CCT150/14

[2015] ZACC 21

2015 (2) SACR 217 (CC)

2015 (9) BCLR 1026 (CC)

Leeuw AJ

17 November 2014

26 June 2015

http://hdl.handle.net/20.500.12144/3766

Application for confirmation of the order of the Cape Town High Court: De Vos N.O and Another v Minister of Justice And Constitutional Development and Others; InRe: Snyders and Another v minister of Justice And Constitutional Development and Others (4502/10, 5825/14) [2014] ZAWCHC 135; 2015 (1) SACR 18 (WCC); [2014] 4 All SA 374 (WCC) (5 September 2014).

Criminal Procedure Act 51 of 1977 — section 77(6)(a)(i) — capacity of accused to understand proceedings — constitutionally invalid to the extent that it mandates the imprisonment of an adult accused person — and to the extent that it mandates the hospitalisation or imprisonment of children Criminal Procedure Act 51 of 1977 — section 77(6)(a)(ii) — capacity of accused to understand proceedings — constitutionally invalid — to the extent that it mandates the institutionalisation of accused. Application for the confirmation of an order of the High Court, Western Cape Division, Cape Town declaring section 77(6)(a)(i) and (ii) of the Criminal Procedure Act 51 of 1977 (CPA) inconsistent with the Constitution on the basis that it infringes an accused person’s constitutional rights to equality, dignity, freedom and security of the person, as well as children’s rights. The Court held that section 77(6)(a)(i) was inconsistent with the Constitution and invalid to the extent that it provides for compulsory imprisonment of all accused persons and compulsory hospitalisation of children. Presiding officers should be afforded discretion when dealing with children so as to ensure that detention is undertaken only as a last resort and for the shortest period possible. However, the Court found that insofar as section 76(1)(a)(i) requires the mandatory hospitalisation of adult accused persons who have been found to have committed a serious offence, it was a precautionary measure that was rational to guarantee the care of the accused and the safety of society. But section 77(6)(a)(ii) was inconsistent with the Constitution and invalid as it prescribes that an accused person who has committed no act, or a minor offence, be institutionalised, regardless of whether they are likely to inflict harm to themselves or others and do not require care, treatment and rehabilitation in an institution. This violates their freedom and security of the person. The Court suspended the order of invalidity for a period of 24 months to allow Parliament to remedy the defects. The order did not operate retrospectively. Judgment: Leeuw AJ (unanimous).