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[2014] ZAWCHC 155
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S v Vika (14519) [2014] ZAWCHC 155 (14 October 2014)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Ref No: 14519
Khayelitsha
Case No: RCA 151/10
In
the matter between:
STATE
And
SINTHEMBA
VIKA
Per:
BINNS-WARD & ROGERS JJ
Delivered:
14 OCTOBER 2014
JUDGMENT
ROGERS
J:
[1]
This matter was referred to the High Court
by the Regional Magistrate, Khayelitsha, following queries raised by
the Office of the
Director of Public Prosecutions Cape Town (‘DPP’)
as to the procedure followed by the presiding magistrate pursuant
to
ss 77
to
79
of the
Criminal Procedure Act 51 of 1977
.
[2]
On 26 May 2014 I notified the magistrate
and the DPP that the matter would be held in abeyance pending
delivery of this court’s
judgment in the matter of
S
v Pedro
, a similar review which had
been referred to open court for argument. Judgment in
Pedro
was handed down on 9 July 2014 ([2014]
ZAWCHC 106).
[3]
On 23 July 2014 I invited the DPP’s
comments on various matters. Those comments have now been received.
[4]
The record in this matter reflects the
following. The accused was charged with having raped a woman with the
penis (Part III of
Schedule 2 of Act 105 of 1997). The rape was
allegedly committed on 2 May 2010. The accused was released on bail.
[5]
On 6 July 2011 the defence attorney
requested that the accused ‘be sent to a District Surgeon for
psychiatric examination’.
No order appears to have been made at
that stage. The magistrate’s note indicates that on 5 August
2011 the accused was remanded
on warning pending availability of a
bed at Valkenberg Hospital (‘VBH’).
[6]
On 9 September 2011 the accused was not in
attendance but his attorney was. The magistrate’s note states
that the accused
was to be referred to VBH in terms of
ss 77
-
79
of the
Criminal Procedure Act and
that he was ‘to be examined
by three psychiatrists’. There were a number of remands
thereafter while a bed at VBH was
awaited.
[7]
By 6 August 2012 a bed was available at
VBH. The magistrate’s note of the appearance on that date
stated that in terms of
ss 77
-
79
the accused was transferred to
VBH for observation.
[8]
On 12 October 2012 the accused was absent
but his attorney was again present. The prosecutor stated that the
report of the psychiatrists
was available, though it was apparently
not handed in at that stage. The accused was said to be ‘not
ready to stand trial’
(presumably meaning not fit to stand
trial). The prosecutor stated that there needed to be an enquiry and
that the accused would
be detained ‘depending on the evidence’.
The defence attorney said that he had no instructions.
[9]
After several further postponements the
matter served before the magistrate again on 13 May 2013. The accused
was legally represented.
The prosecutor informed the magistrate that
the matter was on the roll ‘for an enquiry into the mental
capacity of the accused’.
The recorded hearing does not
indicate that the psychiatric report was handed in though it appears
from the magistrate’s
letters of 10 March 2014 that he had
received it. There was no discussion in open court regarding the
report. Instead, the magistrate,
after the announcement of the
appearances, called the accused and asked him certain questions,
apparently directed at ascertaining
his mental capacity and ability
to follow proceedings. The answers indicate that the accused was
delusional.
[10]
After the magistrate had completed his
questions and after the prosecutor indicated that she did not wish to
ask any questions,
the magistrate made the following ruling:
‘
The
accused is released on condition that he stays with his parents and
submits to therapy, and takes medication as prescribed by
that
doctor. It is
section 78(6)(b)(i)(dd).
Okay, you can go home. He must
take his medication every day, it must always be with you at home.’
[11]
The psychiatric report is dated 8 October
2012. It is signed by Dr M Roffey (‘Specialist Psychiatrist for
Hospital CEO’),
Prof S Kaliski (‘Specialist
Psychiatrist’) and Ms T Swart (‘Clinical Psychologist’).
The conclusion of
the panel was that the accused was suffering from
dementia and personality changes secondary to a head injury. He was
not fit to
stand trial nor was he able, at the time of the alleged
offence, to appreciate the wrongfulness of his conduct and act
accordingly.
The panel recommended that, if the court confirmed the
accused’s role in the alleged offence, the fairest course for
the
accused and for the safety of the community would be to send him
to VBH as a State patient.
[12]
In a letter to the Chief Magistrate dated
23 December 2013, the office of the DPP raised several queries
regarding the procedure
followed by the magistrate. The Regional
Magistrate responded in letters dated 10 March 2014 addressed to the
DPP and to the Registrar
of this court.
[13]
It is apparent, having regard to the
judgment in
Pedro
,
that there were a number of material irregularities in this case.
[14]
Firstly, the magistrate ordered the accused
to be examined by three psychiatrists whereas he was examined by two
psychiatrists and
a clinical psychologist.
[15]
Second, no private psychiatrist (as that
term is explained in
Pedro
)
was appointed nor does there appear to have been any request by the
prosecutor to dispense with the appointment of a private
psychiatrist.
[16]
Third, it does not appear from the record
that the court identified the psychiatrist to be appointed for the
accused or the clinical
psychologist. (The J138 form, which is used
to authorise detention for psychiatric observation, was not in the
review record. However,
two J138 forms were attached to the DPP’s
response to this court’s queries. The one, dated 6 August 2012,
which seems
to have been signed by someone other than the magistrate
who presided at the proceedings, stated that the accused was to be
examined
by three persons, namely by the medical superintendent of
VBH, by Dr Kaliski of VBH and by Dr Roffey (erroneously described as
being in private practice). The other form, which is dated 6
September 2012 but unsigned, stated that the accused was to be
examined
by the medical superintendent of VBH, by Dr Kaliski as a
private psychiatrist (Dr Kaliski is in truth in the full-time employ
of
the State) and by Dr Roffey as the psychiatrist for the accused.)
[17]
Fourth, the proceedings in open court did
not deal at all with the psychiatric report. It appears from the
magistrate’s letter
to the Registrar dated 10 March 2014 that
the psychiatric report was received and discussed in chambers. The
magistrate says that
he ‘conducted an informal enquiry’
with the accused’s mother. She reported that he was a quiet and
humble person
but that problems arose when he did not take his
medication. It was thereafter that the matter was called in court and
the accused
was questioned by the magistrate.
[18]
Fifth, on the assumption that both the
prosecutor and the defence attorney accepted the psychiatric report
(and this might be a
reasonable inference), the accused should have
been found unfit to stand trial in terms of
s 77.
His case
should not have been dealt with in terms of
s 78.
To the extent
that the magistrate’s ruling, with its reference to
s 78(6)
,
implied a verdict of not guilty, this was impermissible as the
accused had not been asked to plead and was not fit to stand trial.
[19]
Sixth, there was no information or evidence
before the court as to whether or not the accused had committed the
actus reus
element
of rape or of any other offence. Such an enquiry would have been
necessary before the appropriate order could be made in
terms of
s 77(6)(a).
[20]
Despite the irregularities in the procedure
followed by the magistrate in appointing the psychiatric panel, I am
not inclined at
this stage to set aside the proceedings by which the
panel was appointed. The accused was examined by two psychiatrists
and a clinical
psychologist. They were unanimous in their assessment.
It is not apparent that any injustice was suffered by the accused in
consequence
of the irregularities. One knows that it can take many
months before an accused person can be committed to a psychiatric
facility
for observation in terms of
s 77.
I would be reluctant,
in the absence of obvious prejudice, to require the entire process of
psychiatric observation to commence
afresh.
[21]
However, the procedure followed by the
magistrate upon receipt of the psychiatric report cannot be allowed
to stand. Upon finding
that the accused was mentally unfit to stand
trial, the magistrate should have acted in accordance with
s 77(6)(a)
, not
s 78(6).
And importantly, before he could
make a direction in accordance with
s 77(6)(a)
, the magistrate
was required to determine whether, on a balance of probabilities, the
accused committed the alleged act of sexual
penetration.
[22]
It would not be right for this court to
prescribe the procedure to be followed by a magistrate pursuant to
s 77(6)(a)
in determining whether, on a balance of
probabilities, the accused committed the relevant act. Depending on
the circumstances,
it may be permissible for the magistrate to act on
the basis of written statements contained in the docket. In other
circumstances,
the magistrate may consider it necessary to satisfy
himself by evidence from one or more of those witnesses and/or from
the investigating
officer.
[23]
Of course, before a magistrate can proceed
in terms of
s 77(6)(a)
, he or she must first determine whether
the accused is in truth mentally unfit to stand trial. In the present
case, and because
the psychiatric report was unanimous, the
magistrate was entitled to make such a finding without further
evidence regarding the
accused’s mental condition, provided the
psychiatric report was not disputed either by the prosecutor or by
the accused.
I have pointed out that this aspect was not dealt with
satisfactorily in the court
a quo
.
There is no clear statement on the record that the accused’s
legal representative accepted the psychiatric report; that
is a
matter of inference.
[24]
This matter will inevitably need to be
remitted to the magistrate, at least for purposes of enquiry and
direction in accordance
with
s 77(6)(a).
More than two years
have already elapsed since the psychiatric panel made its report. An
accused person who is mentally unfit to
stand trial at an earlier
time may become fit to stand trial at a later time and will then be
entitled and obliged to plead to
the charge and to have his guilt or
innocence determined in the usual way. The psychiatric assessment in
the present case probably
does not hold out much hope for the
accused’s mental recovery. Nevertheless, and in view of the
lapse of time, I think the
remitted proceedings should include the
question whether the psychiatric report of 8 October 2012 is accepted
by the prosecutor
and by the accused’s legal representative. In
other words, the court
a quo
will, when it resumes proceedings, be in the same position as it was
when it convened after receipt of the psychiatric report.
The
prosecutor and the accused’s legal representative may wish to
make their own enquiries as to the accused’s current
mental
condition. If there is reason to think his condition has improved,
the prosecutor or the accused’s legal representative
may wish
to dispute that the psychiatric assessment is now correct (even
though it may have been correct in October 2012). There
would then
need to be evidence concerning the accused’s current mental
fitness to stand trial.
[25]
If, pursuant to the remitted proceedings,
the accused is found mentally unfit to stand trial and if the court
a
quo
is satisfied that the accused
committed the alleged act of sexual penetration, the further question
will arise as to the appropriate
order to be made pursuant to
s 77(6)(a).
On that section’s current wording the accused
would, in the posited circumstances, have to be detained as a State
patient
in terms if
s 77(6)(a)(i).
However, this
non-discretionary detention regime was found to be constitutionally
invalid in the recent judgment of this court
De
Vos NO & Another v Minister of Justice and Constitutional
Development & Others; in re Snyders & Another v Minister
of
Justice and Constitutional Development & Others
[2014]
ZAWCHC 135.
The finding of constitutional invalidity and resultant
reading-in contained in this court’s order will only take
effect if
confirmed by the Constitutional Court. If the present case
resumes in the court
a quo
before
the Constitutional Court has delivered judgment, the magistrate will
need to consider and hear the parties on the question
as to the
appropriate course to follow pending the Constitutional Court’s
decision. It would not be appropriate in this judgment
to dictate
what should be done, given that we have not heard submissions on the
point.
[26]
I would thus make the following order:
(a) The proceedings
in the court
a quo
on 13 May 2013 are reviewed and set aside.
(b) The matter is
remitted to the court
a quo
to determine, in accordance with
ss 77(2)
to
77
(5) of the
Criminal Procedure Act 51 of 1977
,
whether the accused is or is not capable of understanding the
proceedings by reason of mental illness or mental defect. For that
purpose, the court
a quo
will be entitled to receive and act
upon the psychiatric report of 8 October 2012, save that the
prosecutor and/or the accused will
be entitled to dispute the finding
of that report, in which event the court must proceed in accordance
with
s 77(3).
(c) If the court
a
quo
determines that the accused is not capable of understanding
the proceedings, that court must determine, in accordance with
s 77(6)(a)
, whether the accused on a balance of probabilities
committed the act forming the subject of the charge against him and
must make
the appropriate direction in accordance with
s 77(6)(a)(i)
or (ii), subject to any submissions by the parties arising from the
finding of constitutional invalidity in
De Vos & Another v
Minister of Justice and Constitutional Development & Others; In
re Snyders & Another v Minister of
Justice and Constitutional
Development & Others
[2014] ZAWCHC 135.
BINNS-WARD
J:
[27]
I concur and it is so ordered.
____________________
BINNS-WARD
J
______________________
ROGERS
J