involving
a firearm and one of
attempted murder. The accused was referred in terms of s 79 of
the CPA to be examined by a panel of psychiatrists
so as to enquire
into whether he, by reason of mental illness or mental defect (a) was
capable of understanding the court
proceedings so as to make a
proper defence; and/or (b) was at the time of the commission of
the offence criminally responsible
for the offence charged. The panel
unanimously answered both questions in the negative.
[13]
In applying the provisions of the
sub-section to the case before him, Du Toit AJ held:
‘
The
phrase “has committed the act in question” obviously
carries no connotation of
mens rea
or criminal responsibility and is intended to refer purely to the
physical commission of the
actus reus
.
Furthermore,
the subsection in my view does not envisage any enquiry in the nature
of a trial or a “determination” or
“finding”
in the sense of a verdict or a judgment. Any such procedure would be
completely inappropriate since the person
who allegedly committed the
act by definition is incapable of understanding the proceedings. All
that appears to be required is
that, before directing that an accused
be detained and/or treated in terms of the appropriate provisions of
the Mental Health Act
the court should satisfy itself as to what
actus reus
, if any, he or she has committed.
The
first proviso pertaining to an order that information or evidence be
placed before a court is that, taking the nature of the
accused’s
“incapacity”, ie his “mental illness or mental
defect”, into account, the court must be
of the opinion that it
is in the accused’s interests that such information or evidence
be placed before it. This proviso
would, inter alia, tend to exclude,
and protect the accused from, prejudicial information and evidence
even where it is highly
relevant to a determination or finding.
The
second proviso is more obscure, viz the court may order the
information or evidence to be placed before it “unless
it
can be proved
on a balance of probabilities that, on the limited
evidence available the accused committed the act in question”
(my emphasis).
The proviso is framed in the subjunctive mood and
appears to envisage the availability of such proof, or an ability to
furnish
it, rather than the actual adducing or disclosure thereof to
the court. The latter interpretation in my opinion would be virtually
indistinguishable from the placing of “information or evidence”
before the court, and therefore tautologous, and could
hardly have
been intended by the Legislature. I further point out that the onus
mentioned is proof on a balance of probabilities,
and not the
criminal burden of proof beyond reasonable doubt. The subsection then
further provides that a court finding an accused
to be incapable of
understanding the proceedings so as to make a proper defence, “shall
direct” that the accused be
detained as provided in para (a)(i)
if he is charged with an offence involving serious violence, or if
the court considers it 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”. In the premises
the second proviso, in my view, enables a court to make a finding
that the accused committed
an act on the strength of a reliable
assurance that there is available evidence to justify such a finding
on a balance of probabilities.
It
follows that, in my view, the two provisos in effect severely
restrict the exercise of a court’s discretion to order that
information or evidence be placed before it.’
[12]
[14]
As
regards the second proviso, the learned judge accepted the assurance
by the prosecutor, after consulting with the investigating
officer,
that there was evidence that the accused had committed the acts
in question and that a witness was available to testify
to such
commission. This assurance, which was not queried on behalf of
the accused, was sufficient for the court to find,
for purposes of
the sub-section, ‘that the accused probably committed the
aforesaid acts’.
[13]
The
learned judge accordingly proceeded to issue the necessary detention
order, as dictated by the provisions of sub-para (i).
[15]
To summarise, the effect of s 77(6)(
a
)(i)
is that where an accused person is found –
·
by virtue of his or her mental condition to
be incapable of understanding the proceedings so as to make a
proper defence; and
·
on a balance of probabilities, to have
committed the
act
(ie
actus reus
)
of murder, culpable homicide, rape or compelled rape, or an offence
involving serious violence;
then
the court is obliged, automatically and in every case, to order that
the accused be detained in a psychiatric hospital or prison
for an
indefinite period until otherwise directed by a judge in chambers in
terms of s 47 of the MHCA.
[14]
Factual
background
[16]
In order to contextualise the relief
sought, it is necessary to refer briefly to the factual background in
respect of
both applications, although
it needs to be emphasised that the present enquiry is not fact-bound.
Stuurman
matter
[17]
Mr Stuurman is charged with murder, having
allegedly stabbed a 14-year-old girl to death on 10 June 2005 when he
was also 14 years
old. During the course of the trial in the regional
court in Oudtshoorn, he was referred by the court for observation in
terms
of ss 77(1), 78(2) and 79(2) of the CPA.
[18]
It appeared from the evidence that Mr
Stuurman had sustained a serious head injury at the age of 5, which
left him severely mentally
handicapped.
[19]
The three psychiatrists who examined him
expressed differing opinions on certain aspects, but were unanimously
of the view that
he would be unable to understand basic court
proceedings.
Snyders
matter
[20]
In the second application, Mr Pieter
Snyders is 35 years of age and resides with his family. He was born
with Down syndrome and
as a result he has cognitive deficits.
[21]
In 2013, Mr Snyders was arrested and
charged with the rape of an 11-year-old girl. According to the
complainant, the rape took place
some five to six years previously.
[22]
On 26 April 2013, when Mr Snyders appeared
at the Blue Down’s Magistrate’s Court, he was referred in
terms of s 77(1)
of the Act to an enquiry in order to ascertain
whether or not he has the capacity to understand the proceedings. The
unanimous
finding of the members of the panel was that Mr Snyders was
born with Down syndrome with moderate grade mental retardation. Their
clinical diagnosis of him was one of ‘moderate mental
retardation’. In terms of s 79(4)(c), he was accordingly
found to be ‘not fit to stand trial in terms of s 77(i)’
[sic] and in terms of s 79(4)(d), he was found to
be ‘not
able to appreciate the wrongfulness of the alleged offence and act
accordingly’. It was also their unanimous
view that Mr
Snyders would not be able to stand trial as his cognition would never
improve. In addition, the panel raised a note
of concern in their
report:
‘
As
the alleged offence occurred some 5 years ago it does raise the
possibility that he may not be dealt with fairly with respect
to the
facts of the case. The court should be advised that consequently to
declare him a state patient [as contemplated by s 77(6)(a)(i)]
will consign him to indefinite institutionalisation as his cognition
will never improve. Unless there are other reports of inappropriate
behaviour committed by him in the community this may not be a fair or
appropriate disposal.’
[23]
The magistrate thereupon issued an order in
terms of s 77(6)(a)(i) to the effect that the accused be
detained in a psychiatric
hospital or prison pending the decision of
a judge in terms of s 47 of the MHCA. The matter subsequently
came before me on
special review after it became apparent that the
magistrate had issued the order in question without the second leg of
the enquiry
having been duly complied with; in other words, there was
insufficient evidence to satisfy the court on a balance of
probability
that the accused had committed the act that he had been
charged with.
[24]
On
16 September 2013, Henney J and I accordingly set aside the order and
remitted the matter to the regional court to be dealt with
in terms
of s 77(6).
[15]
The
matter has subsequently been postponed pending the outcome of these
proceedings and the accused has been released on bail.
In
limine
ripeness
[25]
Before
considering the applicants’ contentions regarding the
constitutionality of the impugned provisions, it is necessary
to
consider an objection
in
limine
raised on behalf of the respondents. They pointed out that the
proceedings in the magistrate’s courts in both matters are
incomplete, with the result (according to them) that the present
applications have been brought prematurely.
In this
context, the respondents relied,
inter
alia
,
on cases such as
Motsepe
v Commissioner for Inland Revenue,
[16]
National
Coalition for Gay and Lesbian Equality v Minister of Home
Affairs,
[17]
Lawyers
for Human Rights v Minister of Home Affairs
[18]
and
DPP,
Transvaal v Minister of Justice and Constitutional Development
.
[19]
[26]
I am aware of the undesirability, in
general, of adjudicating on constitutional issues that may arise in
criminal proceedings prior
to the conclusion of such proceedings. I
have accordingly given serious consideration to the objection
raised on behalf of
the respondents, which is by no means without
merit. Having done so, however, I have decided not to uphold the
objection
in limine
for the reasons that follow.
[27]
First,
it is not an inflexible rule and the court may depart from it where
the interests of justice so require, depending on the
circumstances
of the individual case. Thus eg, s 38 of the Constitution
provides that persons like the applicants herein have
the right to
approach a competent court ‘alleging that a right in the Bill
of Rights has been
infringed
or
threatened’
.
[20]
In the case of
Abahlali
baseMjondolo Movement of SA
,
[21]
the Constitutional Court confirmed that where a law
threatens
constitutional rights, it is not necessary for the applicants to
wait until the law has been implemented and the accused person
is
detained before approaching a court.
[22]
This principle is also applicable in the present matter as s 77(6)(a)
of the CPA at the very least
threatens
the constitutional rights of the accused persons in these two
matters, in as much as the result in their criminal cases is
predetermined, ie they will be detained, even if they are found not
to have committed any offence.
[28]
Secondly,
as correctly pointed out by the applicants, their complaint is
directed against the scheme of s 77(6)(a) and not
against the
conduct or findings of the individual judicial officers involved.
[23]
[29]
Thirdly,
in
Ferreira
v Levin; Vryenhoek v Powell NO
,
[24]
the Constitutional Court confirmed that the enquiry into the
constitutionality of a statute is an objective one:
‘
The
answer to the first question is that the enquiry is an objective one.
A statute is either valid or “of no force and effect
to the
extent of its inconsistency”. The subjective positions in which
parties to a dispute may find themselves cannot have
a bearing on the
status of the provisions of a statute under attack. The
Constitutional Court, or any other competent Court for
that matter,
ought not to restrict its enquiry to the position of one of the
parties to a dispute in order to determine the validity
of a law. The
consequence of such a (subjective) approach would be to recognise the
validity of a statute in respect of one litigant,
only to deny it to
another. Besides resulting in a denial of equal protection of the
law, considerations of legal certainty, being
a central consideration
in a constitutional state, militate against the adoption of the
subjective approach.’
This
part of Ackermann J’s minority judgment was concurred in by the
majority.
[25]
Kriegler J, in a
separate minority judgment, would have declined to hear the matter
based on considerations of ‘ripeness’.
[26]
Significantly, however, his views in this regard did not find favour
with the rest of the court.
[30]
Fourthly, and in any event, the present
matter has been fully and extensively argued before me on behalf of
all interested parties.
It would therefore amount to an awful waste
of time and resources if the whole exercise had to be repeated on
another day before
another court, once the final hurdles had been
cleared in the lower courts.
[31]
Finally, for the reasons set out below, I
have come to a firm view regarding the unconstitutionality of the
impugned provisions.
In the circumstances, it is my duty to declare
them to be such, subject to confirmation by the Constitutional Court,
instead of
allowing them to remain on the statute book indefinitely
until some litigant may in future have cause to bring a similar
application
in suitable circumstances.
[32]
With that prelude, I now turn to the
applicants’ constitutional challenge of the provisions of
s 77(6)(a)(i) and (ii).
Applicants’
case
[33]
The applicants have assailed the
constitutionality of ss 77(6)(a)(i) and (ii) of the CPA across a
broad front: they submitted
that those provisions infringe or
threaten the rights of the accused persons in question,
inter
alia
, to equality (s 9), dignity
(s 10), freedom and security of the person (s 12) as well
as the rights of children,
as contained in s 28(1)(g), read with
s 28(2) of the Constitution.
[34]
Of these rights, the most directly
implicated is the right to freedom and security of the person in
terms of s 12(1)(a)
of the Constitution. During oral argument
before me, this was also the right that received most attention.
Right
to freedom and security of the person – s 12(1)(a)
[35]
Section 12(1)(a) of the Constitution
provides that ‘[e]veryone has the right to freedom and security
of the person, which
includes the right
(a)
not
to be deprived of freedom arbitrarily or without just cause’.
[36]
There
can be no doubt that a detention order in terms of either sub-para
(i) or (ii) of s 77(6)(a) amounts to a deprivation
of freedom,
as contemplated by s 12(1)(a). As was stated by the KZN court,
with specific reference to detention in a mental
institution:
[27]
‘
It
goes without saying and is self-evident that the detention of a
person in a mental institution on an involuntary basis is
far-reaching,
involving as it does the deprivation of that person’s
liberty.’
[37]
Bonthuys,
commenting on the provisions of the Mental Health Care Bill (before
its enactment as the MHCA), described the effects
of
institutionalisation in graphic detail as follows:
[28]
‘
Confining
a person to a mental health institution results in a serious
curtailment of her civil liberties. The patient loses her
privacy,
her ability to decide issues of daily routine and her ability to move
about freely, sometimes even to the extent of being
physically
restrained. The patient may be forced to undergo medical treatment to
which she objects, including the administration
of psychotropic
medicine, invasive surgery and other procedures like
electro-convulsive therapy (shock treatment). Moreover, the
mere
classification of someone as mentally ill necessarily entails a
negative value judgment in a society where humanity is defined
as the
ability to interact rationally with the environment and with other
people.’
[38]
It
follows
a
fortiori
that the alternative remedy, namely of committing such an accused
person to prison, as the court is empowered to do in terms of
sub-para (i), is even more far-reaching.
[29]
It is thus not necessary to embark on a philosophical or
jurisprudential analysis of the meaning of the concepts of
‘freedom’
and ‘deprivation’ in this
context.
[30]
Instead, the more
fundamental enquiry is into the question whether the deprivation
of freedom sanctioned by s 77(6)(a)(i)
of the CPA is ‘arbitrary’
or ‘without just cause’. This question will be considered
below, after briefly
dealing with the position in terms of sub-para
(ii) of s 77(6)(a).
Section
77(6)(a)(ii)
[39]
This sub-paragraph applies where the
accused is found to have committed a less serious offence than one of
the listed offences contemplated
in subpara (i) or even
where he or she has not committed
any
offence. In that case, the court must order that the accused 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 s 37 of the MHCA.
[40]
Similar arguments as those referred to
above with reference to sub-para (i) were advanced by counsel in the
Snyders
matter
in respect of
this
sub-paragraph. Counsel also drew attention to the difference in
approach between sub-para (ii) of s 77(6)(a) of the CPA,
on the
one hand, and s 32(b) of the MHCA, on the other, in so far as
the requirements for admission are concerned: before
a mental
health care user is admitted to a health establishment for care,
treatment and rehabilitation services without his
or her consent
on an outpatient or inpatient basis, s 32(b) requires it to be
established at the time of making the application –
‘
[that]
there is reasonable belief that the mental health care user has a
mental illness of such a nature that –
(i) the user is
likely to inflict serious harm to himself or herself or others; or
(ii) care, treatment
and rehabilitation of the user is necessary for the protection of the
financial interests or reputation of
the user’.
[41]
By contrast, no similar enquiry is required
before a court orders an accused person to be admitted and detained
as an involuntary
user in terms of sub-para (ii) of s 77(6)(a),
nor is any provision made for his or her treatment as an outpatient.
[42]
Thus, a person must be detained in terms of
sub-para (ii) even when it is apparent –
(a)
that he or she does not have a ‘mental illness’, eg where
the user is intellectually disabled due to causes other
than mental
illness; or
(b)
he or she is not a danger to society or him- or herself; or
(c)
that his/her mental condition cannot be treated and that his or her
condition will not improve, as in the case of both Messrs
Stuurman
and Snyders
in casu
.
Not
arbitrarily and for just cause
[43]
It
is a fundamental principle of our law that when there is an
interference with physical liberty of a person, the party causing
the
interference bear ‘the burden to justify the deprivation
of liberty, whatever form it may have taken’, that
is, to
convince the court that the deprivation of liberty is not
arbitrary and for a just cause.
[31]
[44]
In
De
Lange v Smuts NO
,
[32]
the court held:
‘
The
substantive and the procedural aspects of the protection of freedom
are different, serve different purposes and have to be satisfied
conjunctively. The substantive aspect ensures that a deprivation
of liberty cannot take place without satisfactory or adequate
reasons
for doing so. In the first place it may not occur arbitrarily; there
must, in other words, be
a rational
connection between the deprivation and some objectively
determinable purpose
. If such rational
connection does not exist the substantive aspect of the protection of
freedom has by that fact alone been denied.
But even if such rational
connection exists, it is by itself insufficient; the purpose,
reason or cause for the deprivation
must be a just one.’
(Emphasis
added)
[45]
The focus of the enquiry accordingly shifts
to a consideration of the objectives or purposes advanced on behalf
of the respondents
in support of the deprivation of liberty of
persons in the positions of Mr Stuurman and Mr Snyders
in
casu
in order to determine whether the
respondents have discharged the burden resting on them of justifying
the deprivation of freedom
in terms of s 77(6)(a).
Respondents’
stance
[46]
The respondents denied that any of the
fundamental rights of the respective accused have been infringed or
threatened, as claimed
by the applicants. More particularly, with
regard to the right to freedom, they denied that the deprivation of
freedom authorised
by s 77(6)(a) is arbitrary or without just
cause.
According to them, t
he policies
underlying the impugned provisions give effect to legitimate
governmental objectives, which were identified
by the
respondents as being the following:
(a)
An accused person with a mental illness, who is found to have
committed a serious or violent act, poses a potential danger to
society. The community must accordingly be protected from such
persons and t
he State must fulfill its
obligation to provide safety and security for the people of South
Africa.
(b)
The DPP further contended that s 77(6)(a) is ‘designed
primarily to protect the interest of the accused person’
and
that it is necessary ‘to protect the mentally ill person from
danger to him/her, as well as the public from possible
danger from
the accused person’.
[47]
The objectives of detention, according to the respondents, are
thus two-fold: to protect the accused person from harm to himself
and
to members of the community.
Discussion
[48]
It
is universally recognised that persons of unsound mind may, in
suitable circumstances, be detained involuntarily.
[33]
This can be justified either on the grounds of the protection of
society or for the treatment of the individual patient, or both.
It
may be accepted, therefore, that
in
principle
detention of persons with mental defects serves a legitimate purpose.
[49]
It
is equally well-recognised, however, that not every person with a
mental illness or mental defect is a danger to society or requires
to
be detained in an institution. This is so because there are varying
degrees of mental illness and various types of mental disability,
and
institutionalisation is not invariably required or indeed
appropriate. And herein lies the rub, because s 77(6)(a)
does
not require, or even permit, the court to enquire into either the
potential danger to society posed by the accused person
or the
individual needs or circumstances of such person. Although medical
experts are required to assess the accused person’s
mental
capacity, they are not called upon to express any view as to whether
or not he or she constitutes a danger to society or
whether
involuntary hospitalisation is an appropriate or proportionate
treatment option.
[34]
Instead, s 77(6)(a) dictates a pre-determined and mandatory
outcome and deprives the presiding judicial officer of his
or her
judicial discretion to consider the specific facts of each case and,
in appropriate cases, to order the unconditional
release, or the
release of the person, subject to conditions as the court may
consider appropriate. As submitted on behalf
of the applicants, a
process that excludes material information cannot be fair as this is
contrary to notions of individualised
justice.
[50]
It
is precisely this absence of discretion in the court that formed the
cornerstone of the applicants’ attack against the
unconstitutionality of both sub-paras 77(6)(a)(i) and (ii). In
this regard, reliance was placed,
inter
alia
,
on the judgment of Ngcobo J, writing for the majority in
Director
Of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development
:
[35]
‘
The
importance of judicial discretion cannot be gainsaid. Discretion
permits judicial officers to take into account the need for
tailoring
their decisions to the unique facts and circumstances of particular
cases. There are many circumstances where the mechanical
application
of a rule may result in an injustice. What is required is
individualised justice, that is, justice which is appropriately
tailored to the needs of the individual case. It is only through
discretion that the goal of individualised justice can be achieved.
Individualised justice is essential to the proper administration of
justice. As Dean Pound pointed out some 50 years ago:
“
(I)n
no legal system, however minute and detailed its body of rules, is
justice administered wholly by rule and without any recourse
to the
will of the judge and his personal sense of what should be done to
achieve a just result in the case before him.”’
[51]
Moreover,
the absence of a judicial discretion in s 77(6)(a) is
accentuated when its provisions are compared with the
parallel
provisions of s 78(6): as discussed earlier, these two
sub-sections deal with similar situations and persons.
In fact,
both
sections are often applicable to the same individual. Thus, the panel
appointed in terms of s 79 in the case of Mr Snyders
found that
he is unable to follow the proceedings (as contemplated by
s 77(6)),
and
that he is also not criminally responsible, as contemplated by
s 78(6).
[36]
If his case
had to be dealt with under the latter section, detention would not
have been inevitable, because the court would have
had a range of
options available to it, as set out in sub-paras (aa) to (ee). But
because he is unable to follow the proceedings,
the court cannot
consider any of those alternatives and can only act in terms of the
first option by committing the accused to
be detained.
[52]
None
of the respondents have attempted to explain the incongruous
difference between ss 77(6) and 78(6) or to justify
the absence
of a similar judicial discretion in the former section as is
available in the case of the latter. I am unable to find
a rational
explanation for the difference and I regret to say that, unlike my
colleagues in
S
v Pedro, supra,
[37]
I do not find it ‘understandable’ that a person falling
within the ambit of s 77(6)(a)(i) should compulsorily
be subject
to an order of detention in accordance with s 47 of the MHCA. In my
view, such an order can give rise to an arbitrary
and irrational
result, thus amounting to an infringement of the accused’s
constitutional right to freedom and security
of the person.
Children
– s 28(1)(g) read with s 28(2)
[53]
CMH submitted that the provisions of
s 77(6)(a) are unconstitutional for a further reason,
namely because they infringe
the rights of children, as protected by
s 28(1)(g), read with s 28(2) of the Constitution. In terms
of s 28(1)(g),
every child has the right –
‘
not
to be detained except as a measure of last resort, in which case, in
addition to the rights a child enjoys under sections 12
and 35, the
child may be detained only for the shortest appropriate period of
time, and has the right to be –
(i)
kept separately from detained persons over the age of 18 years; and
(ii)
treated in a manner, and kept in conditions, that take account of the
child’s age.’
[54]
Section 28(2), of course, is the
general overarching provision which provides that ‘[a] child’s
best interests
are of paramount importance in every matter
concerning the child’.
[55]
These provisions are particularly relevant
in the case of Mr Stuurman, who was a 14-year-old child when he
allegedly committed the
act in question.
[56]
The constitutional provisions in s 28
have been given further statutory content in the form of the Child
Justice Act, 75 of
2008 (‘CJA’), which commenced on 1
April 2010. One of the aims of the CJA, according to the long title
thereof, is
‘to provide a mechanism for dealing with children
who lack criminal capacity outside the criminal justice system’.
[57]
The Act contains elaborate provisions,
inter alia
,
in respect of
preliminary inquiries to
be held prior to any trial (chapter 7) and for diversion of the
matter (chapter 8). The diversion
options set out in s 53 of the
CJA are available even in the case of children who are found to have
committed crimes that
fall within Schedule 2 to the CJA, which
includes murder, culpable homicide, rape and compelled rape. Through
s 53 of the
CJA, the legislature has afforded courts a wide
discretion to deal with child offenders in many different ways that
give effect
to the right in s 28(1)(g) of the Constitution to
resort to incarceration only as a means of last resort, and in so
doing
enable courts to give effect to the injunction in s 28(2)
to act at all times in the best interests of the child. The diversion
options include, by way of example –
(a)
compulsory attendance at a specified centre or place for a specified
vocational, educational or therapeutic purpose, which
may include a
period or periods of temporary residence;
[38]
(b)
referral to intensive therapy to treat or manage problems that have
been identified as a cause of the child coming into conflict
with the
law, which may include a period or periods of temporary
residence;
[39]
and
(c)
placement under the supervision of a probation officer on conditions
which may include restriction of the child’s movement
outside
the magisterial district in which the child usually resides without
the prior written approval of the probation officer.
[40]
[58]
However,
the CPA continues to apply to children except in so far as the CJA
‘provides for amended, additional or different
provisions or
procedures in respect of
that
person’.
[41]
[59]
Section 48(5)(b) of the CJA provides that
the preliminary inquiry that takes place prior to the hearing into
the charges against
a child accused may be postponed where ‘the
child has been referred for a decision relating to mental illness or
defect in
terms of ss 77 or 78 of the [CPA]’. The CJA is,
however, silent as to what happens in the event that the child in
question
is found to be unable to follow the proceedings or who
is found not to be criminally responsible. The result is that the
various
diversion options provided for in s 53 of the CJA for
child offenders cannot be invoked by the court and the provisions
of ss 77 or 78 of the CPA must be applied in all their rigour to
such a child. This is the pre-ordained result, irrespective
of the
child’s individual circumstances, even where there is
evidence available to the court that suggests that detention
would be
detrimental to his or her interests.
[60]
It is thus apparent that the legislature,
when promulgating the CJA, has failed to bring the provisions of
ss 77(6) of the
CPA into line with the more enlightened
provisions of the CJA. In the result, I am of the view that the
provisions of s 77(6)(a)(i)
and (ii) in their present form
unfairly discriminate against children with a mental illness or
mental defect when compared
to child offenders who do not suffer from
the same mental illness or defect and in respect of whom courts are
empowered to make
a variety of diversionary orders based on their
individual circumstances. Such discrimination occurs on the grounds
of their disability,
which is impermissible in terms of the
provisions of s 9(3) and (4) of the Constitution.
[61]
Section
77(6)(a) also impermissibly infringes the rights of children not to
be detained except as a measure of last resort, contrary
to
s 28(1)(g) of the Constitution. Moreover, the section flies in
the face of the remarks of Ngcobo J in
Director
Of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development
,
[42]
where he held:
‘
What
must be stressed here is that every child is unique and has his or
her own individual dignity, special needs and interests.
And a child
has a right to be treated with dignity and compassion. This means
that the child must “be treated in a caring
and sensitive
manner”. This requires “taking into account [the child’s]
personal situation, and immediate needs,
age, gender, disability and
level of maturity”. In short, “(e)very child should be
treated as an individual with his
or her own individual needs, wishes
and feelings”. Sensitivity requires the child’s
individual needs and views to be
taken into account.’
[62]
This infringement of the constitutional
rights of children, bad as it is, is aggravated by the fact (as
appears from the evidence
placed before the court by CMH) that both
prisons and psychiatric hospitals have inadequate facilities for
children. The results
of CMH’s survey accords with the
testimony of Professor Kaliski in Mr Stuurman’s criminal trial
where he conceded:
‘
We
don’t have a hospital for juveniles who are mentally
handicapped and out of control. We would like to have such places
but
we don’t. The only places we have got that can actually
accommodate someone like him would be something like a school
of
industries or a comparable sort of thing for juveniles. We don’t
actually have facilities.’
Limitation
[63]
The respondents, as a final fall-back
position, invoked the provisions of s 36(1) of the Constitution.
They
submitted that, to the extent that any
rights are infringed or threatened by the impugned provisions,
the
limitation of the fundamental rights as claimed by the
applicants is justifiable in an open and democratic society
based
on human dignity, equality and freedom, taking into account all
relevant factors.
[64]
To satisfy the limitation, it must be shown
that the law in question serves a constitutionally acceptable purpose
and
that
there is sufficient proportionality between the harm done by the law
(the infringement of fundamental rights) and the benefits
it is
designed to achieve (the purposes of the law).
[65]
In the case of children, the respondents
have not advanced any justification for the limitation of their
rights. As regards the
infringement of the s 12 rights, the
respondents have failed to persuade me of the proportionality
between the harm done
by the impugned provisions and the purpose
sought to be achieved. From what has been stated earlier, it is
apparent that there
are less restrictive means available to achieve
the purpose:
·
In the case of s 77(6)(a)(i), there is
no reason why the court should not have the same discretion enjoyed
by a court under
s 78(6)(i).
·
In the case of s 77(6)(a)(ii), there
is a less restrictive alternative before detaining a person as an
involuntary health care
user by utilising the provisions of s 32
of the MHCA.
·
In the case of children falling under the
impugned provisions, there is no reason why the provisions of s 53(4)
of the CJA
should not be available.
International
& foreign law
[66]
As mentioned earlier, I have been furnished
with extensive references to international and foreign law in order
to demonstrate what
type of measures are acceptable in other
open
and democratic societies. Although it is universally accepted that
persons of unsound mind may, in suitable
circumstances, be detained involuntarily, this is invariably done
with proper consideration
for the rights of the individual and the
circumstances of the case. As an example, the absence of a
judicial discretion in
those situations has been roundly condemned by
the Supreme Court of Canada, where Lamer CJ held in a similar
context:
‘
The
detention order is automatic, without any rational standard for
determining which individual insanity acquittees should be detained
and which should be released. . . . The duty of the
trial judge to detain is unqualified by any standards whatsoever.
I
cannot imagine a detention order on a more arbitrary basis.’
[43]
Conclusion
[67]
I conclude that s 77(6)(a), in
limiting or threatening the rights to freedom of the person and the
rights of children, cannot
be saved by the limitations clause.
In short, the respondents have failed to persuade me that the
deficiencies in s 77(6)(a)
as outlined above are reasonable and
justifiable in an open and democratic society. It is overbroad. An
accused person with a mental
disability may be detained for an
indefinite period in unwarranted circumstances. The impugned
provisions consequently
fall to be declared inconsistent with the
Constitution and invalid.
Remedy
[68]
It
follows that the applicants are, in the circumstances, entitled,
first of all, to a declaratory order to the effect that the
provisions of s 77(6)(a) are unconstitutional. It was common
cause, if this were to be the conclusion of the court, that it
would
be appropriate for this court to suspend the declaration of
invalidity for 24 months so as to afford Parliament an opportunity
to
correct the defect.
[44]
[69]
However,
if a mere suspension were to be ordered, the current unsatisfactory
and unconstitutional state of affairs would persist.
Messrs Stuurman
and Snyders, and many others in similar positions, might be unfairly
detained. Such persons are clearly entitled
to temporary
constitutional relief. The simplest and most appropriate
means of achieving this in the short term, as suggested
by counsel in
the
Snyders
matter, is for a reading-in so as to afford judicial officers dealing
with a s 77(6) situation during the period of suspension
a
discretion, similar in terms to those of a court confronted with an
accused person who is not guilty by reason of mental illness
or
intellectual disability under s 78(6)(i) and (ii) of the
CPA. The Constitutional Court has confirmed, in
Johncom
Media Investments Ltd v M & others
,
[45]
that such a temporary reading-in is permissible.
[70]
I wish to emphasise that the reading-in
which I propose is an interim measure and is not intended to be
prescriptive as to the remedial
steps that the legislature should
adopt in order to cure the unconstitutionality of the impugned
provisions. From the arguments
addressed to me by the parties it
appeared that the whole situation concerning persons with mental
illness or mental defects may
well require a more thorough overhaul
than the mere ‘cosmetic’ reading-in proposed by me.
However, it is neither necessary
nor desirable for me, as a judge of
first instance, to go further for purposes of this judgment.
Costs
[71]
It
was not seriously contested that, should the applications succeed,
the respondents would be liable jointly and severally for
the
applicants’ costs herein.
[46]
Such costs should include the costs of two counsel, where employed,
as well as the costs pursuant to the appointment of the
two
curators
ad litem
.
Order
[72]
For the reasons stated above, the following
order is issued:
(a)
It is declared that sub-paragraphs 77(6)(a)(i) and (ii) of the
Criminal Procedure Act, 1977
, are unconstitutional.
(b) The
declaration in para (a) above is not retrospective and its effect is
suspended for 24 months to afford the legislature an
opportunity to
cure the invalidity.
(c) During the
period of suspension,
section 77(6)(a)(i)
is deemed to read as
follows (words inserted by this order are underlined and words
omitted are deleted):
‘
(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
(aa)
detained in a psychiatric hospital or
prison pending the decision of a judge in chambers in terms of
section 47 of the Mental Health
Care Act, 2002;
(bb)
be admitted to and detained in an institution stated in the order and
treated as if he or she were an involuntary mental health
care user
contemplated in section 37 of the Mental Health Care Act, 2002;
(cc)
released subject to such conditions as the court considers
appropriate; or
(dd)
released unconditionally.’
(d) During the
period of suspension, sub-paragraph 77(6)(a)(ii) is deemed to read as
follows (words inserted by this order are underlined):
‘
(ii)
where the court finds that the accused has committed an offence other
than one contemplated in subparagraph (i) or
that he or she
has not committed any offence –
(aa)
be admitted to and detained in an institution stated in the order as
if he or she were an involuntary mental health care user
contemplated in
section 37
of the
Mental Health Care Act,
2002
;
(bb)
released subject to such conditions as the court considers
appropriate; or
(cc)
released unconditionally.’
(e)
The prosecutions against Mr Llewellyn Stuurman and Mr Pieter Snyders
are stayed pending confirmation of this order by the Constitutional
Court.
(f)
The respondents are ordered jointly and severally to pay the
applicants’ costs,
including
the costs of two counsel, where
employed, and the costs of the curators
ad
litem
.
B
M Griesel
Judge
of the High Court
[1]
The
relevant portions of the sub-section are quoted in full in para [9]
below.
[2]
Du
Toit
et
al, Commentary on the
Criminal Procedure Act
>
,
13–1 (Service 51, 2013).
[3]
Section
77(1).
[4]
Albert
Kruger
Hiemstra’s
Criminal Procedure
(Service
7, May 2014) at 13-3. See also
S
v Mabena
2007 (1) SACR 482
(SCA) para 12.
[5]
Sections
77(2)
and
78
(3).
[6]
Sections 77(3)
and
78
(4).
[7]
For
the sake of brevity, these offences will collectively be referred to
hereafter as ‘the listed offences’.
[8]
Section
47(1) of the MHCA Act provides for an application to a Judge in
Chambers for the discharge of the State patient and reads:
‘Any
of the following persons may apply to a Judge in Chambers for the
discharge of a State Patient’ and then enumerates
the various
persons, including the State Patient, who may do so.
[9]
Section
37 of the MHCA provides for the periodic review, annual reports and
discharge of involuntary mental health care users.
In terms of
s 37(3) to (6) it is the Health Review Board that can discharge the
involuntary mental health care user.
[10]
2005
(1) SACR 311
(W). See also the thorough analysis of the section by
Rogers J (Binns-Ward J concurring) in
S
v Pedro
[2014] ZAWCHC 106
paras 83 104.
[11]
At
313
g h
.
[12]
At
314
h–
315
g
.
[13]
At
315
h–i
.
[14]
See
also A Kruger
Mental
Health
17(2)
Lawsa
(2ed) para 256 for a synopsis of the subsection.
[15]
Peter
Snyders v The State
(High
Court Case No 13656, 16 September 2013).
[16]
[1997] ZACC 3
;
1997
(2) SA 898
(CC) para 23.
[17]
2000
(2) SA 1
(CC) para 21.
[18]
2004
(4) SA 125 (CC).
[19]
2009
(4) SA 222 (CC).
[20]
Emphasis
added.
[21]
Abahlali
baseMjondolo Movement SA v Premier of the Province of Kwazulu-Natal
2010 (2) BCLR 99
(CC) para 13.
[22]
A
similar approach was followed by the Namibian Supreme Court in
Alexander
v Minister of Justice
[2010] NASC 2
;
2010 (1) NR 328
(SC) para 70.
[23]
Cf
Richter
v Minister of Home
Affairs
2009 (3) SA 615
(CC) paras 40 and 41. See also
Geuking
v President of the RSA
2003
(3) SA 34
(CC) at para 33.
[24]
1996
(1) SA 984
(CC) para 26.
[25]
Per
Chaskalson P in para 158.
[26]
Para
199.
[27]
Ex
parte G & Sixty-six others
2009
[JOL] 22950 (KZN) para 19 (per Levinsohn DJP and Van der Reyden J).
[28]
Elsje Bonthuys ‘Involuntary Civil Commitment and the new
Mental Health Bill’
(2001) 118
SALJ
667
at 671.
[29]
See
also
Malachi
v Cape Dance Academy International
2010
(6) SA 1
(CC) para 28.
[30]
For
an in-depth discussion of these terms, see Woolman et al
Constitutional
Law of South Africa
(2ed, Original Service: 07-06) Vol 3 para 40.3.
[31]
Zealand
v Minister for Justice and Constitutional Development
[2008] ZACC 3
;
2008
(4) SA 458
(CC) paras 24 25.
[32]
1998
(3) SA 785 (CC)
para 23.
[33]
This
appears conclusively from the wealth of international and foreign
law to which the parties have referred in their heads of
argument.
[34]
The
panel in the case of Mr Snyders have nonetheless
mero
motu
expressed
concern at the potential harm faced by him as a result of an
inappropriate order, as noted earlier. See para [22]
above.
[35]
2009
(4) SA 222
(CC) para 120.
[36]
This
was also the position in the case of
Sithole,
supra
.
[37]
Fn
10
above
at para 98 of the judgment.
[38]
Section
53(3)(k).
[39]
Section
53(4)(c).
[40]
Section
53(4)(d).
[41]
Section
4(3)(a).
[42]
2009
(4) SA 222
(CC) para 123 (footnotes omitted).
[43]
R
v Swain
[1991] 1 SCR 933.
[44]
Estate
Agency Affairs Board v Auction Alliance
2014 (3) SA 106
(CC) paras 55–61. See also the
discussion by Rogers J in
Gaertner
v Minister of Finance
2013
(4) SA 87
(WCC) at paras 112–116.
[45]
2009
(4) SA 7
(CC) para 40. See also
Gaertner
v Minister of Finance
2013 (4) SA 87
(WCC) para 116.
[46]
See
eg
Biowatch
Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC) para 23;
Malachi
v Cape Dance Academy International
2011 (3) BCLR 276
(CC) para 8.