Zandile Mafe, the accused charged with Terrorism for setting Parliament on fire, was this week remanded in custody for mental observation. So what does this mean? This is done in terms of Sections 77, 78 and 79 of the Criminal Procedure Act. Basically what these sections say is that if it appears to the court that either the accused, by virtue of some mental defect, is incapable of following court proceedings, or that at the time of committing the offence, he was incapable of distinguishing between right and wrong, then his mental condition should be assessed.
Practically what will happen is that the accused is remanded in custody pending his assessment at a State mental institution. This inevitably causes delays as these matters take time. The court can only remand the case for 30 days at a time, but experience has shown that these matters often take much longer than that. Firstly there is often a wait for a bed to become available at the relevant institution to accommodate the accused. Then there may be a wait for the actual assessment to be done as there are only a limited number of State psychiatrists available and often many accused patients to be treated/assessed. The case could be remanded several times then for the assessment to be done and presented to court.
Apparently the accused has already been seen by a State District Medical Officer who has made an initial diagnosis of a possible mental defect which was handed in to court. This is just a preliminary report by a general practitioner and is not sufficient evidence on its own to assist the court in determining the accused’s mental state. So this report, plus a report from the prosecutor, which sets out what the background to the case is, what offences he is charged with plus a summary of the evidence available, is sent through to the psychiatrists dealing with the accused. They will then conduct their assessment and send through a detailed report to the court with a recommendation concerning his fitness to stand trial and/or his ability to appreciate the wrongfulness of his acts in committing the crimes.
This report is sent to the prosecutor who will read it out and hand it into court when the accused is back before court. If both the prosecution and the defence agree to the contents of the report, it can simply be handed in as part of the court record and the court will then act on the recommendations contained therein. If any party disputes the findings, then the psychiatrist that compiled the report will be called to give evidence and can be cross-examined on those findings. Once the report is accepted by court, a ruling will be made by the court on the mental condition of the accused. If the finding is that the accused is not mentally defective as described above, then the trial will proceed as normal.
If the court finds that the accused is indeed suffering from a mental condition that affects his ability to understand the proceedings then the charges will be withdrawn (since he has not pleaded yet) and he will be sent for treatment to a State mental institution where he will remain until either a judge orders his release or he has been suitably treated so that he can safely be let back into society. Once he has been rehabilitated, he can naturally be charged again for the same offences.
So there is not going to be any quick result in this case, as besides whatever investigations the State still needs to complete, this issue of the accused’s possible mental illness will cause several delays before the case is even ready to be set down for trial.