If someone is declared unfit to stand trial because of a mental insufficiency, what should happen to that person? That’s the issue at the heart of an appeal to be heard at the Constitutional Court next week. From both sides of the courtroom lawyers will depict the present system in stark terms.
On the one hand, expect to hear that it’s an unconstitutional horror show and that the treatment of people with mental health deficiencies by the criminal justice system is grossly discriminatory.
On the other hand, the state – lawyers representing the ministers of justice and constitutional development and of health, as well as the director of public prosecutions – will argue that the present scheme is rational, constitutional and fair, intended to protect society and individuals whose mental impairment make them unable to stand trial or even to be rehabilitated.
The appeal concerns two people, both found mentally unfit to be tried. As the law stands, magistrates hearing such cases have no discretion about what to do next: they must order the accused person to be detained, even if the presiding officer believes that this is not in the best interests of the person accused. The magistrate may not consider the accused as an individual or whether detention is an appropriate option. And it’s this particular issue that is being challenged as unconstitutional.
A look at those involved in the appeal illustrates just how problematic it may be for a trial to have to end with a detention order, pending a release order at some future date if a court believes it appropriate.
Mr A*, now 35, was born with Down’s syndrome. He was charged with raping a girl who was 11 at the time and who reported the incident five or six years afterwards. He now lives with his mother.
Mr B*, was originally charged with murder: in 2005, when he was about 14, he stabbed and killed a girl of about the same age. He was initially charged in the regional court but was referred for examination by three doctors who all agreed he wouldn’t be able to understand basic court procedures.
Mr B’s mental condition was caused by a car accident when he was about five and he has the mental age of a six-year-old.
In an interview with the Mail & Guardian, Achmed Mayet, of the Legal Aid South Africa’s impact litigation unit, explained what happened in Mr B’s case.
“As I understand it, he was being teased at school and he lashed out. They were working with compasses in class and the point of the compass pierced another child’s neck.”
Mayet, who was working for the Legal Resources Centre before joining the impact litigation unit, heard about the case after the presiding magistrate said someone needed to help with the matter. The magistrate said that he had no choice but to have the youngster committed to Valkenberg Hospital, a specialised psychiatric institution in Cape Town.
“The magistrate apparently felt that the child was not a danger to society,” said Mayet.”We took the point that the magistrate had no discretion about what would happen to [Mr B]. It was obligatory for the magistrate to send him to Valkenberg, even if it was not in [Mr B’s] best interests.”
Since then, the impact litigation unit has pursued the issue.
“It’s a test case for a lot of people. There are very few of these places [psychiatric hospitals where someone unfit to stand trial because of mental incapacity can be sent, often indefinitely]. There are never enough beds and, in some cases, the person has to stay in prison until a bed eventually becomes available. They can easily get lost in the system.”
And this potentially permanent detention is compulsory in cases in which a person has not been convicted and who never will be. Someone who may be innocent, who may be guilty, or who may be guilty of a crime for which the punishment in someone without mental disability would not involve imprisonment.
What alternatives to detention are possible in cases like that of Mr B’s? According to Mayet, after he was seen and assessed by an educational psychologist, he now regularly attends”school” in a highly structured environment and then goes back home to his mother.
But the point that lawyers acting for both men will make to the Constitutional Court is that, as the law stands, the magistrate cannot take any individual circumstances such as those of Mr B into account. Detention is the only option.
Their view was upheld by the high court in Cape Town earlier this year when Judge Bennie Griesel ruled that the law was unconstitutional in part because it gave no discretion to the presiding officer.
As in all cases where a high court finds a law infringes the constitution, the Constitutional Court must reconsider the matter, which it is scheduled to do on November 17, and make a final decision.
Lawyers for the two accused men want the court to confirm that section 77 (6) (a) (i) and (ii) of the Criminal Procedure Act must go.
They will argue it is unconstitutional for the law to oblige a presiding officer to order the detention of any accused “in a mental institution or prison” if it is found on a balance of probabilities that the accused was not capable of understanding proceedings and that the accused had committed the crimes of murder or rape. It is a breach of the Bill of Rights that no discretion is given to the presiding officer dealing with such an accused who is incapable of understanding proceedings.
Cape Mental Health, admitted as a friend of the court in the matter, agrees with the lawyers who want the law changed, saying that, even when someone with mental disabilities commits a dangerous offence, the person is not necessarily a danger to others and may not need to be detained.
Moreover, it is more likely that mentally ill people will be victims rather than perpetrators of violence.
The organisation says the evidence does not support the state’s apparent view that mentally ill accused people necessarily pose such a threat to society that they should be automatically jailed or institutionalised indefinitely.
The state’s position is that the high court failed to take the state’s duty into consideration. The disputed sections are both constitutional and rational, they say, because they serve the legitimate governmental purpose of protecting and securing the well-being of the people of South Africa.
The state’s argument will be that the detention of someone with mental disability serves four purposes: to protect the community from harm by the accused; to protect the accused from harm by himself or herself; to protect the accused from stigmatisation by others; and to provide “treatment, care and rehabilitation” of the person with mental disability.
*Names have been changed to protect identities.