Criminal Matters Amendment Act, 1998

1. Section 25 of the Mental Health Act. 1973. is hereb\ amended— ((]) by the substitution for paragraph (c/) of subjection ( 1 ) of the following S paragraph: ‘.(a) When a patient is detained in an institution or other place, the superintendent or person in charge thereof or the medical practitioner in charge of the patient shall [, except in the case of a patient detained in an institution under the control of the State and who is not in the medical 10 care of the superintendent of such institution,] transmit in the prescribed form [annually for the first three years and thereafter in the fifth year and then every three years,] every six months a report to the Director-General as to the mental condition of the patient...: and (b) by the deletion of subsection (2). Amendment of section 29 of Act 18 of 1973, as amended by section 1 of Act 48 of 1976, section 3 of Act 10 of 1978, section 9 of Act 51 of 1991, section 33 of Act 129 of 1993 and section 7 of Act 204 of 1993

2. Section 29 of the Mental Health Act. 1973. is hereby amended b! the substitution for subsection ( 1 ) of the following subsection: ‘.( 1 ) (a) Where anv person is. with reference to a charge of murder or culpable homicide or rape or a charge involving serious violence. or if the court considers it to be necessary in the public interest. detained as a State patient in terms of this Act 15 20 4 No. 19324 Act No. 68, 1998 GOVERNMENT GUE~. 7 OCTOBER 1998 CRIMINAL MATTERS AMENDMENT ACT, 1998 or section 77(6)(a)(i) or 78(6)(b)(i) of the Cnmina] procedure Act, ]977 (Act No. 51 of 1977), a judge in chambers may at any time after the order of detention, on written application being made to him or her— (i) call for such further information as he or she may consider necessary and may summon any psychiatrist to his or her assistance; (ii) if he or she is of the opinion that it is desirable to do so. appoint of his or her own accord or at the request of any interested person, on good cause shown, a ct~raror ad lifenz for the State patient; (iii) order that the State patient— (aa) be discharged either absolutely or conditionally; (bb) cease to be treated as such: (cc) be further detained as a State patient: or (old) be further detained as a patient under Chapter 3: (iv) make such other order under section 19 as he or she may think fit; or (v) reject the application if a similar application had been rejected by a judge in chambers less than 12 months before the date of the aforementioned application. without making an order in terms of subparagraphs (iii) or (iv) of this paragraph or make any order he or she thinks fit. (b) An application referred to in paragraph (a) ma> be made by— (i) the official curator ad lifenf; (ii ) the superintendent of the institution. the person in charge of the place where the State patient is being detained or the medical practitioner in charge of the patient: (iii ) the State patient: (iv) a relative of the State patient: or (v) any other person or body on behalf of the State patient. (c) (i) Such— (aa ) application referred to in paragraph (a): (bb) recommendation referred to in subparagraph (ii) of paragraph (d); or (cc) reports referred to in paragraphs (d) and (f). 5 [0 15 ?0 ~5 30 shall be furnished to the registrar of the court in whose area of jurisdiction the place is situated in which the patient is being detained. (ii ) Such registrar shall forthwith submit— (aa ) such application. reports and recommendations 10 a judge in chambers: and (bb) a copy of the application to the oticial c~{raror ad lir(’~~~. if the application is 35 made by someone other than the official cllraror (id l;[en~. (d) The official cura[or ad Ii[en? shall upon receipt of an application from the registrar as soon as practicable— (i) obtain reports on the State patient concerned by— (aa} the superintendent of the institution. the person in charge of the place where the State patient is being detained or the medical practitioner in charge of the patient; and (bb) two medical prtictitioners. and either the said superintendent or one of the said two medical practitioners shall be a psychiatrist, provided that he or she may obtain a report by a registered Cllnica] psychologist in addition [O the aforementioned reports; (ii) compile his or her own report and recommendation regarding the application, pro~ided that if it appears to the official curaror ad lirenl upon the receipt of such application that a similar application in respect of the State patient concerned had been rejected by a judge in chambers less than 12 months before the date of the aforementioned application. he or she may. instead of obtaining the reports referred to in subparagraph (i) of paragraph (a). make a recommendation that the application be rejected; and (iii ) furnish such reports and recommendation to the registrar for submission to a judge in chambers. $0 45 jo 55 (e) The reports referred to in subparagraph (i) of paragraph (d) and subparagraph (i) of paragraph (f) shall contain a detailed history of the State patient and information as to. and a prognosis of. his or her mental condition. I 6 No. 19324 Act No. 68, 1998 GOVERNMENT GAZEmE,70CTOBER 1998 CRIMINAL MA~ERS AMENDMENT ACT, 1998 V) The curator ad lirem appointed under subparagraph (ii) of p~agraph (u), shall— (i) obtain a report as contemplated in paragraph (e) by a psy~hiatfist, but may also obtain a report by a registered clinical psychologist in addition to the report by the psychiatrist; (ii) adduce any alrailable evidence relevant to the application; and (iii) pefio~ such other duties as the judge in chambers instructs. 5 (g) A curator ad litem appointed under subparagraph (ii) of paragraph (a) shall be entitled to the remuneration that the Minister of Justice determines bv notice in the Gazette.”. Amendment of section 77 of Act 51 of 1977, as amended by section 10 of Act 33 of 10 1986, section 9 of Act 51 of 1991 and section 42 of Act 129 of 1993

3. Section 77 of the Criminal Procedure Act, 1977, is hereby amended— (a) by the insertion of the following subsection after subsection (1): “(1 A) At proceedings in terms of sections 77(1) and 78(2) the court may, if it is of the opinion that substantial injustice would otherwise result, order that the accused be provided with the services of a legal practitioner in terms of section 3B of the Legal Aid Amendment Act, 1996 (Act No. 20 of 1996).”: (b) by the substitution for paragraph (a) of subsection (6) of the following paragraph: “(a) If the court which has jurisdiction in terms of section 75 to t~ the ~ finds that the accused is not capable of understanding the proceedings so as to m&e a proper defence. the court may. if it is of the opinion that it is in the interests of the accused. tating into account the nature of the accused’s incapacity contemplated in subsection ( 1 ). and unless it can be proved on a balance of probabilities that. on the limited evidence available the accused committed the act in question. order that such information or evidence be placed before the court as it deems fit so as to determine whether the accused has committed the act in question and the court shall direct that the accused— (i) in the case of a charge of murder or culpable homicide or rape or a charge involving serious violence or if the court considers it to be necessarv in the public interest. where the court finds that the accused has committed the act in question. or anv other offence involving serious violence, be detained in a psychiatric hospital or a prison pending the [signification of the] decision of a judge in chambers in terms of section 29(1 )(a) of the Mental Health Act. 1973 (Act No. 18 of 1973): or (ii) where the court finds that the accused has committed an offence other than one contemplated in subparagraph (i) or that he or she has not committed any offence— (aa) be admitted to, detained and treated in an institution stated in the order in terms of Chapter 3 of the Mental Health Act. 1973 (Act No. 18 of 1973); or (bb) be treated as an outpatient in terms of section 7 of that Act, pending discharge by a hospital board in terms of section 29 (4A)(a) of that Act or an order that he or she shall no longer be treated as an outpatient. and if the court so directs after the accused has pleaded to the charge, the accused shall not be entitled under section 106(4) to be acquitted or to be convicted in respect of the charge in question.”; (c) by the substitution for subsection (7) of the following subsection: “(7) Where a direction is issued [under] in terms of subsection (6) or (9) [that the accused be detained in a psychiatric hospital or a prison pending the signification of the decision of a judge in chambers]. the 15 20 ~j 30 3j 40 45 50 55 i I 8 No. 19324 GOVERNMENT GAZEm, 7 O~OBER 1998 Act No. 68, 1998 CRIMINAL MA~ERS AMENDMENT ACT. 1998 accused may at any time thereafter, when he or she is capable of understanding the proceedings so as to make a proper defence, be prosecuted and tried for the offence in question.”; and (d) by the substitution for subsection (9) of the following subsection: “(9) Where an appeal against a finding [under] in terms of subsection 5 (5) is allowed, the court of appeal shall set aside the conviction and sentence and direct that the person concerned be detained [in a psychiatric hospital or a prison pending the signification of the decision of a judge in chambers] in accordance with the provisions of subsection (6).”. 10 Amendment of section 17 of Act 18 of 1973, as amended by section 2 of Act 10 of 1978 and section 7 of Act 51 of 1991

4. Section 17 of the Mental Health Act, 1973, is hereby amended by the substitution for the expression “an attorney-general” of the expression “a Director of Public Prosecutions appointed in terms of section 13(1) of the National Prosecuting Authority 15 Act, 1998 (Act No. 32 of 1998)”. Amendment of section 78 of Act 51 of 1977, as amended by section 11 of Act 33 of 1986, section 9 of Act 51 of 1991 and section 43 of Act 129 of 1993

5. Section 78 of the Criminal Procedure Act, 1977, is hereby amended— (a) by the substitution for subsection (1) of the following subsection: Lo “(i) A person who commits an act or makes an omission which con- stitutes an offence and who at the time of such commission or omission suffers from a mental illness or mental defect which makes him or her incapable— (a) of appreciating the wrongfulness of his or her actor omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his q 2j her act or omission, shall not be criminally responsible for such act or omission.”: (b) by the insertion after subsection (1) of the following subsections: “(1A) Every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of section 30 78( 1), until the contrary is proved on a balance of probabilities. (1 B) Whenever the criminal responsibility of an accused with reference to the commission of an act or an omission which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue.”; 35 (c) by the substitution for subsection (2) of the following subsection: “(2) If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so 40 responsible, the court shall in the case of an allegation or ap pearance of mental illness or mental defect. and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.’.; and (d) by the substitution for subsection (6) of the following subsection: 45 .’(6) If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or mental defect not criminally responsible for such act— (a) the court shall find the accused not guilty; or (b) if the court so finds after the accused has been convicted of the 50 offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty, I () No. 19324 Act No. 68, 1998 GOVERNMENT GAZETTE. 7 OCTOBER 1998 CRIMINAL MA~ERS AMENDMENT ACT. 1998 by reason of mental illness or mental defect, as the case may be, and direct— “ (1) in a case where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be— (aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 29(1)(a) of the Mental Health Act. 1973 (Act No: 18 of 1973); admitted to, detained and treated in an institution stated in the order in terms of Chapter 3 of the Mental Health Act. 1973 (Act No. 18 of 1973), pending discharge by a hospital board in terms of section 29(4A)(a) of that Act; treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institu- tion stating that he or she need no longer be treated as such: released subject to such conditions as the court considers appropriate: or released unconditionally; (bb) (cc) (old) (ee) (ii) in any other case than a case-contemplated in subparagraph (i). that the accused— (aa) be admitted to, detained and treated in an institution stated in the order in terms of Chapter 3 of the Mental Health Act. 1973 (Act No. 18 of 1973), pending discharge by a hospital board in terms of section 29(4A)(a) of that Act; (bb) be treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institu- tion stating that he or she need no longer be treated as such: (cc) be released subject to such conditions as the coufi considers appropriate; or (old) be released unconditionally.’.. Amendment of section 79 of Act 51 of 1977, as amended by section 4 of Act 4 of 1992, section 17 of Act 116 of 1993 and section 44 of Act 129 of 1993

6. Section 79 of the Criminal Procedure Act. 1977. is hereby amended— (a) by the substitution for subsection (1) of the following subsection: “(1 ) Where a court issues a direction [in terms OH 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 [for which the sentence of death may not be imposed referred to in Part II Or Part III of Schedule 2] 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 where the accused is charged with [an offence for which the sentence of death may be imposed referred to in Part II or Part III of Schedule 2] murder or culpable homicide or rape 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— (b) (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: [and] (iii) bv a psychiatrist appointed [by] for the accused [if he so w;ishes] bv the court: and (iv) by a clinical psychologist where the court so directs ..: 35 40 45 50 55 12 No. 19324 GOVERNMENT GAZEm,70CTOBER 1998 Act No. 68, 1998 CRIMINAL MA~ERS AMENDMENT ACT. 1998 (b) by the insertion after subsection (1) of the following subsection: j “(1 A) The prosecutor undertaking the prosecution of the accused or any other prosecutor attached to the same court shall provide the persons who. in terms of subsection (1), have to conduct the enquiry and report on the accused.s mental capacity with a report in which the following are stated, namely— (a) (b) (c) (d) (e) whether the referral is taking place in terms of section 77 or 78; at whose request or on whose initiative the referral is taking place; the nature of the charge against the accused; the stage of the proceedings at which the referral took place; the purport of any statement made by the accused before or during the court proceedings that is relevant with regard to his or her mental condition or mental capacity; the purport of evidence that has been given that is relevant to the accused’s mental condition or mental capacity; in so far as it is within the knowledge of the prosecutor. the accused’s social background and family composition and the names and addresses of his or her near relatives: and anv other fact that may in the opinion of the prosecutor be relevant in - the evaluation of-the accused’s mental condition or mental I 20 -.”; v) (g) (/7) 15 10 (c) by the addition of the following paragraph to subsection (2): “(c) The court may make the following orders after the enquiry referred to in subsection (1) has been conducted— (i) postpone the case for such periods referred to in paragraph (a). 25 as the court may from time to time determine; (ii) refer the accused at the request of the prosecutor to the court referred to in section 77(6) which has jurisdiction to tv the case: (iii) make any other order it deems fit regarding the custod! of the 30 accused: or (iv ) any other order.’.: and (d) by the substitution for paragraph (d} of subsection (4) of the following paragraph: “(d) if the enquiry is [under] in terms of section 78(2). include a finding as to the extent to which the capacity of the accused to appreciate the wrongfulness of the act in question or to act in accordance with an appreciation of the wrongfulness of that act was. at the time of the commission thereof, affected by mental illness or mental defect or by any other cause.’.. Savings 7. ( 1 ) Pending the commencement of the Legal Aid Guide as contemplated in section 3A of the Legal Aid Act. 1969 (Act No. 22 of 1969). and to the extent that the Legal Aid Guide. existing at the commencement of this Act. does not regulate the position of the granting of legal aid or legal representation in respect of the proceedings referred to in section 3(u) of this Act, the Legal Aid Board shall be competent to draft directives. in consultation with the Minister, in terms of which legal aid or legal representation is rendered or made available for purposes of section 3(a) of this Act. 35 40 4j (2) (a) The directives referred to in subsection (1) must be published in the Ga:effe. (b) Before the directives are published in the Gazette. they must be submitted to 50 Parliament and tabled as soon as possible. Short title and commencement

8. This Act shall be called the Criminal Matters Amendment Act. 1998. and shall come into operation on a date fixed by the President by proclamation in the Ga:erfe.