Cape Town - The Western Cape High Court is set to rule on a legal challenge involving the fate of mentally disabled people accused of crimes.

The matter relates to two people who were alleged to have committed crimes but were declared unfit for trial because they were not able to understand basic court proceedings.

One of them, 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, who has a mental disability, was arrested and charged with the murder of a 14-year-old girl in 2005. He, too, had been14 at the time.

Neither of the criminal matters have been finalised.

Two similar court applications were brought with the assistance of Legal Aid SA and were consolidated for hearing.

Judge Bennie Griesel on Wednesday heard arguments which centred on the constitutionality of a part of section 77 of the Criminal Procedure Act.

Among the contentions by the legal teams for the applicants - relatives and representatives of the two - is that one of the impugned provisions stated that if it was found on a “balance of probabilities” that an accused was not capable of understanding the proceedings so as to put up a proper defence, and that he or she had committed a crime involving serious violence, such as rape or murder, a presiding judicial officer was obliged to order the detention of the person in a mental institution or prison.

The effect of the provisions, it was further argued, compelled presiding officers to order the detention of all accused persons with mental disabilities “whether or not they committed an offence”.

Advocate Anton Katz SC, acting for the applicants in the matter of the man who was accused of rape, contended that the piece of legislation failed to give a presiding officer discretion to consider the specific facts of each case and, in appropriate cases, order the release of the person either unconditionally or subject to conditions.

Katz said the provisions resulted in the “stigmatisation” of individuals with mental disabilities. Where a mentally disabled person had a brush with the justice system, it appeared the approach was that “society must be protected from them”, he argued.

Advocate Kameshni Pillay said that at the heart of the case was a “category of people who are severely marginalised”. She said that on the basis of equality, each person required “individualised justice”.

However, advocate Dumisa Ntsebeza SC, acting for the respondents - including the ministers of health and justice and constitutional development - argued that the legislative framework that governed the procedures for the treatment of accused people with mental disabilities was with the intention of protecting their rights and interests.

Down Syndrome South Africa and Cape Mental Health also made submissions as “friends of the court”.

Judge Griesel reserved judgment.

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Cape Times