Deciphering the Composition of Section 79-Assessment Panels in the Criminal Procedure Amendment Act 4 of 2017
Section 79 of the Criminal Procedure Act 51 of 1977 provides for the appointment of mental health professionals to assess an accused’s fitness to stand trial and/or criminal capacity if the court orders such an enquiry in terms of sections 77 and 78 of the Criminal Procedure Act. In terms of section 79, one mental health professional must assess an accused charged with a non-violent offence, whereas a panel of such professionals must assess an accused charged with an offence involving serious violence.
The legislative provisions regarding the appointment of mental health professionals to a section 79-assessment panel are not without ambiguity. Section 79(1)(b) read with section 79(13) is problematic. Directives issued by the National Prosecuting Authority in terms of section 79(13) do not aid in clarifying the legal position either. The main point of contention is whether a section 79-assessment panel must consist of a minimum of two or three psychiatrists. This ambiguity creates challenges for presiding officers tasked with appointing section 79-assessment panels. When presiding officers appoint these panels incorrectly, it causes delays in the assessment process and the delivery of justice to the accused and the victim.
The court considered the interplay between section 79(1)(b) and section 79(13) in S v Pedro 2015 1 SACR 41 (WCC). The judgment highlights the need to clarify the position in the Criminal Procedure Act regarding the appointment of section 79-assessment panels. This case provided the impetus for the amendment of section 79 through the Criminal Procedure Amendment Act 4 of 2017.
This contribution explores the composition of section 79-assessment panels as provided for in the Criminal Procedure Act. Section 79(1)(b) and the seemingly contradictory provisions contained in section 79(13) are discussed. The S v Pedro judgment is discussed with a specific focus on the court’s interpretation of the interplay between these two provisions.
Following the S v Pedro judgment, the Criminal Procedure Amendment Act 4 of 2017 amended section 79. This contribution explores the clarifying provisions of the Amendment Act regarding the composition of assessment panels
Bateman 2005 SAMJ 208
Bateman C “The insanity of a criminal justice system” 2005 (95) SAMJ 208-212
Calitz et al 2006 SAJP 47
Calitz FJW et al ʺPsychiatric evaluation of offenders referred to the Free State Psychiatric Complex according to sections 77 and 78 of the Criminal Procedure Actʺ 2006 (12) SAJP 47-50
Kruger Heimstra Suid-Afrikaanse Strafproses
Kruger A Heimstra Suid-Afrikaanse Strafproses 7th ed (LexisNexis 2010)
Kruger Mental Health Law in South Africa
Kruger A Mental Health Law in South Africa (Butterworths 1980)
Pillay 2014 South African Journal of Psychology 377
Pillay AL “Could S v Pistorius influence reform in the traditional forensic mental health evaluation format?” 2014 (44) South African Journal of Psychology 377-380
Pillay 2014 South African Journal of Psychology 48
Pillay AL “Competency to stand trial and criminal responsibility examinations: are there solutions to the extensive waiting list?” 2014 (44) South African Journal of Psychology 48-59
Schutte 2013 SAJBL 64
Schutte T “’Single’ versus ‘panel’ appointed forensic mental observations: Is the referral process ethically justifiable?” 2013 (6) SAJBL 64-68
S v Lubisi 2003 (2) SACR 589 (T)
S v Pedro 2015 (1) SACR 41 (WCC)
S v Ramakoka 2006 (2) SACR 57 (W)
S v Thanda (140060, CA&R348/2014)  ZAECGHC 100 (7 November 2014).
Criminal Law Amendment Act 105 of 1997
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
Criminal Matters Amendment Act 68 of 1998.
Criminal Procedure Act 51 of 1977
Criminal Procedure Amendment Act 4 of 2017
Criminal Procedure Amendment Bill B2 of 2017
Judicial Matters Amendment Act 66 of 2008
South African Law Commission, as it then was (Project 89) dated August 1995.
Government Gazette.40946 of 29 June 2017
Department of Correctional Services (date unknown) http://www.dcs.gov.za/docs/landing/Discussion%20Document%20preceding%20Draft%20White%20Paper%20on%20Remand%20Detention_1.pdf
Department of Correctional Services (date unknown) Discussion Document on Management of Remand Detainees in South Africa http://www.dcs.gov.za/docs/landing/Discussion%20Document%20preceding%20Draft%20White%20Paper%20on%20Remand%20Detention_1.pdf accessed on 30 September 2016.
National Prosecuting Authority (date unknown) http://www.lhr.org.za/sites/lhr.org.za/files/atd_guidelines_.pdf
National Prosecuting Authority of South Africa (date unknown) Awaiting Trial Detainee Guidelines http://www.lhr.org.za/sites/lhr.org.za/files/atd_guidelines_.pdf (accessed 17 August 2016.
National Prosecuting Authority of South Africa 2014 https://www.npa.gov.za/sites/default/files/Library/Criminal-Procedure-Act-Mental-Observation-Directives.pdf
National Prosecuting Authority of South Africa 2014 Mental Observation Directives https://www.npa.gov.za/sites/default/files/Library/Criminal-Procedure-Act-Mental-Observation-Directives.pdf accessed on 22 February 2017.
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