De Vos NO and another v Minister of Justice and Constitutional Development [2014] 4 All SA 374 (WCC)

OVERVIEW

The question the court dealt with was whether the operation of section 77(6) of the Criminal Procedure Act 51 of 1977 unjustifiably limited or threatened the rights to freedom of persons and the rights of children.

Furthermore, whether the lack of judicial discretion in the application of both subparagraphs 77(6)(a)(i) and (ii) was unconstitutional.

 FACTS

The cases of Mr Llewellyn Stuurman and Mr Pieter Snyders were consolidated and heard together because of the similarities between the relief claimed as well as the legal principles the claims we based. Both were men suffered from mental disabilities and were facing charges of murder and rape respectively. They were represented by their mothers as court appointed curators' ad litem.

Stuurman

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 the trial in the regional court in Oudtshoorn, he was referred by the court for observation in terms of sections 77(1), 78(2) and 79(2) of the CPA.

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. 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

Mr Pieter Snyders was born with Down syndrome and as a result he had cognitive deficits. In 2013, Mr Snyders was arrested and charged with the rape of an 11 year old girl. According to the complainant, the rape happened five to six years earlier.

When he appeared at the Blue Down's Magistrate's Court, he was referred in terms of section 77(1) of the Act to an enquiry in order to determine his capacity to understand the proceedings.

The enquiry found 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 section 79(4)(c), he was found to be unfit to stand trial and in terms of section 79(4)(d), he was found to be "not able to appreciate the wrongfulness of the alleged offence and act accordingly". It was found that Mr Snyders would not be able to stand trial as his cognition would never improve.

The magistrate ordered in terms of section 77(6)(a)(i) that he be detained in a psychiatric hospital or prison pending the decision of a judge in terms of section 47 of the Mental Health Care Act. The matter was reviewed because the magistrate failed to enquire if 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. The High Court set aside the order, sent is back to the Magistrates Court.

Present case

In the present case, both Stuurman and Snyders argued for an order declaring section 77(6)(a) of the criminal procedure Act 51 of 1977 unconstitutional. Stuurman focused on section 77(6)(a)(i) while Snyders attacked both sub-paragraphs 77(6)(a)(i) and 77(6)(a)(ii).

The Minister of Justice and Constitutional Development, the Minister of Health and the Director of Public Prosecutions, Western Cape all opposed this application. Cape Mental Health and Down Syndrome South Africa joined the application for the most part favouring the application and the relief claimed.

PRECEDENT

The court found that section 77(6)(a) did not permit a presiding officer to (a) determine whether an accused person continued to be a danger to society, (b) evaluate the individual needs or circumstances of that person, or (c) consider whether other options were more appropriate in the light of the individual circumstances of the accused.

Section 77(6)(a) is overbroad. It limits or threatens the rights of persons to freedom and the rights of children. The limitations are not justifiable in terms of the limitations clause, are inconsistent with the Constitutions and are therefore invalid. The declaration was referred to the Constitutional Court for confirmation. Constitution Court case summary

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