The unfit accused in the South African criminal justice system: from automatic detention to unconditional release.

Abstract

Section 77 of the Criminal Procedure Act 51 of 1977 sets out the orders that a court can make after finding an accused unfit to stand trial on account of his mental illness or intellectual disability. All the orders result in detention of the unfit accused in prison or a psychiatric institution (depending on the nature of the charges against the accused) in terms of the Mental Health Care Act 17 of 2002. The court could not consider the treatability of the accused’s condition or any individual circumstances of the accused before ordering such detention. Section 77 was recently amended by the Criminal Procedure Amendment Act 4 of 2017. The Amendment Act resulted from the Constitutional court’s judgment in De Vos NO v Minister of Justice and Constitutional Development 2015 (2) SACR 217 (CC) where the court found, inter alia, that such limited orders deprive the court of its discretion to craft an order that is suitable for the particular unfit accused. The court ruled on the constitutionality of detaining an unfit accused in prison or a psychiatric institution and found some provisions of s 77 that facilitates such detention, unconstitutional. The Amendment Act brings s 77 in line with the Constitution. This contribution explores the orders available to the court before and after the amendment of s 77 and conveys the crux of the court’s judgment in the De Vos matter pertaining to the unconstitutionality of certain provisions of s 77. It concludes that the amendment bolsters, in particular, the unfit accused’s right to freedom and security of the person as the court may now order the conditional or unconditional release of the unfit accused where appropriate.