In re JY

• Jurisdiction: South Africa

In re JY
2016 (1) SACR 399 (KZP)

2016 (1) SACR p399

Citation	2016 (1) SACR 399 (KZP)
Case No	1801/15
Court	KwaZulu-Natal Division, Pietermaritzburg
Judge	K Pillay J and Maharaj AJ
Heard	March 3, 2015
Judgment	March 3, 2015
Counsel	Information not supplied

Flynote : Sleutelwoorde

Mental health — Involuntary healthcare user — Interaction between Mental Health Care Act 17 of 2002 and s 77(6)(a)(ii) of Criminal Procedure Act 51 of 1977 — Provisions of former cannot be dispensed with or superseded by latter.

Headnote : Kopnota

The provisions of the Mental Health Care Act 17 of 2002 (the MHCA) cannot be C dispensed with or superseded by the provisions of s 77(6)(a)(ii) of the Criminal Procedure Act 51 of 1977 (CPA). They work in conjunction with each other while serving different purposes, namely:

•

The detention of persons under s 37 of the MHCA caters for cases where persons are not criminally charged for any offences, whereas s 77(6)(a)(ii) D of the CPA provides for the referral of accused persons who are charged for offences and are found unfit to stand trial.

•

Where an institution is not specified in the court order referring a person in terms of s 77(6)(a)(ii) of the CPA, the chairperson of the mental-health review board would be at liberty to select an institution which would be in the best interest of the mental-healthcare user, without reverting to the court. E

•

Where the mental-health review board finds that the person referred does not require involuntary care, treatment and rehabilitation, an application should be made to the High Court for the release of such person.

•

Where the referral is done in terms of s 77(6)(a)(ii), and the mental-health reports pursuant to the provisions of ss 79(3) and (4) of the CPA are F done, such reports must be sent to the mental-healthcare practitioners of the institution specified in the referral in terms of s 77(6)(a)(ii) of the CPA. (Paragraph [25] at 403f–i.)

Cases cited

Qozeleni v Minister of Law and Order and Another 1994 (2) SACR 340 (E) (1994 (3) SA 625; 1994 (1) BCLR 75): dictum at 353c – g applied G

S v Mogorosi 1979 (2) SA 938 (A): referred to

S v Stellmacher 1983 (2) SA 181 (SWA): referred to

S v Skeyi 1981 (4) SA 191 (E): referred to. H

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 77(6)(a)(ii): see Juta's Statutes of South Africa 2014/15 vol 1 at 2-358

The Mental Health Care Act 17 of 2002, s 37: see Juta's Statutes of South Africa 2014/15 vol 5 at 2-302 to 2-303. I

Case Information

Review of an order that the accused be detained in terms of s 77(6)(a)(ii) of the CPA, as if he were an involuntary mental-healthcare user contemplated in terms of s 33 of the Mental Health Care Act 17 of 2002. Order set aside and replaced by one in terms of s 34(7)(c) of the Mental Health Care Act 17 of 2002 (see paras [26]-[27]. J

2016 (1) SACR p400

Judgment

Maharaj AJ (K Pillay J concurring): A

Introduction

[1] The abovementioned matter was sent to the High Court by PS Gebashe, B the chairperson of the Unthungulu Mental Health Review Board, for consideration and an order by this court in terms of s 34(7)(c) of the Mental Health Care Act 17 of 2002 (the MHCA).

[2] Save for the typographical errors on pp 3 – 4 of the application relating to the date of 14 January 2014, which should read 14 January 2015 and C 17 January 2015, respectively, the application is well motivated and was of great assistance in writing this judgment. I am indebted to PS Gebashe for the effort.

[3] At the outset I wish to emphasise that this matter is not before me as a review in terms of s 304 or 304A of the Criminal Procedure Act 51 of 1977 D (the CPA). 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) is not a sentence as contemplated in s 302(1)(a).

[4] This does not mean that the High Court does not have jurisdiction E 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 thelower court may be brought under review in the High Court if there is 'gross irregularity in the proceedings'. An error of law might in some instances or circumstances amount to a gross irregularity (see Qozeleni v Minister of Law and Order and Another 1994 (2) SACR 340 (E) (1994 (3) SA 625; F 1994 (1) BCLR 75) at 353c – g).

[5] The High Court also has inherent powers to review proceedings of the lower courts on the basis of the constitutional principle of legality. In this instance, in the interest of justice, a less formal process is followed G or condoned where the review board has already sent the matter to the High Court for direction.

The issues

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