Cape Town - In a desperate attempt to defend the rights of her 35-year-old mentally disabled son, a Wesbank mother has lodged a Western Cape High Court application challenging legislation that deals with the manner in which mentally ill accused are dealt with in the criminal justice system.

The woman, who cannot be identified, believes that the legislation is unconstitutional because it infringes on the fundamental rights of mentally ill people accused of crimes, not giving them the benefit of the presumption of innocence.

Her son, who has Down Syndrome, was arrested last year after an 11-year-old girl accused him of rape. When he appeared in the Blue Downs Regional Court in April last year, he was referred to Valkenberg Psychiatric Hospital for observation in terms of Section 77 of the Criminal Procedure Act (CPA).

A panel of psychiatrists later concluded that he was not mentally fit to stand trial.

The panel also said that to declare the man a State patient would mean he was institutionalised indefinitely. This may not be fair or appropriate, unless there were other reports of inappropriate behaviour.

However, in May last year, the magistrate ordered that the man be detained as a State patient. The mother said the magistrate “somehow” found that her son had committed the rape. Even though here was no evidence linking him to the offence, the legislation stipulated that people with mental disabilities be detained at a mental institution when accused of a crime.

“I was told that my son would indefinitely be detained at a psychiatric hospital… I was shocked. My son has no history of antisocial behaviours… He also has no psychiatric diagnosis that could make him dangerous,” she said.

The matter was referred to the high court for a special review and, in September last year, the matter was referred back to the Regional Court. However, the mother said her son had still not been released from the psychiatric facility.

She sought legal advice and, in April, lodged an application in the high court asking that the applicable sections of the CPA be declared inconsistent with the constitution.


“I furthermore believe that this is a form of criminal stigmatisation and prejudice,” she said.

She has, however, asked the court to suspend the declaration of invalidity for two years to give Parliament time to look into the legislation.

The application was lodged against the ministers of justice and health, and the provincial director of public prosecutions.