The constitutionality of detaining persons unfit to stand trial: De Vos NO v Minister of Justice and Constitutional Development
Authors: Khan Franaaz 
Published: November 2022

Section 12(1) of the Constitution of the Republic of South Africa 1996 (‘the Constitution)’ protects the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause (s 12(1)(a)), and the right not to be detained without trial (s 12(1)(b)). The rights of arrested, detained and accused persons are in turn protected by s 35 of the Constitution, which provides that every accused person has the right to a fair trial. This requires not only a physical presence in court, but also a ‘mental presence’ and, in particular, the person concerned must be able to understand the proceedings so as to be able to make a proper defence (E Du Toit et al Commentary on the Criminal Procedure Act Juta Publishers, 2015, ch13-p5 and further authorities cited therein). A person who cannot do this, is considered unfit to stand trial. Section 77 of the Criminal Procedure (Act 51 of 1977 ) (‘the CPA’) deals with the treatment of an accused who is unfit to stand trial due to a mental illness or intellectual disability (the generic term ‘mental disability’ will be used to refer to both types of mental condition, except where it is necessary to distinguish). While such an accused cannot be tried, they are not acquitted and discharged, since s 77(6) of the CPA enjoins the court to determine whether the person concerned committed the actus reus of the offence with which he has been charged. If the court finds that the accused committed an act of murder, culpable homicide, rape, compelled rape, or some other offence involving serious violence, or if the court considers it in the public interest, s 77(6)(a)(i) of the CPA further enjoins it to order the accused’s detention in a psychiatric hospital or prison, pending release by a judge in chambers, in terms of s 47 of the Mental Health Care (Act 17 of 2002) (‘the MCHA’). If the court finds that the accused committed some other form of unlawful act, or no unlawful act at all, s 77(6)(a)(ii) of the CPA enjoins it to commit the accused to an institution as an involuntary mental health care user, as contemplated in s 37 of the MCHA. The provisions of the section are peremptory, in that, once the court has found the accused unfit to stand trial, it is left with no option but to order their detention in one form or another. The provisions of s 77(6)(a) differ from those of s 78(6) of the CPA, which apply when an accused has been tried and found not guilty by reason of pathological criminal incapacity. In terms of s 78(6)(b), the court, as an alternative to ordering the accused’s detention, is empowered to order his release, either on appropriate conditions, or even unconditionally. These options are not available in terms of s 77(6)(a)(i) or (ii). In essence therefore, s 77(6)(a) provides for  detention without trial on the merits of the charge. There is only what could be termed a trial of the facts. Consequently, concern has been expressed regarding the constitutionality of these provisions. The constitutionality of s 77(6)(a)(i) and (ii) was in fact recently challenged in De Vos NO v Minister of Justice and Constitutional Development CCT 150/14) [2015] ZACC 21 (26 JUNE 2015).