‘Landmark judgment’ for mentally disabled

Cape Town -

The Western Cape High Court has given Parliament two years to fix a piece of legislation that deals with the fate of mentally disabled people who have been accused of crimes.

Two sub-paragraphs that form part of the Criminal Procedure Act were declared unconstitutional on Friday.

Judge Bennie Griesel ordered, however, that the declaration was not retrospective and that its effect was suspended for 24 months to “afford the legislature an opportunity to cure the invalidity”.

At the centre of the matter are two people who were alleged to have committed crimes but were declared unfit to stand trial because they were not able to understand basic court proceedings.

One, a 35-year-old man with Down Syndrome, was arrested and charged last year over the rape of an 11-year-old girl.

The other has a severe mental disability, and was arrested and charged with the murder of a 14-year-old girl in 2005 when he, too, was 14.

Neither matter has been finalised.

The legal challenge was brought to court by their respective mothers and representatives with the assistance of Legal Aid SA, which has hailed the outcome as a “landmark judgment” for people with mental disabilities.

Among Judge Griesel's findings was that section 77(6)(a) of the Criminal Procedure Act dictated a “predetermined and mandatory” outcome for people with mental disabilities.

It deprived the presiding judicial officer of the discretion to consider the specific facts of each case and, in appropriate cases, to order the conditional or unconditional release of the accused person.

One of the sub-paragraphs under this section obliged the court - “automatically and in every case” - to order that the accused person be detained in a psychiatric hospital or prison for an indefinite period until directed otherwise by a judge.

Judge Griesel believed this could give rise to an “arbitrary and irrational result”, amounting to an infringement of an accused person’s constitutional right to freedom, as well as their security.

He said it was universally recognised that people of unsound mind may, in suitable circumstances, be detained involuntarily.

But it was equally well recognised not every person with a mental illness or defect was a danger to society or had to be held in an institution.

“And herein lies the rub because section 77(6)(a) does not require, or even permit, the court to enquire into either the potential danger to society posed by the accused person or the individual needs or circumstances of such a person,” the judgment read.

Judge Griesel made certain adjustments as to how the sub-paragraphs would read during the period of suspension.

He also ordered that the prosecutions against the two men involved would be stayed pending the confirmation of the order by the Constitutional Court.

leila.samodien@inl.co.za

Cape Times