Criminal Procedure Amendment Bill: Department response to submissions

Meeting report

Ms M Mothapo (ANC) was requested to act as Chairperson for the meeting.

Criminal Procedure Amendment Bill B2-2017: Department of Justice and Constitutional Development responses to public submissions
Mr Lawrence Basset, Chief Director, Department of Justice and Constitutional Development, briefly outlined that the Criminal Procedure Amendment Bill B2-2017 (the Bill) seeks to amend the Criminal Procedure Act No 51 of 1977 (CPA or the Act). The amendments were being made following the Constitutional Court judgment in De Vos N.O and others v Minister of Justice and Constitutional Development and Others (De Vos). The amendments will provide courts with a wider range of options, where an accused person is not capable of understanding the proceedings, and will add a new defence of not guilty by reason of mental illness or intellectual disability.

Mr Bassett noted that several organisations had submitted public comments on the Bill.

Use of intellectual disability: Section 27 submission
Section 27 (a public law centre) submitted that the Constitutional Court in the De Vos matter used the term 'intellectual disability' in its judgment rather than ‘mental defect’.
The Department of Justice and Constitutional Development (the Department) noted that point, and wanted to recommend that the term ‘mental defect’ and ‘mentally disabled’ be removed and should be replaced with ‘intellectual disability’.

The point was also made that some laws treat people with mental illness and intellectual disability as incapable of carrying out certain responsibilities by virtue of mental status. The Department responded that laws disqualify people on the basis of mental illness or intellectual disability, having no regard to their ability to carry out responsibilities.

Section 77 additions
Mr Bassett noted that the Department was also proposing the addition of a new subparagraph (bb) to the original section 77 of the CPA. This would read:

“(i) In the case of a charge of murder or culpable homicide or rape or compelled rape as contemplated in Section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, or charge involving serious violence, be
(bb) temporarily detained in correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital and be transferred where a bed becomes available, if the court if of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to him or herself or to members of the public or to any property belonging to him or her or any other person; pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002”

The Centre for Child Law (CCL) had proposed an amendment to section 77(6), on the basis that as presently worded, it did not provide child centered options to presiding officers, to ensure that the detention of children would be used as a  last resort. CCL recommended that subsection (6) should thus be amended to refer to section 50 of the Child Justice Act 75 of 2008 (CJA).

The Department was now proposing the new sub-paragraph (bb) to make provision for instances where a person can be released by the court on conditions. The Constitutional Court noted that the imprisonment can only be used as a stop gap to protect the public, in circumstances where the accused is likely to cause harm to himself or others.

Section 27 was concerned about the proposed amendment on three levels:
-imprisonment in circumstances where the person poses a danger or threat to property
-failure to clearly state which government institution is responsible for establishing the availability of a bed in a psychiatric facility
-severe shortage of mental health care services.

Mr Bassett read out the proposed wording for new subsections (cc) and (dd) reading:

(cc)  admitted to and detained in a designated health establishment stated in the order, as if he or she were an involuntary mental health case user contemplated in section 37 of the Mental Health Care Act, 2002 or
(dd) released subject to such conditions as the court considers appropriate; or
(ii) in the case 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.... (be)

He explained the rationale. According to the Constitutional Court, the principle was that in order to strike an appropriate balance between the rights of the accused and the protection of the community, imprisonment would be viable as a stop gap measure if the presiding officer is of the opinion that the State patient is likely to cause serious harm to himself and others.

The court, correctly,  did not order detention to protect property, as it would not have been justified.

He noted that the the proposed amendment to subsection (6) does not state who is responsible for finding and transferring the accused to a psychiatric hospital when a bed becomes available. He agreed that the current shortage of beds in psychiatric facilities also creates a risk that the accused persons will be detained indefinitely.

However the Department pointed out that these concerns are addressed in the Mental Observation Protocol.

The Court at present does not have any discretion with regard to accused persons who are in psychiatric facilities. Accused persons are either detained in psychiatric hospitals or prisons. The proposed extension of the orders that the courts may grant will ease the system.

Discussion
The Acting Chairperson asked the Department to explain the practical application of the proposed amendment to the Bill. This question had been raised during the Committee’s last engagement with the Department.

Dr M Motshekga (ANC) asked whether the attendance of the medical practitioners before the Committee was intended as the opportunity for them  to explain issues of mental capacity to the Committee, or whether there was a proposal to  drop the requirements for a finding of mental defect.

Mr Basset answered that the Department had invited the practitioners to explain the difference between mental incapacity and intellectual disability. He asked that Dr Roffey explain the  difference between the terms 'mental defect' and 'intellectual disability'.

Dr Mark Roffey, State Psychiatrist, Department of Health, explained that 'mental defect'  is a vague term that was not used internationally by mental health professionals to refer to 'intellectual disability'. The Department of Health would recommend that the more commonly internationally-understood term of 'intellectual disability' be used. The term 'mental retardation' was, until recently, still being used by the American psychiatrists and in South Africa, although elsewhere in the world it was regarded as a judgmental term.

He clarified that 'intellectual disability' was used to refer to a person who had cognitive problems since birth, and was used by medical professionals to thus mean someone with long standing impairments in intellectual functioning since birth.

Mr W Horn (DA) asked what is meant by ‘serious’ danger or threat to members of the public or property in the Department’s proposed amendment to clause 77.  He asked if it would not be better to word the phrase to show that any danger to a person or member of public should rather compel the court to detain the accused.

Mr Horn further noted that section 77(6)(a)(i)(dd) is using the word 'appropriate'. With respect he pointed out that the word usually used was 'reasonable' and therefore asked whether this word should be substituted for 'appropriate'.

Mr Horn also pointed out that the term ‘designated health establishment’ has not been defined in the Bill. The term is defined in the Mental Health Care Act and the definition should be included in the Bill to avoid uncertainty.

Ms G Breytenbach (DA) - asked if it would not be prudent to specifically state in the Bill the composition of the panel and the fact that the panel will be appointed by the court. She was concerned that the composition of the panel may be compromised if it is put together taking into account personnel availability or shortage, and not the needs of the individual accused.

Mr B Bongo (ANC) said he was not clear on the difference between 'intellectual disability' and 'mental defect'. He asked the terms to be clarified from the academic and medical doctor’s perspective, cautioning that the Committee should avoid using terms that cannot be interpreted in practice. He also felt that too much discretion is being given to the court on the proposed amendment to section 77(6)  He proposed that there must be an objective test that the court can apply to make its decision.

Ms C Pilane-Majake (ANC) asked to what extent the proposals on Section 77(6) addressed the defects noted in the De Vos judgment.
 
Mr A Nxumalo (ACDP) also asked for clarity on the terms, as mentioned by Mr Bongo. He implored that legislation should not be too complicated and that the law must be simplified as much as possible for practical use by the people who apply the law every day.

Mr Basset responded that prior to the De Vos Judgment, the court, when faced with an accused person who could not understand criminal proceedings, had no option but send that accused to a mental hospital, detention facility or institution, irrespective of whether the person was guilty or not. The effect of the new section 77 will be that if the court believes that the accused person is incapable of understanding the proceedings, then the court will refer the person to a panel, who must assess the accused's mental status and submit a report to the court.

He added that in the past, if the accused had been charged with a serious offence such as murder or rape, the court was obliged to admit the person to an institution or prison. The Constitutional Court found this unacceptable, because it was essentially being restricted to an order that did not take into account the facts. Therefore the proposal out of the De Vos judgment was that the court discretion must be extended. He repeated that when there are concerns about the mental capacity of the accused, a panel will be appointed to advise the court on mental capacity. However, this will not give the court unfettered discretion. The court will make its decision based on the mental capacity of the accused person as supported by the panel’s report, the prosecution submissions and the accused person’s defence. The court will consider whether the person is able to understand the proceedings and/or able to appreciate the wrongfulness of his or her actions.

Ms Pilane-Majake asked why there was any need to amend the section, if the court would be advised by the panel when reaching a decision, presumably then doing what the court wanted to happen. In the Children's Court, there should be a probation officer who can explain the child’s circumstances. She asked what problem exactly this amendment was seeking to address.

Mr Basset answered that prior to the De Vos case, the court could only decide to refer the person to a facility or psychiatric institution, with no possibility of release of the accused under  any condition, irrespective of mental incapability.

Ms Carine Teunissen, Senior State Advocate, National Prosecuting Authority, explained that when an accused appeared before a court and the issue of whether s/he is fit to stand trial was raised then, depending on the case, a panel or a psychiatrist will be appointed to do the inquiry. The report of the panel or single doctor will be referred back to the court, who will then decide on the accused’s ability to stand trial. The court formerly had no discretion at all. However, the De Vos judgment indicated that it should have a discretion, especially when it comes to children or people with intellectual disabilities, to assess the most suitable response.

Mr Bassett said that the new discretion relates to the order that may be made by the court. An objective test has been built into sections 77 and 78. If an assessment has been done on the mental ability of a person, the panel will report to court as state witness for the state.

He explained that the reason for the proposal that the term 'mental defect' be removed and replace with 'intellectual disability' is largely to remove the outdated, derogatory term and rep[lace it with a more internationally accepted term. Section 27 had indicted that it would fully support that change.

Mr Bassett said that it will not be necessary to define the term ‘designated health facility’ in the CPA, as it is already defined in Mental Health Care Act. 

He said that the Department would be guided by the Committee as to whether it wished to replace 'appropriate' with 'reasonable' but the Department would not object to the replacement as it is an issue of practice in court. It is up to the court to decide on what constitutes ‘a serious threat’, based on the case presented by the prosecution,. He reminded Members that 'threat' covers anything from verbal to physical threats, with the word  'serious' measuring the extent of that threat. The panels consist of a single expert for less serious offences. For  serious offences, the panel will consist of two psychiatrists and a third appointed at the request of the accused and a clinical psychologist.

Dr Roffey explained that the importance of the concept 'intellectual disability' is that it refers to an impairment in reasoning, memory and understanding since birth as a result of something that happened in utero or at birth. The disability becomes apparent earlier in life and there are bold categories when assessing a person.
-whether the person is able to understand court proceedings;
- whether the person appreciates the wrongfulness of the actions of which they are accused

All these tests are based on the person’s intellectual disability.

Ultimately it would be up to this Committee to change the wording from 'mental defect' to 'intellectual disability' but from a medical point of view, 'mental defect' actually means the same as  'intellectual disability'. The connotation was important and 'intellectual disability' is internationally recognised.

Dr Motshekga said he had raised the point before, but this Parliament was making laws that would, in practice, impact mostly on African people, who are very spiritual and/or have experiences which many people in the west do not know about, no matter that they might have been trained at universities. He asked who then Parliament was legislating for – the majority, or the minority, He expanded that the term “psychology” had its derivation from psych – meaning the soul or spirit, mens – the Latin for mind and intellect was used in is Greek derivation to include 'mind and thought' . He questioned what exactly the difference then in meaning is between  intellectual disability and mental defect? The term 'reasonably' is the standard used in law, as explained in the Ntombela case of 1963, where the court laid down details on what constitutes 'reasonable'. However there is no standard for ;appropriate' to be used. Terminology is a problem. Spiritual people talk about 'mind body and soul ', which is the same as intellect. Lawyers are not qualified to understand the issues of soul and the spirit, but those trained in humanities are best placed to know the sociology of the person. He suggested that the time might be ripe to train lawyers in psychology, to understand the importance of the composition of a panel. It was costly to put together a panel and it involves psychiatric hospitals and institutions where the majority of employees are white people from white culture, targeting African people whose culture was obliterated. He asked how justice can be delivered or if the delivery of justice is a mere formality.

Many people are sent to mental hospitals because they are spiritually possessed and these people are imprisoned because the system does not understand their culture. The law should take account the fact that it is being legislated in Africa, for Africans, so the system must accommodate African beliefs. South Africa has traditional healers and churches who deal with people with spiritual or mental issues, and he asked why they were not working in psychiatric hospitals? He lamented that when an African comes in conflict with the law, the law is applied strictly without taking into account the history and cultural context of Africa. The system as it stands will only provide jobs for psychologists and it is a big industry, does it deliver what it is meant to deliver? He said it can be argued that consultations cannot be complete until the traditional leaders are brought on board to hear their experiences as to whether this legislation will  include and serve the people of the country. He asked the Department to explain how the consultation done with one cultural group suffices without taking into account the interests of the people.

Ms Pilane-Majake said there are other laws, committees and departments who are capable of defining the terms ‘mental defects’ and ‘intellectual disability’. She asked the Department to refer to what is in the Mental Health Act and if the relevant departments wanted to challenge what is in those Acts, then they should propose amendments. This would be preferable to having external experts come to the Committee to explain the medical terms. If the Committee were to proceed on the path being proposed by the Department, there may be inconsistencies with other Acts, which might mean a court sending back the legislation. She was not convinced why the presiding officer should have a wide discretion. 

Dr Motshekga stated again that lawyers are not competent to deal with psychological matters. In addition, the law should not give them a discretion without setting standards that those lawyers will use, particularly when it is a multi-disciplinary issue. He proposed that the Department should take the proposals to an inter-departmental workshop to get consensus on the terms, rather than ask this Committee to consider the proposal in isolation. 

Mr Basset answered that there was a task team who looked at the Bill and the Department attended a conference involving psychologists and psychiatrists, although the Department did understand that there will be no easy answer on the questions raised by the Committee. The proposed amendments were arrived at after long negotiations following the De Vos case.

Mr Basset agreed with Dr Motshekga about the curriculum in universities but said he could not respond on that question.

He confirmed that the legislation is not giving the judge unfettered discretion, and similar to any other case before the court, the court will be making a decision based on the evidence before it and what the defence lawyers have presented. In the case of an accused with a mental disability, the court will make an order informed by evidence presented before it by experts, and the prosecution and defence. He said that the Department of Health supports the proposal to replace 'mental defect' with 'intellectual disability'.

Dr Nyameka Dyakalashe, Clinical Psychiatrist, Valkenberg Hospital, was introduced; she served on the panel and was a psychiatrist in forensic mental health Issues. As an African doctor working in mental health services, she personally welcomed the proposal to include traditional healers into the Department of Health, although she noted that if they were to be introduced formally to hospitals they, like other medical professions, would have to be regulated under the Health Professions Council of South Africa. They could then be appointed to panels or in hospitals. She agreed that there were challenges between traditional and modern practices and said that in the former areas of Transkei, medical hospitals are struggling with a huge problem of “bush circumcisions”, where the practices of traditional healers and surgeons were in conflict.

The Acting Chairperson interjected at this point to say that the practice was not “bush circumcision”; it was done through cultural initiation schools.

Dr Motshekga said Dr Dyakalashe’s comments are clear evidence of the inappropriateness of the educational system, it is a problem if an African woman from the Transkei refers to initiation ceremonies as “bush”.

Dr Dyakalashe continued her answer. She noted that she would see it as positive for the system to recognise traditional healers and western healers, and if the bodies can work together to resolve the issues of mental illness. She is one of the black Africans working in the psychiatric industry, and noted that although there were very few black professionals and there were many white nurses and doctors the teams work as a multi-cultural team. When the panel is appointed by the court, it too works as a team, with social workers from many different backgrounds. She stated that a person cannot be diagnosed as having a mental disorder if the disease he or she is manifesting is cultural or in keeping with spiritual beliefs.

The Acting Chairperson pointed out that an association under the Traditional Health Practitioners Act regulates traditional healers.

Dr Motshekga said the concern is not just about putting black faces in hospitals, but the content of the discipline. For example an African trained in China will hold Chinese precepts, whereas one trained in a Western university in Africa would be taught Western medicine. The issue is therefore what is taught to both black and white students in the Universities.

Mr Bongo said the Department should understand the background of the concerns raised in the De Vos case. He still proposed an objective basis, with guidelines, to put checks and balances in place, and avoid open discretion. He proposed that if there was to be proper consultation on mental defects, perhaps the Committee must call other professionals to address the Committee. He also agreed that the Bill should include the traditional definitions, as the majority of South Africans live in the rural areas, and even those living in towns would consult traditional healers in the rural areas.

Ms Breytenbach expressed concern that if the amendments are enacted as proposed, the panel composition may be compromised and reduced.

Ms Pilane-Majake was concerned that the Committee had not been brought on board in the process that preceded the amendments; the Committee neither attended nor has notes of conferences, workshops and inter-departmental panel reports. She suggested that the inter-Departmental panel should appear before the Committee to explain the amendments. She expressed concern that the Committee seemed now to be spending time considering issues that were not ready, and were not a priority instead of concentrating on other important legislation.

Mr Nxumalo agreed with the proposal for an inter-governmental discussion on the issues raised in the Bill. He agreed that the issue of mental issues must be defined taking into account traditional African diseases, saying that he knew of a young girl who would scream at night, but be fine the next day. She would be described as 'mentally disabled' under the Act, and he agreed that the definitions should not be based on western understanding of mental illness. The comments made on initiation ceremonies shows that is it important to incorporate traditional leaders in the drafting of the amendments.

Mr Basset agreed and asked that he be advised of a convenient date for the inter-departmental panel to appear before the Committee.

Ms Pilane-Majake asked that the contingent should include mental health experts who are ready to define ‘mental illness’

Dr Motshekga expressed concern that once again, similar to 14 March, the Committee was being asked to make a decision without having all information. He stressed that hearsay evidence could not be accepted. For instance the Committee has not been given the report from the conference nor has it been given the report from the inter Departmental panel. Parliament is informed of all background preparations to any amendment or bill and hence the reports must be tabled.

Mr Basset noted that the Department did not organise or host the conference, but attended as a matter of interest to glean information as background to the CPA amendments. In answer to further questions, he said that the Department of Justice organised the inter-departmental panel but the conference was organised by the Department of Health.

The meeting was adjourned.