The Intersection of Mental Health and Criminal Liability in South Africa: A Critical Examination

The intersection of mental health and criminal responsibility is a complex and contentious issue, one that challenges our understanding of guilt, blame, and punishment. This intersection raises important questions about justice and accountability. When individuals with mental health conditions commit crimes, it can be challenging to determine the extent to which they should be held responsible.  As society grapples with the implications of mental illness on behaviour, it becomes essential to define mental health in a legal context, which involves not only understanding psychiatric disorders but also recognizing their nuanced impact on individual actions and decision-making capacities.

Introduction

In South Africa criminal responsibility is based on the idea that  people accused of crime to be held responsible they must have criminal capacity. That is, they must be capable of understanding and appreciating the wrongfulness of their action. Various factors can make a person lack criminal capacity; these include, age, mental illness, Intellectual disability, intoxication, etc. This article will focus specifically on lack of criminal  capacity due to mental illness. Mental illness will be discussed in depth as to what extent does it exonerates accused from criminal lability, the procedures followed to assess it and what happens when accused is acquitted on a crime based on mental illness.  

What is mental illness?

Mental illness is defined as a positive diagnosis of a mental health related illness in terms of accepted diagnostic criteria made by a medical health care practitioner authorized to make such diagnosis. It covers both neurosis (a functional derangement due to disorders of the nervous system, e.g. depression and obsessive behaviour), and psychosis (a severe mental derangement involving the whole personality e.g. schizophrenia and bipolar disorder [also known as manic depression]). According to the Criminal  Procedure Act, a person who committed a crime who at the time of such commission suffered from mental illness, cannot be held responsible for such crime. 

Criminal Capacity

Criminal capacity refers to the ability of an individual to understand the nature and consequences of their actions, and to appreciate the wrongfulness of those actions, at the time of committing a crime. It assesses whether an individual has the mental capacity to form the necessary intent to commit a crime. The CPA sets out the test for assessing whether accused person has mental capacity or not. The test is concerned with establishing two things, namely whether at the time of his unlawful conduct accused in question was:

1. Capable of appreciating the wrongfulness of that conduct
2. Capable of acting in accordance with that appreciation.

For a person to have criminal capacity both the requirements must be satisfied, if either of them is lacking then the person lacks criminal capacity and cannot be held responsible for an offence he or she committed. 

Two mental faculties are relevant to the capacity enquiry;  these are cognitive function and conative function. The cognitive function are our intellectual functions, they include our function of perception, thinking, reasoning, understanding, judgment and recall. Therefore, a person’s ability to distinguish between right and wrong, to know when certain conduct would be wrong according to standards of law, society or morality, and to decide on the appropriate course of action, depends on that person’s cognitive functions. Conative function on the other hand are our volitional functions, that is our ability to control and direct our behavior towards achieving a particular goal, rather than merely acting on impulse. The first part of the enquiry depends on the accused cognitive functions, and the second part depends on the state of accused conative functions. 

Legal Framework 

In South Africa, the legal framework for dealing with accused individuals who are mentally ill is shaped by various pieces of legislation, constitutional provisions, and judicial precedents. This framework seeks to balance the rights of individuals with mental health issues against public safety and the integrity of the judicial process. The key legislative instruments include Criminal Procedure Act, the Mental Health Act, and the Constitution of South Africa.  Mental illness can affect accused’s fitness to stand trial and his or her criminal capacity. Fitness to stand trial is a pre-trial issue whereas criminal capacity is relevant for purposes of sentencing.

The Criminal Procedure Act

The Criminal Procedure Act serves as the primary legislative framework governing criminal procedure in South Africa. It addresses how to deal with individuals who are unable to understand the charges against them or to participate in their trial due to mental illness. The general rule is that every person is presumed not to suffer from a mental illness or intellectual disability so as not to be criminally responsible, until contrary is proved on a balance of probabilities. The onus of proving the mental existence of mental illness lies on who alleges it.  

When it is alleged that accused is mentally ill, the court orders that a forensic assessment must be carried out.  Chapter 13 of the CPA provides for this assessment, it is stated that if it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or intellectual disability not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported. At this stage the purpose of the enquiry is to enquire whether the accused is fit to stand trial.  If the court finds that the accused is capable of understanding the proceedings so as to make a proper defence, the proceedings shall be continued in the ordinary way.

Following enquiry for the fitness to stand trial is enquiry whether accused can be held criminally responsible for the crime in question, that is whether accused can be punished for the alleged offence. The Act provide that if a person who commit an offence and who at the time of such commission suffered from mental illness, which made him or her incapable of appreciating the wrongfulness of his action and acting in accordance with such appreciation, shall not be held criminally responsible for the offence committed.   Should it happen that the court finds the accused guilty of the offence in question but due to mental illness accused cannot be held criminally liable, the court shall find the accused not guilty, if he or she has already been convicted the court shall then before the sentence is passed set the conviction aside and find accused not guilty by reason of mental illness. In such instance the type of the crime accused committed becomes important, if he or she committed murder, culpable homicide, rape, compelled rape or any other serious offence, the court must order that accused be detained in a psychiatric hospital or admitted and detained in a designated health establishment, or the court may release accused subject to conditions that the court considers appropriate. 

The Constitution

The Constitution guarantees various rights to individuals, including the right to a fair trial, right for everyone to have their dignity respected and protected. Everyone is entitled to these rights regardless of their mental health. These rights lay the foundation for how the legal system interacts with mentally ill defendants. The Constitution recognizes that mental illness can impact one’s ability to understand the legal proceedings or to participate in their own defense, necessitating special procedures. 

Mental Health Care Act

The Act provides that a mental health care user is entitled to legal representation when submitting application, lodging a claim or appearing before a magistrate, a judge or review board. It is further provided that the person is entitled to legal aid provided by the state in respect of any proceedings instituted or conducted in terms of the Act. This shows that the fact that the person is mentally ill does not mean he is not entitled to legal representation, he still retains all the rights normal people have. 

Catering for mentally ill offenders does not end during the trial stage, it proceeds to detention of mentally ill prisoners.  The Mental Health Care Act provide for mentally ill prisoners. The Act provides that the head of National Department must designate health establishments which may admit, care for, treat, and provide rehabilitation services to mentally ill prisoners. Should it appear to the head of prison that there may be a prisoner suffering from mental illness, psychiatric, or medical practitioner or mental health care practitioner must be called to examine the prisoner. If upon examination it is found that the prisoner is indeed mentally ill, and the nature of the illness is the one that requires to be treated at a mental health establishment, then an enquiry of to transfer the prisoner must be held. The Act provides procedures that must be adhered to for the transfer to take place. 

Judicial Interpretation

In the case of  S v Sikutu, the Eastern Cape High Court ruled that where issues relating to mental illness and capacity arose, the court will be guided by expert evidence so that it did not have to make an uninformed judgement on such specialized issues. The court further held that mental illness and mental defect are morbid disorders that are not capable of being diagnosed by a lay court without the guidance of expert psychiatric evidence. Held any inquiry into the mental status of an accused person which is embarked upon without such a guidance is bound to be directionless and futile.  This ruling emphasizes the importance of expert evidence on mental illness cases, merely alleging mental illness is insufficient if there is no evidence to prove it. 

Recent cases like S v Thupa and S v Nkonwane show the judicial process for individuals accused of crimes where mental illness is a factor. In S v Thupa accused appearing on a charge of murder was referred for observation in terms of both section 77 and 78 of CPA. Accused had been charged with murder of a 4year old girl. During the course of proceedings, it was alleged that accused might not be fit to stand trial or alternatively that he lacked criminal capacity at the time of commission of the alleged crime due to mental illness. A panel of psychiatrists diagnosed accused with Transient Visual Hallucination of most possibly organic origin and concluded that he was not fit to stand trial, he could only follow the proceedings but won’t be able to give a full account of the time of the alleged offence and therefore will not be able to instruct his attorney. They further concluded that he lacked criminal capacity. The accused was released in terms of section 77 (6) (a) (i) (dd) of the CPA and an order was made that he shall surrender himself to the authorities when called upon to do so as soon as his admission in a psychiatric hospital is possible. 

In S v Nkonwane, the court held that the current legal position in respect of the composition of psychiatric panel is regulated by section 79 (1) (b) of the CPA as amended. It further held that to constitute a legally recognized quorum for a section 79-assessment panel must consist of at least two psychiatrists. These cases illustrate the complex legal and ethical considerations involved when mental illness intersects with criminal behaviour, highlighting the need for thorough psychiatric evaluations and appropriate legal and clinical responses. 

Critical Analysis

The debate surrounding the acquittal of individuals based on mental illness is complex and multifaceted. While the legal system aims to balance justice with compassion, the public often grapples with the notion that individuals who commit crimes under influence of mental illness may not face traditional punishment. The public often views acquittals based on mental illness as unjust, particularly when considering the lasting impacts, the offences they committed on victims. 

 While the justice system strives to balance accountability and compassion, allowing mental illness as a defence can create loopholes. These include manipulation and faking, there is a risk that some individuals might feign or exaggerate mental illness to avoid accountability. Secondly, high profile cases where mental illness is used as a defence can lead to public scepticism and erosion of trust in the justice system. Thirdly, the use of mental illness as a defence can be distressing for victims and their families, who may feel that justice is not being served. Lastly, even if individuals are acquitted due to mental illness, they may not receive adequate treatment or support, potentially leading to further issues. The justice system has to develop strategies that can help to mitigate these loopholes, such as judicial education and training like offering ongoing education and training for judges, prosecutors, and defence attorneys on mental health issues and their implications in criminal cases, so that they won’t only rely on procedures provided in the Act only. Also providing robust support and compensation mechanisms for victims and their families can mitigate these loopholes. 

The intersection of mental health and criminal responsibility is complex and multifaceted. While the legal system aims to balance justice with compassion, challenges persist. By acknowledging the complexities and implementing nuanced approaches, we can work towards a more just and equitable system that prioritizes both accountability and support for individuals with mental illness, as well as victims and their families. 

References

1. The Constitution of the Republic of South Africa, 1996
2. The Criminal Procedure Act 51 of 1977
3. Mental Health Care Act 17 of 2002
4. Criminal Law in South Africa, Oxford University Press, 3rd ed 2018 by Kemp et al
5. S v Sikutu 2012 (2) SACR 324 (ECB)
6. S v Thupa 2023 JDR 3175 (MN)
7. S v Nkonwane 2024 JDR 1361 (NWM)