The Appellant was charged with two counts of murder for the killing of a woman and her granddaughter. He was convicted and sentenced to life imprisonment on both counts by the trial court and now appeals against both his conviction and sentence.
At the appeal, the main issue was not whether the Appellant had stabbed and killed the two deceased but whether the State had proved that the Appellant had the requisite mental capacity at the time he committed the offences. It was contended that the trial court had failed to direct that his mental state be enquired into and reported on in accordance with the provisions of the Criminal Procedure Act 51 of 1977 (the Act).
The defence in the trial court requested that the Appellant be examined by a psychiatrist in order to determine his mental state at the time the offence was committed. The trial Judge allowed this and the Appellant went for testing. The report submitted to the court stated that the Appellant has a history of one admission at a psychiatric hospital and has periodically received Largactil medication (treatment for schizophrenia and other mental illness), however, after interviews with the Appellant, the doctor was not able to elicit acute or residual symptoms of mental illness and the Appellant was declared to be fit to stand for trial. The trial then proceeded and each party argued its case. It later became apparent that the Judge still had concerns about the Appellant’s mental capacity in that the court called on the investigating officer (I.O) to testify about his observations of the Appellant after the defence closed its case. The I.O testified that he had no reason to suspect that the Appellant was ‘mentally incapacitated’.
In the trial court judgment on the merits, the trial court Judge referred to and relied on the psychiatric report filed and in particular, the conclusion that the Appellant was fit to stand trial and that there was no evidence that the Appellant was mentally ill at the time he committed the offences. The Appellant was accordingly found guilty of murder.
The Appellant in the appeal referred to S v Tom and Others 1991 (2) SACR 249 (B) where it was decided that where there is a reasonable possibility that the accused is not able to follow the proceedings or might not have been criminally responsible for his actions, the court is obliged to direct that an enquiry under section 77 or 78 and 79 of the Act be conducted. What was apparent from the record of the trial court was that the Judge was concerned that the Appellant, at the commission of the offences, was suffering from a mental illness, which, if he was, section 78(1) of the Act provides that an accused shall not be criminally responsible for the commission of an act if at the time of the commission of the act, he suffered from a mental illness and could not appreciate the wrongfulness of his act. The trial court ought to have acted in terms of section 78(2) of the Act which states that if it is contended or it appears to the court that a person has a mental illness, an enquiry shall be carried out in terms of section 79 of the Act.
The appeal court stated that the provisions of section 79(3) and (4) of the Act provides that the report must, inter alia, be in writing, include a description of the nature of the enquiry, a diagnosis of the mental condition of the accused and include a finding as to the extent to which the capacity of the accused to appreciate the wrongfulness of his actions when he committed the crime was affected by the mental illness/defect.
The initial report compiled by the doctor in the trial court did not meet the requirements as set out in sections 79(3) and (4) of the Act. The report was silent on the nature of the tests conducted on the Appellant and the basis on which the conclusion was reached that he did not suffer from a mental illness at the time of the commission of the offences. The report should have been based on a holistic assessment of all relevant facts and circumstances and should include interviews with persons, other than the medical personnel, who have personal knowledge of the accused’s background.
The trial court also mero motu embarked on its own investigation into the mental illness of the Appellant by calling on the I.O to testify on the mental illness of the Appellant, which was irregular as the court must be guided by expert evidence and not by itself as it is a lay person in the field of psychiatry (S v Mabena & another  ZASCA 178).
The appeal court found that this irregularity was found to be fundamental to the Appellant’s right to a fair trial and had to be regarded as fatal to the proceedings in the trial court.
The appeal was upheld and the convictions and sentences were duly set aside.
This case reinforced the importance of following the proper procedures regarding an enquiry into the mental state of an accused in terms of sections 77, 78 and 79 of the Act. The court must be in possession of all the relevant facts and circumstances and conduct an enquiry into the mental state of an accused with the assistance of an expert. Failure to do this is seen as a fatal irregularity to the proceedings.