Mentally ill said to be denied justice

The Constitutional Court yesterday wrestled with redefining the rights of the mentally ill found guilty of serious crimes such as rape and murder.

The Criminal Procedure Act states that if an accused is found to be mentally unfit for trial he must be confined to a psychiatric hospital or be otherwise incarcerated - even if the judge or magistrate believes that this would not be in the accused' s best interests.

In September, the Cape Town High Court ruled this provision of the act unconstitutional. The case before the Constitutional Court involves two cases that have been consolidated.

In one, a 35-year-old man with Down's Syndrome is accused of raping an 11-year-old girl.

In the other case a man allegedly killed a classmate with a compass in 2005 when both were 14. It is believed that relentless teasing triggered the attack.

Though the magistrate in the latter case felt the man was not a danger to society, he was compelled to send him to a mental institution.

The High Court found that the provision of the Criminal Procedure Act dealing with the mentally ill was unconstitutional and the matter was sent to the Constitutional Court for confirmation.

Yesterday Kameshni Pillay SC, for the man who allegedly murdered his classmate, argued that section 77(6)(a)(i) of the act was unconstitutional because it imposed an unjustifiable limitation on the right to freedom and security of a mentally ill person.

Pillay said it denied the mentally ill the right to a fair trial.

"There is serious violation of rights. Presiding officers should be given discretion."

The ministers of justice and correctional services, and of health, and the Western Cape director of public prosecutions have opposed the high court ruling.

Their lawyer, Dumisa Ntsebeza SC, argued that the law did allow the presiding officer of a court some discretion: "The provision may be read to give a presiding officer discretion not to order the detention of the accused."

Ntsebeza said that the primary purpose of detention was to provide for the treatment and rehabilitation of the accused.

Ntsebeza said the High Court, in finding the provision unconstitutional, failed to take into account the constitutional duty of the state to protect the citizenry.

"This is not a sentence. The person is going to be in a place of detention for treatment."

The court reserved judgment.