De Vos N.O and Another v Minister of Justice And Constitutional Development and Others; InRe: Snyders and Another v minister of Justice And Constitutional Development and Others (4502/10, 5825/14) [2014] ZAWCHC 135; 2015 (1) SACR 18 (WCC); [2014] 4 All SA 374 (WCC) (5 September 2014)

De Vos N.O and Another v Minister of Justice And Constitutional Development and Others; InRe: Snyders and Another v minister of Justice And Constitutional Development and Others (4502/10, 5825/14) [2014] ZAWCHC 135; 2015 (1) SACR 18 (WCC); [2014] 4 All SA 374 (WCC) (5 September 2014)

Section 77(6)(a)(i) and (ii) of the Criminal Procedure Act, 51 of 1977, are unconstitutional because they mandate automatic and indefinite detention of accused persons found unfit to stand trial due to mental illness or defect, without affording judicial discretion or considering individual circumstances. This results in arbitrary deprivation of liberty, contrary to section 12(1)(a) of the Constitution, and unfair discrimination against children and persons with disabilities. The impugned provisions fail to provide for individualized justice, do not require an assessment of danger to society or appropriateness of detention, and are overbroad. Less restrictive means exist, such as the...

Citation
[2014] ZAWCHC 135
Parties
Applicant: Anna-Marie De Vos N.O.; Applicant: Maria Stuurman; Applicant: Sarah Snyders; Applicant: Mornay Calitz N.O.; Respondent: Minister of Justice and Constitutional Development; Respondent: Director of Public Prosecutions (Western Cape); Respondent: Minister of Health; Respondent: Down Syndrome South Africa; Respondent: Cape Mental Health
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 September 2014
Case Number
4502/10, 5825/14
Procedural Posture
Constitutional Application / First Instance Judgment; Consolidated Applications
Outcome
Section 77(6)(a)(i) and (ii) of the Criminal Procedure Act declared unconstitutional; declaration suspended for 24 months; interim reading-in of judicial discretion; prosecutions against Stuurman and Snyders stayed pending Constitutional Court confirmation; costs awarded against respondents.
Judges
Griesel
Legal Topics
Deprivation of Liberty, Judicial Discretion, Rights of Children, Mental Health Legislation, Constitutional Invalidity, Limitation of Rights
Constitutional Law Criminal Law Family and Children Deprivation of Liberty Judicial Discretion Rights of Children Mental Health Legislation Constitutional Invalidity +1 more

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Parties

Anna-Marie De Vos N.O.

Applicant

Maria Stuurman

Applicant

Sarah Snyders

Applicant

Mornay Calitz N.O.

Applicant

Minister of Justice and Constitutional Development

Respondent

Director of Public Prosecutions (Western Cape)

Respondent

Minister of Health

Respondent

Down Syndrome South Africa

Respondent

Cape Mental Health

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment; Consolidated Applications

Legal Issues

  1. 1 Whether section 77(6)(a)(i) and (ii) of the Criminal Procedure Act, 51 of 1977, are unconstitutional for mandating automatic detention of accused persons found unfit to stand trial due to mental illness or defect.
  2. 2 Whether the impugned provisions infringe the constitutional rights to freedom and security of the person, equality, dignity, and the rights of children.
  3. 3 Whether the absence of judicial discretion in section 77(6)(a) results in arbitrary deprivation of liberty.

Ratio Decidendi

Section 77(6)(a)(i) and (ii) of the Criminal Procedure Act, 51 of 1977, are unconstitutional because they mandate automatic and indefinite detention of accused persons found unfit to stand trial due to mental illness or defect, without affording judicial discretion or considering individual circumstances. This results in arbitrary deprivation of liberty, contrary to section 12(1)(a) of the Constitution, and unfair discrimination against children and persons with disabilities. The impugned provisions fail to provide for individualized justice, do not require an assessment of danger to society or appropriateness of detention, and are overbroad. Less restrictive means exist, such as the...

Court Disposition

Section 77(6)(a)(i) and (ii) of the Criminal Procedure Act declared unconstitutional; declaration suspended for 24 months; interim reading-in of judicial discretion; prosecutions against Stuurman and Snyders stayed pending Constitutional Court confirmation; costs awarded against respondents.

Orders

  • It is declared that sub-paragraphs 77(6)(a)(i) and (ii) of the Criminal Procedure Act, 1977, are unconstitutional.
  • The declaration is not retrospective and its effect is suspended for 24 months to afford the legislature an opportunity to cure the invalidity.