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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

 

CASE NUMBER: DR110/20004

                                        MAGISTRATES’ COURT NUMBER: 23/714/2024

REVIEW NUMBER: 06/2024

In the matter between:

 

THE STATE

 

and

 

L[...] M[...]                                                                                    ACCUSED

ORDER

 

1.          The order of the Learned Magistrate detaining L[...] M[...] at Westville Prison Hospital for an indefinite period (until a bed in a psychiatric hospital becomes available) is hereby reviewed and set aside.

2.          Upon release from detention, L[...] M[...] is to be handed over to the investigating officer for CAS 620/1/2024 Durban Central (Constable F Zulu) and to be forthwith brought by the said police officer, or any other designated policer officer, to appear before the Durban Magistrates’ Court under case number 23/714/24 and he is to be dealt with in terms of Section 53(2) of the Mental Health Act, 2002 which deals with the transfer of mentally ill prisoners from prison to a designated health establishment.

JUDGMENT

BRAMDHEW AJ (RADEBE J concurring)

 

[1]             This matter was referred for special review by the Chief Magistrate, Durban, on 18 November 2024.

 

[2]             The accused was charged with one count of assault with intent to do grievous bodily harm, which allegedly took place on the 14 January 2024. He was arraigned before the Magistrate’s Court on the 17 January 2024. On that day, the Public Prosecutor requested that the Court adjourn the matter to 23 January 2024 for the purpose of profiling, for legal representation and bail considerations. The accused was, thereafter, legally represented by a Legal Aid Practitioner.

 

[3]             After subsequent adjournments, the accused, still legally represented, was assessed by the District Surgeon at Addington Hospital on 15 February 2024. On 23 February 2024, bail was applied for and was refused. The Public Prosecutor requested that the accused be sent to Fort Napier Mental Hospital for assessment.

 

[4]             On 3 September 2024, the psychiatric reports of two psychiatrists from Fort Napier Psychiatric Hospital were submitted, wherein the accused was declared unfit to stand trial. On 13 September 2024, after at least two further adjournments, the court a quo  issued an order in terms of section 77 (6)(a)(i) of the Criminal Procedure Act, 1977 (“the CPA”), declaring that the accused is not capable of understanding the proceedings due to mental illness or intellectual disability and directing that he be temporarily detained at Westville Prison Hospital as a bed was not immediately available in a psychiatric hospital. The grounds for this directive were that the accused poses a serious danger or threat to himself or members of the public. Such order encompassed that the accused is to be transferred when a bed becomes available and that the accused be admitted and detained until a further lawful order is given for his discharge. It is now more than two months since the order was issued.

 

[5]             It is apparent from the period of more than two months incarceration that there is potential for serious prejudice to the accused. Therefore, some kind of special review is warranted. Section 302 of the CPA relates to automatic review in cases where a sentence has been imposed, section 304 of the CPA pertains to special reviews in which a person has been sentenced, and Section 304A relates to the review of proceedings after conviction but before sentence has been imposed. In casu, the accused has been detained pursuant to Section 77(6). He is neither convicted nor sentenced.  Given that this court has the power at common law to exercise powers of review of the lower courts’ decisions, this matter is therefore subject to a “special review” in view of the serious potential prejudice to the accused.

 

[6]             In S v Ramokoka, Willis J, recognising the special review powers of the High Court, said[1]:

 

“[13] … A person detained in terms of section 77 (6) is not, in any generally understood legal meaning of the term “convicted”.

[14] The court does, however, have the power at common law to exercise review powers over the decisions of the lower courts in appropriate cases.”

 

[7]             The Chief Magistrate was, therefore, correct in referring case to the High Court for special review.

 

[8]             It does not appear from the record to what extent the court a quo complied with the requirement of section 79(1)(b) of the CPA, suffice to state that on 10 September 2024, proceedings in terms of section 77(6) of the CPA were conducted. Herein, the investigating officer testified and confirmed that the accused is charged with the offence of assault with intent to do grievous bodily harm.  The investigating officer testified that up to 10 September 2024, she had not been able to locate the complainant. There is also no witness/complainant statement.  There is, therefore, very limited evidence that the accused committed the offence in question.

 

[9]             The evidence of the investigating officer also reveals that the accused has had two previous cases against him reported in Johannesburg and that during January 2019, he was declared a state patient for walking on foot on the freeway under Vosloorus (CAS 88/09/2020).  The other arrest was for shoplifting, but this was later withdrawn. 

 

[10]         The proceedings were then adjourned to 13 September 2024 for a section 77 enquiry.

 

[11]         In the opening address on 13 September 2024, the following remark is recorded:

“..The matter is on today’s roll for a section 77 enquiry, it is for the Court to make an Order.”

 

 

[12]         The order in terms of section 77(6)(a)(i) of the CPA was then given, committing the accused to Westville Prison Hospital until a bed becomes available in a psychiatric hospital.

 

[13]         The order, as it stands, means that the accused will be detained for an indefinite period, as no provision for periodical judicial review of the accused’s detention has been made.  There is also no provision for psychiatric care of the accused whilst he is so detained.

 

[14]         Section 79(2)(a) of the CPA provides for committal of an accused person for a period not exceeding 30 days at a time as the court may from time to time determine.  In this instance, the accused has been detained in Westville Prison for a period of about 80 days as at the date hereof.  Even if the accused poses a danger to the public (which is not apparent from the limited evidence), the prolonged detention violates his constitutional rights to liberty.  There is no evidence that an MHCA 23 designation of Fort Napier Hospital, or any other health establishment, has been completed.

 

[15]         In my opinion, given the findings of the two psychiatrists, the accused is potentially dangerous, not only to himself, but to the general public, and the accused must be requisitioned back to the Magistrates’ Court for the purposes of completion of the MHCA23 form, designating a health establishment where the accused must be housed as a state patient for care, treatment and rehabilitation.

 

[16]         The following order is made:

 

1.     The order of the Learned Magistrate detaining L[...] M[...] at Westville Prison Hospital for an indefinite period (until a bed in a psychiatric hospital becomes available) is hereby reviewed and set aside.

2.     Upon release from detention, L[...] M[...] is to be handed over to the investigating officer for CAS 620/1/2024 Durban Central (Constable F Zulu) and to be forthwith brought by the said police officer, or any other designated policer officer, to appear before the Durban Magistrates’ Court under case number 23/714/24 and he is to be dealt with in terms of Section 53(2) of the Mental Health Act, 2002 which deals with the transfer of mentally ill prisoners from prison to a designated health establishment.

 

Bramdhew AJ

2 December 2024

 

 

I concur:

 

Radebe J

 

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