South Africa: law to stop detention of mentally ill in prisons

In February, the Minister of Justice and Correctional Services introduced a Bill amending the Criminal Procedure Act, 1977 (CPA) to Parliament. The Bill seeks to stop the incarceration of accused persons who are mentally ill or intellectually disabled in prisons.


The Bill will amend two sections of the CPA, sections 77 and 78, both previously challenged in the Constitutional Court case De Vos N.O v Minister. De Vos was appointed as a curator ad litem for a Mr Sturrman, who was intellectually disabled and charged with raping a minor.

De Vos argued that the sections were unconstitutional, because they required that an accused found to have a mental illness or intellectual disability be detained in either a mental health facility or prison, even if this was not appropriate.

In June 2015, the Constitutional Court invalidated the sections, but suspended the order of invalidity for two years to give Parliament time to amend them.

In the interim, the Court amended the sections to remove the requirement of compulsory imprisonment for mentally ill and intellectually disabled persons. The amended section allowed a magistrate or judge to detain an accused in a mental health care facility or to be released.

The law as it stands

Section 77 sets out the procedure a judicial officer should follow when an accused person is unable to understand criminal proceedings as a result of mental illness or intellectual disability. This is known colloquially as a defence of insanity.

Section 78 outlines the procedure to be followed if an accused is claiming to have been mentally incompetent at the time of committing the offence, also known as the defence of temporary insanity.

In these cases, the accused is referred to a state psychiatric facility to be evaluated so that their mental illness or intellectual disability and its severity can be confirmed. On the basis of this evaluation, the judicial officer will make a decision on what should happen to the accused.

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