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.
HIGH COURT summary
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.
IN
THE CONSTITUTIONAL COURT
In
Constitutional Court declined to confirm the High Court order. The court found
section 77(6)(a)(i) inconsistent with the Constitution and invalid to the
extent that it provided for compulsory imprisonment of accused persons and
compulsory hospitalisation of children. It allowed the presiding officer no
discretion to deal with the child appropriately.
There
was no appropriate procedural safeguard accompanying the deprivation of freedom
mandated by section 77(6)(a)(ii), under which a person was more readily
institutionalised without the ordinary safeguards prescribed by the Mental
Health Care Act. The effect of this provision was an arbitrary deprivation of
freedom.
PRECEDENT
The
Court made an order declaring section 77(6)(a)(i) and 77(6)(a)(ii) to be
inconsistent with the Constitution and invalid to the extent that it provides
for compulsory imprisonment of an adult accused person and compulsory
hospitalisation or imprisonment of children.
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