A constitutional analysis of the court's (lack of) discretion in terms of Section 77(6) of the Criminal Procedure Act 51 of 1977

Abstract

Section 77(6)(a) deprives a judicial officer of his or her judicial discretion to consider the accused person s personal circumstances. If an accused person is not fit to stand trial and the court finds that, the accused committed a serious offence as contemplated in section 77(6)(a)(i) of the CPA then the court is obliged, automatically and in every case, to order that the accused to be detained in a psychiatric hospital or prison. If the court finds that the accused committed a less serious offence than one contemplated in subparagraph (i) or that he or she did not committed any offence then the court is obliged, automatically and in every case to, in terms of section 77(6)(a)(ii), order that the accused be institutionalised as an involuntary mental health care user. In the case of De Vos No and Another v Minister of Justice and Constitutional Development and Others 2015 1 SACR 18 (WCC) it was held that this deprivation amounts to the infringement of the constitutional rights of the accused persons, inter alia, to equality, dignity, freedom and security of the person as well as certain constitutional rights of children. Griesel J ordered that words be read-in to temporarily remedy this situation. The Constitutional Court did not confirm this order but did confirm that certain aspects of section 77(6) are unconstitutional and need to be addressed.