Criminal Procedure Amendment Draft Bill

The Department of Justice and Constitutional Development invites you to submit written comments on the proposed draft Criminal Procedure Amendment Bill.

Comments can be emailed to Mr H du Preez at [email protected] by no later than Monday, 15 August 2016.

Background
On 26 June 2015, the Constitutional Court in the De Vos case declared section 77(6)(a)(i) of the Criminal Procedure Act to be inconsistent with the Constitution and invalid to the extent that it provides for—
(a) compulsory imprisonment of an adult accused person; and
(b) compulsory hospitalisation or imprisonment of children.

The draft Amendment Bill aims to amend section 77(6)(a)(i) to provide the court with a discretion to order that accused concerned be detained in a—
(aa) psychiatric hospital; or
(bb) single cell or correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital if the court is of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to him/herself or to members of the public or to any property; pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act;
(cc) 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; or
(dd) be released subject to such conditions as the court considers appropriate.

The proposed amendment of section 77(6)(a)(ii) aims to provide the court with a discretion, where the court finds that the accused has committed an offence other than, among others, one involving serious violence or that he or she has not committed any offence, to order that the person concerned—
(aa) 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;
(bb) be released subject to such conditions as the court considers appropriate; or
(cc) be released unconditionally, where the court has found that the accused has not committed any offence and deems it appropriate to do so.

The case of S v Pedro largely dealt with the correct interpretation of section 79(1)(b) insofar as it relates to the composition of the psychiatric panels. Section 79(1) of the CPA deals with the constitution of the panels for purposes of the sections 77 and 78 reports to be prepared for the court. Section 79(1)(b) provides that where the accused is charged with, among others, murder or culpable homicide or another charge involving serious violence, the panel concerned must consist of a—
(a) medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by the medical superintendent at the request of the court;
(b) a psychiatrist appointed by the court and who is not in the full-time service of the State unless the court directs otherwise, upon application of the prosecutor, in accordance with directives that have been issued by the National Director of Public Prosecutions;
(c) a psychiatrist appointed for the accused by the court; and
(d) a clinical psychologist where the court so directs.
The court gave a clear and unambiguous interpretation of how section 79(1)(b) should be read in order to ensure that the psychiatric panels are properly constituted. The decision was made to include the proposed amendments in the draft Amendment Bill in an attempt to promote legal certainty throughout the country.

SAFLII Summary: De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others CCT150/14 
On 26 June 2015 the Constitutional Court handed down judgment in confirmation proceedings on the constitutional validity of two provisions in the Criminal Procedure Act (Act), which provide for the compulsory hospitalisation, imprisonment or institutionalisation of an accused person who is found to be mentally unfit to stand trial.

One of the provisions concerns serious offences and the other concerns minor offences and cases where it is found that no criminal act has been committed by an accused at all.  The constitutionality of these provisions was challenged separately by the respective curators ad litem of two persons charged with criminal conduct. The cases were subsequently consolidated in the Western Cape Division of the High Court, Cape Town.

The High Court concluded that the provisions unjustifiably violate the constitutional rights to freedom and security of the person and the rights of children as they do not provide a presiding officer with the necessary discretion to craft an appropriate remedy for an accused person with a mental illness or intellectual disability.  The Court suspended the order of invalidity to facilitate Parliament’s involvement in remedying the defect. As a temporary measure, the Court read-in various discretionary options for a judicial officer.

Before this Court, the applicants argued that the section infringes or threatens an accused person’s constitutional rights to equality, dignity, freedom and security of the person and the rights of children.  They submitted that, since there is no evaluation as to whether the accused poses a threat to himself or to society, and because the provision allows for no discretion, the deprivation envisaged is far-reaching, arbitrary and without just cause. The respondents maintained that the matter was not ripe for hearing.  They also argued that the provisions are consistent with the Constitution and South Africa’s international law obligations.  They submitted that the provisions protect broader society and ensure the proper treatment and care of persons with mental illness or intellectual disabilities and are therefore rational.

Cape Mental Health, who made submissions as a friend of the court or amicus curiae, argued that mental illness is complex, the mentally ill are not necessarily violent and individual capacity for violence should be assessed before a court orders hospitalisation or institutionalisation. They specifically asked this Court to rule that imprisonment is always inappropriate as the purposes of the provisions are never to punish an accused.

In a unanimous judgment written by Leeuw AJ, this Court found the provision dealing with serious offences to be inconsistent with the Constitution and invalid to the extent that it provides for compulsory imprisonment of all accused persons and compulsory hospitalisation of children.  Presiding officers should be afforded a discretion when dealing with children so as to ensure that detention is undertaken as a last resort and for the shortest period possible.  However, the Court found that the mandatory hospitalisation of adult accused persons is rational as a precautionary measure to guarantee the care of the accused and the safety of society.  The Court held that the second provision is constitutionally invalid as it prescribes that an accused person who has committed no act or a minor offence be institutionalised, regardless of whether they are likely to inflict harm to themselves or others and do not require care, treatment and rehabilitation in an institution which violates their freedom and security of the person.

The Court suspended the order of invalidity in respect of the compulsory imprisonment of adults and the compulsory hospitalisation and imprisonment of children for a period of 24 months to allow Parliament to remedy the defects.  The order does not operate retrospectively.