Concourt debates dealing with mentally ill accused

SHOULD an awaiting-trial prisoner with a mental illness or disability be automatically detained at a prison or psychiatric facility before a trial has proved his or her guilt?

This complex question was debated at the Constitutional Court yesterday, with the matter travelling across the country in a bid to change the Criminal Procedure Act.

Two major criminal cases against mentally disabled young men have sparked the potential change in legislation.

In 2005, a 14-year-old with permanent brain damage was charged with the murder of a teenage girl of the same age. Two specialist psychiatrists and a clinical psychologist determined that the teenager was mentally disabled and would not be able to follow court proceedings.

The second case was of a 35-year-old with Down syndrome who allegedly raped an 11-year-old girl. Psychiatric professionals were unanimous in declaring the man unfit to stand trial. The 35-year-old was ordered to be kept in a mental facility pending the outcome of his trial.

It was in the subsequent Western Cape High Court proceedings, in the second matter, that Judge Bennie Griesel said it was unconstitutional to detain such prisoners before their guilt could be proved. He added that under the Criminal Procedure Act legislation, a judge or magistrate was obligated to do so if following the letter of the law, and that needed to be changed.

At the Concourt yesterday, Judge Griesel’s judgment was under intense scrutiny by lawyers representing the min-

‘Detention is not meant as imprisonment’

isters of health and justice and the Director of Public Prosecutions in the Western Cape.

Advocate Dumisa Ntsebeza SC, for the government, argued that trial courts have discretion in choosing whether to detain mentally disabled awaitingtrial prisoners, meaning magistrates weren’t necessarily obligated to do so.

The lawyers representing the two accused and their families had originally argued that detention in a psychiatric hospital or prison was inhumane, and not constitutional, if only for the purpose of protecting society from potential danger.

However, Ntsebeza insisted that the facilities were meant not only for detention and to keep the accused from harming himself or others, but also to care for, treat and rehabilitate mentally ill accused.

Deputy Chief Justice Dikgang Moseneke asked whether such detention or imprisonment must always ensue. He cited an example, asking whether it was humane for a court to send a mentally disabled per- son who stole an apple to months of involuntary mental examination or imprisonment.

Ntsebeza argued that the legislation applied only to those who had committed more serious crimes, but ultimately admitted the State believed that detention should be the first option in even minor crimes.

He insisted detention was specifically for treatment, and not meant as imprisonment.

Chief Justice Mogoeng Mogoeng described the idea that, with the reading of the Criminal Procedure Act legislation, a court being obliged to detain such a person without full medical understanding of the individual case was “a robotic way of doing things”.

The Concourt will hand down judgment at a later date.