The constitutionality of Chapter 13 of the Criminal Procedure Act 51 of 1977

• Jurisdiction: South Africa
• Author: Marozane Spamers
• Published date: 24 May 2019
• Date: 24 May 2019
• Pages: 339-362
• Citation: (2017) 30 SACJ 339

The constitutionality of Chapter 13

of the Criminal Procedure Act

51 of 1977

MAROZANE SPAMERS*

ABSTRACT

This art icle critically ana lyses the provisions of Chapter 13 of the Cr iminal

Procedure Act 51 of 1977 (namely ss 76, 77, and 78), and the provisions

regarding state patients cont ained in the Menta l Health Care Act 17 of

2002. These sec tions regulate matte rs pertain ing to the crimi nal capacity

of mentally disordered acc used persons at the ti me of the trial, the ti me

of the commission of the of fence, as well as the panel for purposes of

forensic enquiry and repor t. Recent court case s and relevant constitutional

provisions are discuss ed in order to determine t he constitutional ity and

internal logical con sistency of the provisions, and to an swer the question

as to whether the aims of the leg islator are being met by the status quo.

Ultimately the ar ticle makes suggestions regarding reform of the sect ions in

question to ensure compliance wit h the Bill of Right s.

1 Introduction

Chapter 13 of the Criminal Pro cedure Act 51 of 1977 (the ‘CPA’), which

regulates mental health in the cr iminal just ice system in ss 77, 78

and 79, in tandem with the Mental Health Care Act 17 of 2002 (the

‘MHCA’), has featured prominently in the courts in recent years.1 The

introduction of the Crim inal Procedure Amendment Act 4 of 2017

prompts critical discussion of whether t he legislator has succeeded

in addressing the concerns raised by the cour ts in Mape y, Pedro, De

Vos, and You ng;2 and whether the provisions of the CPA and MHCA

relevant to mentally incapacitated accused persons and state patients

* LLB LLM (Preto ria) MPhil (Cambridge) LLD (Pr etoria).

1 S v Mapey [2007] JOL 19909 (C); De Vos NO v Minister of Jus tice and Constitutional

Development; In re Snyde rs v Minister of Justice an d Constitutional D evelopment

[2014] 4 All SA 374 (WCC); De Vos NO v Minister of Justice and Constituti onal

Development 2015 (9) BCLR 1026 (CC); De Vos NO v Minister of Justice and

Constitutional Devel opment (Cape Mental Health, amicus curiae) [2016] JOL 33412

(CC); In Re: Young [2015] JOL 32909 (KZP); S v Pedro [2014] 4 All SA 114 (WCC);

S v Pistorius (CC113/2013) [2014] ZAGPPCH 793 (12 September 2014); Director of

Public Prosecutio ns, Gauteng v Pistorius (96/2 015) [2015] ZASCA 204 (3 D ecember

2015 ).

2 Ibid.

339

(2017) 30 SACJ 339

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are clear and coherent while respecting the right s of mentally ill

offenders in accordance with the Bill of R ights.3 This article considers

legislative provisions, theory and case law regarding the capacit y of

accused persons to understand tr ial proceedings, the effect of mental

disorder on crimin al capacity, and the regime relating to state patients

in terms of the MHCA .

2 Capacity of accused to understand proceedings

The rst issue touched upon regarding the rights of ment ally

disordered persons in cri minal law, is that the trial must ta ke place

in the presence of the accused for a person’s right to a fair trial to be

respected.4 The presence at the trial i ncludes both physical presence,

and a psychological element which requires that the accused must

have the required mental capacity to understand a nd follow the trial,

in other words the person must be tri able.5 An accused is unt to

stand trial if t hey are incapable of understanding court proceed ings,

and conducting a proper defence and this could be due to physical

causes, or mental illness or defect.6 Not all menta l disorders lead to

incapacity to stand trial, but exa mples of disorders that could lead to

such a nding include organic mental ill ness, psychotic disorders, and

delusional disorders, among others.7

Section 77 of the CPA determines that only pe rsons who are capable

of understanding the nature of t rial proceedings or conducting a

proper defence can be tried and states the procedure for inquir y.

Section 77(1) of the CPA8 determines that if it appears to the cour t at

any stage of the crimin al proceedings that the accused is by reason of

mental illness or intellect ual disability not capable of underst anding

the proceedings so as to make a proper defence, the court shall di rect

that the matter be enquired i nto and be reported on in accordance

3 Excellent sources for fu rther reading on c rimina l law with regard to menta l health

include: JM Burchell So uth African Criminal Law and Pro cedure Volume I: General

Principles of Cr iminal Law 4ed (2011); A Kruger Hiemstr a’s Criminal Procedure

(2008); CR Snyman Strafreg 5ed (20 06); FW W Van Oosten ‘Non-pathologica l

crimina l incapacity versus pathological cri minal incapacity’ (1993) 6 SACJ 12 7.

4 Section 158 of the Crim inal Procedure Ac t 51 of 1977; s 35 of the Constitution;

GP Stevens T he Role of Exp ert Eviden ce in Support of the Defe nce of Criminal

Incapacity LLD (Pretoria) (2011) 442.

5 F Cassim ‘The acc used person’s competency to stand t rial: a comparative perspe ctive’

(2004) 45 Codicillus 17; Stevens op cit (n4) 442.

6 Stevens op cit (n4) 443.

7 H Oosthuizen and T Verschoo r ‘Faktore wat ‘n invloed op die verhoorba arheid van

‘n beskuldigde kan hê’ (1991) 16 TRW 138 at 143; Stevens op cit (n4) 444.

8 As amended by s 1 of the Cr iminal Procedure Amendment Ac t 4 of 2017.

340 SACJ . (2017) 3

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