De Vos N.O and Others v Minister of Justice And Constitutional Development and Others (CCT 150/14) [2015] ZACC 21; 2015 (2) SACR 217 (CC); 2015 (9) BCLR 1026 (CC) (26 June 2015)

De Vos N.O and Others v Minister of Justice And Constitutional Development and Others (CCT 150/14) [2015] ZACC 21; 2015 (2) SACR 217 (CC); 2015 (9) BCLR 1026 (CC) (26 June 2015)

Section 77(6)(a)(i) and (ii) of the Criminal Procedure Act 51 of 1977 are constitutionally invalid to the extent that they mandate compulsory imprisonment of adult accused persons and compulsory hospitalisation or imprisonment of children found incapable of understanding proceedings. The provisions are peremptory and deprive presiding officers of judicial discretion, resulting in arbitrary and unjust deprivation of liberty. This infringes the rights to freedom and security of the person under section 12 of the Constitution, as well as the rights of children under section 28. The legislative scheme fails to provide adequate procedural and substantive safeguards, and the mere existence of a...

Citation
[2015] ZACC 21
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: Minister of Health; Respondent: Director of Public Prosecutions, Western Cape; Amicus Curiae: Cape Mental Health
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
26 June 2015
Case Number
CCT 150/14
Procedural Posture
Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity
Outcome
Section 77(6)(a)(i) of the Criminal Procedure Act is declared inconsistent with the Constitution and invalid to the extent that it provides for compulsory imprisonment of adults and compulsory hospitalisation or imprisonment of children. Section 77(6)(a)(ii) is declared inconsistent with the Constitution and...
Judges
Mogoeng, Moseneke, Froneman, Khampepe, Leeuw, Madlanga, Nkabinde, Tshiqi, Van der Westhuizen, Zondo
Legal Topics
Deprivation of Liberty, Mental Health and Criminal Responsibility, Children's Rights, Equality and Non Discrimination, Remedies for Unconstitutional Legislation
Constitutional Law Criminal Law Deprivation of Liberty Mental Health and Criminal Responsibility Children's Rights Equality and Non Discrimination Remedies for Unconstitutional Legislation

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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

Minister of Health

Respondent

Director of Public Prosecutions, Western Cape

Respondent

Cape Mental Health

Amicus Curiae

Procedural Posture

Constitutional Confirmation / Application for Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Whether section 77(6)(a)(i) and (ii) of the Criminal Procedure Act 51 of 1977 are constitutionally valid to the extent that they mandate compulsory imprisonment or hospitalisation of accused persons found incapable of understanding proceedings.
  2. 2 Whether the provisions violate the rights to freedom and security of the person under section 12 of the Constitution, and the rights of children under section 28.
  3. 3 Whether the denial of judicial discretion at the section 77(6)(a) stage is constitutionally permissible.

Ratio Decidendi

Section 77(6)(a)(i) and (ii) of the Criminal Procedure Act 51 of 1977 are constitutionally invalid to the extent that they mandate compulsory imprisonment of adult accused persons and compulsory hospitalisation or imprisonment of children found incapable of understanding proceedings. The provisions are peremptory and deprive presiding officers of judicial discretion, resulting in arbitrary and unjust deprivation of liberty. This infringes the rights to freedom and security of the person under section 12 of the Constitution, as well as the rights of children under section 28. The legislative scheme fails to provide adequate procedural and substantive safeguards, and the mere existence of a...

Court Disposition

Section 77(6)(a)(i) of the Criminal Procedure Act is declared inconsistent with the Constitution and invalid to the extent that it provides for compulsory imprisonment of adults and compulsory hospitalisation or imprisonment of children. Section 77(6)(a)(ii) is declared inconsistent with the Constitution and...

Orders

  • Section 77(6)(a)(i) of the Criminal Procedure Act 51 of 1977 is declared 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.
  • The declaration of invalidity is suspended for 24 months from the date of this judgment to allow Parliament to correct the defects.