S v Luphuwana (DH 10/07) [2013] ZAGPJHC 289; 2014 (1) SACR 503 (GJ) (6 November 2013)

S v Luphuwana (DH 10/07) [2013] ZAGPJHC 289; 2014 (1) SACR 503 (GJ) (6 November 2013)

The magistrate materially departed from the mandatory procedures set out in the Criminal Procedure Act by failing to put the charge to the accused and requiring him to plead before proceeding to hear evidence and make findings. Section 78(6) requires that the accused be found 'not guilty' by reason of mental illness or intellectual disability, which presupposes that the charge has been put and a plea entered. The magistrate's order admitting and detaining the accused as an involuntary mental health care user was made without lawful foundation, as no lis was established and the evidence led was inadmissible in the absence of a plea. The proceedings were thus irregular and cannot stand. The...

Citation
[2013] ZAGPJHC 289
Parties
Applicant: The State; Respondent: Mbijana Luphuwana
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 November 2013
Case Number
DH 10/07
Procedural Posture
Criminal Review / Review of Magistrate's Order Under Section 78(6)(ii)(aa) of the Criminal Procedure Act
Outcome
The magistrate's proceedings and order of 27 June 2013 are reviewed and set aside due to material irregularity. The matter is remitted to the Magistrate's Court for proper procedure under the Criminal Procedure Act.
Judges
P Coppin, B Vally
Legal Topics
Mental Illness and Criminal Responsibility, Criminal Procedure Act Section 78, Domestic Violence Act, Procedural Irregularity, Unfitness to Plead
Criminal Law Mental Illness and Criminal Responsibility Criminal Procedure Act Section 78 Domestic Violence Act Procedural Irregularity Unfitness to Plead

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Parties

The State

Applicant

Mbijana Luphuwana

Respondent

Procedural Posture

Criminal Review / Review of Magistrate's Order Under Section 78(6)(ii)(aa) of the Criminal Procedure Act

Legal Issues

  1. 1 Whether the magistrate was correct in making an order under section 78(6)(ii)(aa) of the Criminal Procedure Act without first requiring the accused to plead to the charge.
  2. 2 Whether the failure to find the accused 'not guilty' as required by section 78(6)(a) constitutes a material irregularity.
  3. 3 Whether evidence may be led to prove commission of the act before the accused has pleaded to the charge.

Ratio Decidendi

The magistrate materially departed from the mandatory procedures set out in the Criminal Procedure Act by failing to put the charge to the accused and requiring him to plead before proceeding to hear evidence and make findings. Section 78(6) requires that the accused be found 'not guilty' by reason of mental illness or intellectual disability, which presupposes that the charge has been put and a plea entered. The magistrate's order admitting and detaining the accused as an involuntary mental health care user was made without lawful foundation, as no lis was established and the evidence led was inadmissible in the absence of a plea. The proceedings were thus irregular and cannot stand. The...

Court Disposition

The magistrate's proceedings and order of 27 June 2013 are reviewed and set aside due to material irregularity. The matter is remitted to the Magistrate's Court for proper procedure under the Criminal Procedure Act.

Orders

  • The proceedings commencing on 27 June 2013, including the judgment and order for admission and detention of Mbijana Luphuwana as an involuntary mental health care user, are reviewed and set aside.
  • The matter is remitted to the Magistrate's Court.