Cape Town - The country’s highest court is to decide on a case involving a piece of legislation that deals with the fate of mentally disabled people who have been accused of crimes.
The matter came before the Constitutional Court for confirmation proceedings on Monday.
This comes after the Western Cape High Court delivered a judgment in September that declared two sub-paragraphs that form part of the Criminal Procedure Act unconstitutional.
According to Judge Bennie Griesel’s order, the declaration was not retrospective and 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 of the criminal matters have been finalised.
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 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.
The Constitutional Court reserved judgment.
Cape Times