S v Relela, S v Olyn (B390/99, G400/99) [2000] ZANWHC 5 (16 February 2000)

DISTRIBUTABLE

CA NO. 11/2000

IN THE

HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

FIKILE CONDRAD RELELA: TAUNG DISTRICT - CASE NO. B390/99

ABMROSE OLYN : GANYESA DISTRICT - CASE NO. G400/99

REVIEW

MOGOENG J: The accused in the first matter was charged with malicious damage to property in the district court of Taung whereas the accused in the second case was charged with assault with intent to do grievous bodily harm in the district court of Ganyesa.

Before the commencement of trial each accused was referred to Weskoppies Hospital for mental observation. Dr Z.S. Baqwa observed them whereafter he compiled psychiatric reports, which concluded as follows:

(i) The accused is not capable of understanding court proceedings and is not able to make a proper defence.

(ii) At the time of committing the offence the accused was suffering from mental illness. He could not at the time of committing the offence appreciate the wrongful nature of his offence. Pursuant to this report, the Magistrate in each case found that the accused: (a) is by reason of his mental illness not capable of understanding the proceedings so as to make a proper defence (section 77(6)(a)); (b) committed the act in question but that he, at the time of such commission, was by reason of mental illness not criminally responsible for such act (section 78(6)(a)); and (c) was not guilty. The Magistrates further directed that the accused be detained at Bophelong Hospital pending the signification of a Judge in Chambers. Thereafter all the relevant documents were then sent to the office of the Director of Public Prosecutions, who in turn sent them to a Judge in Chambers for a decision in terms of section 78(6)(a) of the Code.

(ii) At the time of committing the offence the accused was suffering from mental illness. He could not at the time of committing the offence appreciate the wrongful nature of his offence.

Pursuant to this report, the Magistrate in each case found that the accused:

(a) is by reason of his mental illness not capable of understanding the proceedings so as to make a proper defence (section 77(6)(a));

(b) committed the act in question but that he, at the time of such commission, was by reason of mental illness not criminally responsible for such act (section 78(6)(a)); and

(c) was not guilty.

The Magistrates further directed that the accused be detained at Bophelong Hospital pending the signification of a Judge in Chambers. Thereafter all the relevant documents were then sent to the office of the Director of Public Prosecutions, who in turn sent them to a Judge in Chambers for a decision in terms of section 78(6)(a) of the Code.

It appears to me that the provisions of sections 77(6) and 78(6) of the Code have been widely misunderstood. That confusion stems from the perceived meaning of the phrase ‘pending the signification of the decision of a judge in chambers’ in both sections. Many court officials seem to interpret this phrase to mean that the findings and order made by a Magistrate in terms of the above sections is something of a temporary measure intended to close the gap between the receipt of a psychiatric report and the decision by a Judge in Chambers. In other words, the thinking seems to be that the decision of a Magistrate to commit an accused to prison or mental hospital in terms of either section 77(6) or 78(6) is not complete or good enough on its own. Such a decision, according to the perception, will only be good in law after a Judge in Chambers has either signified his approval of it or confirmed it. Therefore, these officials believe that a Judge’s stamp of approval must invariably be sought and obtained in cases of this nature, hence these papers now before me. The ensuing discussion, of the aforegoing incorrect perceptions, draws largely from S v Wills 1996 (2) SACR 105(T). It was clear before 1991 that it was the sole responsibility and power of a presiding Magistrate or Judge, to order the detention of an accused person in a mental institution or prison in terms of

either section 77(6) or 78(6). After such detention, the State President would issue such directives as would be necessary to the health personnel or the Attorney General (now the Director of Public Prosecutions) in terms of section 29 of the Mental Health Act. Sections 77(6) and 78(6) were amended by section 9 of the Transfer of Powers and Duties of the State President Act 51 of 1991 by substituting the word ‘Minister’ for the words ‘State President’. These sections were further amended by section 42 of the General Law Third Amendment Act 129 of 1993 by replacing ‘Minister’ with ‘a judge in chambers’. These amendments did not change the wording and substance of sections 77(6)(a) and 78(6)(a) except as already stated above. They were merely intended to transfer purely administrative functions from the State President in the first instance, and later from the Minister to a Judge in Chambers.

It appears to me that the provisions of sections 77(6) and 78(6) of the Code have been widely misunderstood. That confusion stems from the perceived meaning of the phrase ‘pending the signification of the decision of a judge in chambers’ in both sections. Many court officials seem to interpret this phrase to mean that the findings and order made by a Magistrate in terms of the above sections is something of a temporary measure intended to close the gap between the receipt of a psychiatric report and the decision by a Judge in Chambers. In other words, the thinking seems to be that the decision of a Magistrate to commit an accused to prison or mental hospital in terms of either section 77(6) or 78(6) is not complete or good enough on its own. Such a decision, according to the perception, will only be good in law after a Judge in Chambers has either signified his approval of it or confirmed it. Therefore, these officials believe that a Judge’s stamp of approval must invariably be sought and obtained in cases of this nature, hence these papers now before me. The ensuing discussion, of the aforegoing incorrect perceptions, draws largely from S v Wills 1996 (2) SACR 105(T).

It was clear before 1991 that it was the sole responsibility and power of a presiding Magistrate or Judge, to order the detention of an accused person in a mental institution or prison in terms of either section 77(6) or 78(6). After such detention, the State President would issue such directives as would be necessary to the health personnel or the Attorney General (now the Director of Public Prosecutions) in terms of section 29 of the Mental Health Act. Sections 77(6) and 78(6) were amended by section 9 of the Transfer of Powers and Duties of the State President Act 51 of 1991 by substituting the word ‘Minister’ for the words ‘State President’. These sections were further amended by section 42 of the General Law Third Amendment Act 129 of 1993 by replacing ‘Minister’ with ‘a judge in chambers’. These amendments did not change the wording and substance of sections 77(6)(a) and 78(6)(a) except as already stated above. They were merely intended to transfer purely administrative functions from the State President in the first instance, and later from the Minister to a Judge in Chambers.

The duties so transferred to a Judge are to carry out or execute the functions set out in section 29 of the Mental Health Act in respect of an accused. A Judge would be called upon to do so when the Director of Public Prosecutions, who is the official curator ad litem of the State patients, presents a report about an accused who is detained in terms of section 77(6) or 78(6) to a Judge in Chambers. That Judge should then direct whether the State patient be conditionally or unconditionally released or be further detained in terms of Chapter 3. He or she may also make any other order which he or she considers appropriate. It is only at this stage that the question of a Judge in Chambers signifying, indicating or declaring his or her decision arises. An opportunity to do so would only arise after a patient (accused) has spent some time in a mental hospital receiving treatment, doctors have expressed some positive opinion about his or her recovery and a case can be made out for his or her release. There is no decision which a Judge in Chambers has to make shortly after a Magistrate has ordered the detention of an accused in hospital or prison. This explains why sections 77(6)(a) and 78(6)(a) draw no distinction between a finding or order made by a Magistrate and a Judge. Both their orders are made ‘pending the signification of the decision of a judge in chambers’. If the

aforegoing perception were correct, then it would mean that even the trial Judge’s finding and order in terms of section 77(6) or 78(6) would have to be validated by another Judge in Chambers. It is evident from the above discussion that the above phrase only becomes relevant when a Judge has to act in terms of section 29 of the Mental Health Act. The other reason why there is nothing I can do in this matter is that a decision made by the Magistrate is not reviewable in terms of section 304 of the Code. The question whether a conviction or sentence is in accordance with justice simply does not arise since the accused were not convicted let alone sentenced. There is, therefore, nothing to review.

The duties so transferred to a Judge are to carry out or execute the functions set out in section 29 of the Mental Health Act in respect of an accused. A Judge would be called upon to do so when the Director of Public Prosecutions, who is the official curator ad litem of the State patients, presents a report about an accused who is detained in terms of section 77(6) or 78(6) to a Judge in Chambers. That Judge should then direct whether the State patient be conditionally or unconditionally released or be further detained in terms of Chapter 3. He or she may also make any other order which he or she considers appropriate. It is only at this stage that the question of a Judge in Chambers signifying, indicating or declaring his or her decision arises.

An opportunity to do so would only arise after a patient (accused) has spent some time in a mental hospital receiving treatment, doctors have expressed some positive opinion about his or her recovery and a case can be made out for his or her release. There is no decision which a Judge in Chambers has to make shortly after a Magistrate has ordered the detention of an accused in hospital or prison. This explains why sections 77(6)(a) and 78(6)(a) draw no distinction between a finding or order made by a Magistrate and a Judge. Both their orders are made ‘pending the signification of the decision of a judge in chambers’. If the aforegoing perception were correct, then it would mean that even the trial Judge’s finding and order in terms of section 77(6) or 78(6) would have to be validated by another Judge in Chambers. It is evident from the above discussion that the above phrase only becomes relevant when a Judge has to act in terms of section 29 of the Mental Health Act.

The other reason why there is nothing I can do in this matter is that a decision made by the Magistrate is not reviewable in terms of section 304 of the Code. The question whether a conviction or sentence is in accordance with justice simply does not arise since the accused were not convicted let alone sentenced. There is, therefore, nothing to review.

The Magistrates in this matter have made the correct findings coupled with an appropriate order. As I said above, there is nothing that requires my attention. M.T.R.

MOGOENG

JUDGE OF

THE HIGH COURT I agree B.E.

NKABINDE

JUDGE OF

THE HIGH COURT DATED: 16 MARCH 2000

The Magistrates in this matter have made the correct findings coupled with an appropriate order. As I said above, there is nothing that requires my attention.

M.T.R.

MOGOENG

JUDGE OF

THE HIGH COURT

I agree

B.E.

NKABINDE

DATED: 16 MARCH 2000

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