S v Thupa
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Langa J |
| Judgment Date | 23 August 2023 |
| Citation | 2023 JDR 3175 (MN) |
| Hearing Date | 23 August 2023 |
| Docket Number | 07/2023 |
Langa J:
Background and facts
This is a special review in terms of section 304A of the Criminal Procedure Act 51 of 1977, as amended, (“the CPA”). The review was laid before court by Magistrate JJ Combrinck in respect of a “decision and order” of his erstwhile colleague Ms Greyvenstein (Ms Greyvenstein) who has since reportedly resigned as a magistrate.
2023 JDR 3175 p2
Langa J
The accused Mr Thupa had been charged with the murder of a 4-year-old girl allegedly committed on 12 December 2021 in Emalahleni. During the course of the proceedings it was alleged that the accused might not be fit to stand trial, or alternatively, that he lacked the criminal responsibility at the time of the commission of the alleged crime due to mental illness. Consequently, the court (Ms Greyvenstein) referred the accused for mental observation for a period of thirty (30) days in terms of sections 77 (1) and 78 (2) of the CPA for the matter to be enquired into and be reported on in accordance with the provisions of section 79 of the CPA.
Pursuant this court order, the panel of psychiatrists, Dr E Weiss and Dr MP Pitjeng, after apparently examining and observing the accused made the following diagnosis: Transient Visual Hallucination of most possibly organic origin. They consequently concluded as follows in bullet point form:
That the accused was not fit to stand trial;
He will be able to follow the proceedings
He will not be able to give a full account of the time of the alleged offence
He will therefore not be able to instruct his attorney
The further concluded that he did not have the necessary capacity to appreciate the wrongfulness of his actions at the time of the alleged offence and further that his ability to act was therefore impaired by mental defect. Lastly they recommended that he “be declared a State Patient for accommodation in correctional Services until a bed in Weskoppies can be obtained. His physical and mental health will be monitored in custody and the psychiatrist will follow him up.”
2023 JDR 3175 p3
Langa J
However, when the matter came before the court a quo on 27 July 2022 the court made an order, ostensibly in terms of section 77 (6) (a) (ii) (aa) of the CPA to the effect that the accused be detained in a psychiatric hospital. This in fact was the order which had been advocated for by the Director of Prosecutions as appears from the communications with the local prosecutor. The court, however, discovered that there was apparently no psychiatric hospital available to admit the accused in line with such an order. The Magistrate apparently also decided that she could not make an order in terms of section 77 (6) (a) (i) (dd) of the CPA for the accused to be detained in a correctional facility as the State and the defence were of the opinion that the accused did not pose a threat to the community and that he should therefore be released pending the availability of a hospital to admit him. The accused was accordingly released in terms of section 77 (6) (a) (i) (dd) of the CPA and an order was made that he shall surrender himself to the authorities when called upon to do so as soon as his admission in a psychiatric hospital is possible. When a hospital space became available the accused was brought before court in order to be dealt with in terms of the purported order previously made by Ms Greyvenstein for him to be detained in a psychiatric hospital pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002.
The issues
After considering the facts of the matter and the process followed, the current presiding Magistrate, Mr JJ Combrinck, was of the view that it was not correctly established that the grounds existed anchoring the finding that the accused is not fit to stand trial and further that he lacked the necessary criminal capacity for his actions. He formulated a view that the findings made by the psychiatrists were, in his
2023 JDR 3175 p4
Langa J
opinion, incorrect and not based on the facts. He asserts further that the panel did not make any defined mental diagnosis as required but speculated about the possible causes of the accused’s illogical conduct.
Furthermore, Mr Combrinck seems to be of the view that the accused was not properly observed and evaluated by the panel as he was seen and interviewed only on two days, on 9 February 2022 and 9 March 2022. He is of the view that the proceedings were not in accord with justice based on the evaluation only.
Applicable legal provisions
The applicable statutory provisions are section 77, 78 and 79 of the CPA. I will not deal in-depth with these provisions as I am of the view that it is unnecessary given my findings which I deal with in the ensuing paragraphs. However, it is necessary to state...
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