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MENTAL CAPACITY (S 77-79)
 An enquiry should be made into the mental state of accused if, at
anytime after the commencement of the trial it appears or is
alleged that :
 The accused is not of sound mind or
 It is uncertain whether he is capable of understanding the
proceedings so as to make a proper defence (procedure = s
77-79)
 Investigation is conducted by superintendent of a psychiatric
hospital or his designee
Capacity to Plead
 Strictly speaking there is no plea of ‘not guilty by reason of
insanity’ under s 106
 Basic premise of our law is that accused must be able to follow
proceedings against him, to instruct his legal adviser and to make
a proper defence
 An accused may therefore not be tried while he is incapable of
understanding the proceedings
 Accused must be fit to stand trial – understand proceedings and be
capable of making a proper defence
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 Lay court relies on guidance of expert evidence, obtained as laid
out in CPA procedure, in order to make a finding
 Mental Illness or Defecct:
 S 1 of Mental Health Care Act 17 of 2002 defines ‘mental
illness’ as ‘a positive diagnosis of a mental health related
illness in terms of accepted diagnostic criteria made by a
mental health care practitioner authorized to make such a
diagnosis’
 Indication of a pathological disturbance of the accused’s
mental capacity (S v Stellmacher 1983 (2) SA 181 (SWA)
Provisions of the CPA
 S 77 fitness to stand trial
 S 78 criminal responsibility
 S 79 provides mechanisms whereby the theoretical provisions of s
77 & 78 are accomplished in practice
 Must be read with the provisions of the Mental Health Care Act 17
of 2002
Mental Capacity s 77 : Allegation that accused is not fit to stand
trial:
 Allegation can be made at any stage of trial:
 Usually raised by defence before trial begins
 Can be raised during trial or after conviction
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 ‘the court shall direct that the matter be enquired into and be
reported on’ by authorised specialist – superintendent of
psychiatric institution or psychiatrist
Observation and Report
 Accused is sent for observation in a mental institution once court is
satisfied of a factual or medical basis laid for the allegation
 Any previous psychiatric reports should be placed before the trial
court
 Once factual or medical basis is laid out, the court is obliged to
direct an enquiry under s 77, 78 & 79
 Accused may be admitted to psychiatric hospital for observation
 Expert must compile a report which includes:
 Diagnosis of mental condition of the accused
 Finding as to whether accused is capable of understanding
the proceedings as to make a proper defence
 If report is unanimously accepted by all parties court may
determine the matter without hearing further evidence
 Where the report is not unanimously accepted by both parties
court may allow further expert testing of accused and call then call
upon expert witnesses to be examined and cross-examined before
reaching its decision
Lack of Mental Capacity
 Court orders that information and evidence be placed before it to
determine whether the accused has committed the act in question
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– accused cannot be convicted or acquitted in this enquiry, then
the court directs that accused be:
 Detained in a psychiatric hospital or prison – this applies to
serious & violent offence e.g. murder
 Admitted and treated in an institution - applies to non-violent
offences and treated ito s 37 of Mental Health Care Act
 Person who is declared a state patient is not acquitted or convicted
 Purpose of declaration as a patient is not to punish – it is a
measure in the interests of society
 If court makes finding after conviction, the conviction and plea are
set aside
 Accused shall not be entitled to acquittal or conviction in respect of
the charge
Where accused regains mental capacity
 He may be prosecuted and tried for the offence in question
 Prosecutor or DPP has the power ito s 77(7) to resuscitate the
case
S 78: Allegation that accused was not criminally responsible
 Criminal responsibility is one of the basic essential prerequisites
before the accused can be held liable for his criminal act. (forms
part of mens rea)
 Section 78 (1) provides that :
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 “A person who commits an act or makes an omission which
constitutes 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 act or omission; or
(b)
of acting in accordance with an appreciation of the
wrongfulness of his or her act or omission,
shall not be criminally responsible for such act or omission.”
 A court can also find absence of criminal responsibility where there
is no mental illness, and in such case the provisions of s 78 do not
apply.
 The law assumes that genuine mental illness is always
unintentional.
 In the case of anger, drug impairment and automatism, the
accused must show that the relevant state of mind was
involuntarily incurred before such state will be effective as a
defence.
 As a result the Criminal Law Amendment Act 1 of 1988, Section 1
renders an offence committed in a state of intoxication, which
would not be an offence because of the absence of the requisite
mens rea , an offence if the following requirements are met—
(a)
the person consumes or uses any substance which impairs
his faculties to appreciate the wrongfulness of his acts or to act in
accordance with that appreciation
(b)
knowing that such substance has that effect and
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(c)
while his faculties are thus impaired commits an act
prohibited by law (but for which he is not liable because his
faculties were impaired).
Section 77(8), (9) and (10): Appeal and Review
 In all cases where the accused is found fit to stand trial he has a
right of appeal after conviction.
 If it is found that the accused is not fit to stand trial he has a right of
appeal if he did not allege that he was not fit to stand trial.
Review mechanism under s 47 of Mental Health Act
 Where a person was incarcerated in a psychiatric hospital (under s
77 (6) & 78 (6)) and declared State Patient an application can be
brought for a discharge of such person
 This review is done by a higher court than the one that made a
decision under s 77 (6) or 78 (6).