S v Siko (CA&R 20/10) [2010] ZAECBHC 6; 2010 (2) SACR 406 (ECB) (24 June 2010)

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE: BHISHO

REVIEW CASE NO B 318/08

CASE NO: CA&R 20/10

Delivered on : 24 June 2010

In the matter between:

THE

STATE

And

SIYABONGA

SIKO

REVIEW JUDGMENT

KEMP AJ

[1] This matter was referred to this court by the additional magistrate, Whittlesea, for special review, subsequent to an order that the accused be detained pending a decision of a Judge in Chambers, as the magistrate subsequently realized that the district court did not have the necessary jurisdiction to make the order.[1] There were however also two other problems, the first being that the record does not reveal whether any facts were presented to the magistrate in terms of section 77(6) of the CPA, upon which the magistrate could make a decision as to whether or not the accused had committed the actus reus complained of, and secondly, the accused had not been interviewed in line with the requirements of section 79(1)(b) of the CPA, but only by the medical superintendent of a psychiatric hospital in line with section 79(1)(a)[2] of the CPA.

[2] The accused first appeared in the District court in Whittlesea on the 21st August 2008 where he was charged with murder, assault with intent to do grievous bodily harm and theft. The original charge sheet did not form part of the record so I do not know when the alleged offences are alleged to have taken place. This matter has been delayed so many times already that I do not propose to delay matters any further by enquiring from the magistrate when the alleged offences took place.

[3] Although the accused represented himself at the first hearing and indicated that he wanted to conduct his own defence, the prosecutor recorded that the accused appeared not to fully understand the proceedings and

the court also recorded that he did not appear to be coherent or to fully understand the proceedings. Arrangements were made to have the accused admitted to the Komani hospital pending the availability of a bed at the Fort England hospital for observation and the matter was postponed to the 1st September 2008. At the next hearing the accused was absent, and the prosecutor informed the court that he had been admitted to the Komani Hospital.

[4] The matter was postponed to the 5th September 2008 when the accused appeared and an order referring him to Komani Hospital was made. The accused was not present on the next remand date, the 7th October 2008 and the prosecutor advised that he had never been admitted to the Komani Hospital as the form J138E was never forwarded to them. A report was made that the accused was ill in hospital. The matter was postponed to the 8th October when the accused appeared. The prosecutor advised that it now appeared that the accused was in custody at the Komani Hospital and the matter was postponed to the 15th October in order to speak to the Sister in charge at the Hospital. On the 15th October 2008 it was established that the accused was still at Komani Hospital but they were still waiting for the J138E form.

[5] The matter was postponed to the 28th October when it was reported that the accused was still at the Komani Hospital and the matter was rolled over to the next day when the accused appeared, represented for the first time by a legal representative, a Mr James, and another order was issued referring him for observation at the Komani Hospital. Although the matter was postponed to the 3rd December 2008 the matter appeared before court again on the 18th November

2008 when the medical examiner’s report was handed up .

[6] The accused was represented this time by a Mr Bodlo, who advised that he had seen the report and had no objection to the State’s application to implement the recommendation contained in the report. Although the order appears to have been made on the 18th November 2008 there is a copy of a cancelled J138E form in the file dated 5

September 2008 requesting the Medical Superintendent to submit the report by the 7th October 2008, and another copy of a J138E form dated 29 October 2008 requesting the Medical Superintendent to submit the report by the 3rd December 2008, a time frame which would have been too short under normal circumstances, but it appears as if the accused had in any event been at Komani Hospital for some months.

[7] The report was by the Principal Psychiatrist at the Komani Hospital, and was to the effect that the accused did not have the capacity to appreciate the wrongfulness of his actions at the time of the alleged offence, that his ability to act accordingly was impaired by mental illness and that he should be declared a State Patient.

[8] A distinction is made in section 79 of the CPA where murder, culpable homicide and the other offences mentioned in section 79(1)(b) are mentioned. In those instances, it is necessary to have the accused examined by a panel of at least three suitably qualified medical personnel. This is no doubt because the consequences of being declared a State patient in terms of section 47 of the Mental Health Care Act,[3] are substantially more opressive than an order in terms of section 37 of the Mental Health Care Act. It appears far more complicated to obtain the discharge of a State patient in terms of section 47 than of an involuntary patient in terms of section 37.[4]

[9] It is clear that the magistrate’s court lacked the jurisdiction to make the order referring the accused for observation and that because he was accused of inter alia murder, [5] that he should have been assessed by the panel of professionals referred to in 79(1)(b) of the CPA. Section 77(6)(a)(ii) however also provides that if the court finds that the accused has not committed any offence that he or she may be admitted to and detained in an institution stated in the order as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002.

[10] I am also concerned, as Willis J was, in S v Ramokoka,[6] about the prospects of releasing a potentially dangerous individual back into society but I propose a different approach. I am equally concerned about the interests of the accused and concerned that even if he is taken forthwith to the magistrate’s court, that it is not unlikely that he may wait for months for a bed in the very hospital from which he was taken. If he was in fact not able to appreciate the wrongfulness of his actions when the alleged crimes were committed and if he is receiving and possibly responding to treatment at the Komani Hospital, then it may well undo whatever good has been done there to have him arrested and detained in a normal prison while the matter runs its normal course in the magistrate’s court.

[11] I see no reason why I cannot make an order in terms of section 77(6)(a)(ii), which will serve as an interim order, whilst the matter is referred back to the magistrate’s court in order to be dealt with appropriately. Although the magistrate’s court lacked jurisdiction to hear the matter, this court can substitute the

magistrate’s order with an order that this court could have validly made on the facts before it and it is clear that there is a report from a psychiatrist which complies with the provisions of section 77(6)(a)(ii).

[12] The fact that a serious offence may have been committed is a separate issue and what I envisage will happen in the magistrate’s court is that the matter will be referred by the magistrate’s court

to a court with the appropriate jurisdiction, which will then as expeditiously as possible set the necessary wheels in motion to have the accused examined by a panel of psychiatrists, after ensuring that sufficient facts get placed before the court in order for it to assess whether the actus reus complained of in fact took place.

[13] In the event I am of the view that an appropriate order would be as follows:

(a) The magistrate’s findings and order dated 29 October 2008 are hereby set aside.

(b) The accused is ordered to be detained at the Komani Hospital as if he is an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002.

(c) This matter is referred back to the magistrate’s court to be dealt with appropriately in terms of the Criminal Procedure Act 51 of 1977 and the Mental Health Care Act, 2002.

Dated at Bhisho this 24th day of June 2010

LD

KEMP

ACTING

JUDGE OF THE HIGH COURT

I agree and it is so ordered

Y

EBRAHIM

JUDGE

OF THE HIGH COURT

[1] The accused had been charged inter alia with murder and as section 76(1) of the Criminal Procedure Act No 51 of 1977 (“the CPA”) requires the court making the court to have jurisdiction in the matter, the proceedings were accordingly void.

[2] Section 79 of the CPA provides as follows: “(1) Where a court issues a direction under section 77(1) or 78(2), the relevant enquiry shall be conducted and be reported on – (a) where the accused is charged with an offence other than one referred to in paragraph (b), by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or (b) where the accused is charged with murder or culpable homicide or rape or compelled rape as contemplated in sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or another charge involving serious violence, or if the court considers it to be necessary in the public interest, or where the court in any particular case so directs- (i) by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; (ii) by a psychiatrist appointed by the court and who is not in the full-time service of the State; (iii) by a psychiatrist appointed for the accused by the court; and (iv) by a clinical psychologist where the court so directs.”

[2] Section 79 of the CPA provides as follows:

“(1) Where a court issues a direction under section 77(1) or 78(2), the relevant enquiry shall be conducted and be reported on –

(a) where the accused is charged with an offence other than one referred to in paragraph (b), by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or

(b) where the accused is charged with murder or culpable homicide or rape or compelled rape as contemplated in sections 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or another charge involving serious violence, or if the court considers it to be necessary in the public interest, or where the court in any particular case so directs-

(i) by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court;

(ii) by a psychiatrist appointed by the court and who is not in the full-time service of the State;

(iii) by a psychiatrist appointed for the accused by the court; and

(iv) by a clinical psychologist where the court so directs.”

[3] Act No. 17 of 2002. (“the Mental Health Care Act”)

[4] Section 37 for instance provides for regular automatic reviews of the patients status whilst section 47 does not.

[5] A district court does not have the necessary jurisdiction to hear a charge of murder. (See section 89 of the Magistrate’s Courts Act No. 32 of 1944) Although Section 110 of the CPA provides that if the accused does not plead that the court has no jurisdiction, that the court may dispose of the matter, this relates mainly to territorial jurisdiction. It can not add to the jurisdiction of the court as far as offences are concerned (See S v M (1979(2) SA 959 T) and a person who does not have capacity to act could in any event not consent to the court’s jurisdiction.

[6] [2006] ZAGPHC 37; 2006 (2) SACR 57 at [29]. The learned judge ordered that the accused be handed over to the police immediately upon his release and forthwith to be brought by them to appear before the magistrate.