Mashisane v The State

The appellant was found guilty of rape of a two-year-old girl by the Malamulele regional court under section 11(2) of the criminal procedure Act based on his guilty plea and statement. He was subsequently sentenced on 05 September 2013 to 5 (five) years’ imprisonment, 2 (two) years of which are suspended for 5 (five) years on condition that he is not convicted of rape committed during the period of suspension. He was 16 years old at the time of the commission of the offense and was legally represented during the trial, and his mother/guardian was always at court to stand by him. After the Conviction, the Court asked for pre-sentence report amongst other report and an assessment was conducted by a probation officer of the appellant. The probation officer found out the appellant was suffering from some mental illness and recommended the Court for the postponement of the sentence. Thereafter the appellant was referred for mental observation to determine the status of his mental illness. The probation officer submitted a developmental assessment progress report where he stated that the appellant was at some stage referred to a doctor for a medical report; and that the said doctor certified that the appellant was mentally retarded. In this developmental assessment progress report he referred to an ‘attached report’; but unfortunately there was no doctor’s report attached to the developmental assessment progress report aforesaid and/or anywhere in the record.
A notice to appeal was filed by the appellant’s legal representative on the ground of his juvenility and mental illness. An amended notice to appeal was filed by the Legal Aid South Africa, Pretoria Justice Centre against both conviction and sentence. It was submitted by appellants lawyers that by virtue of section 84 (1) (b) of the Child Justice Act 75 of 2008, he gets the right to an automatic appeal. It appeared that, prior to sentencing, the magistrate (at this point made aware of these facts) ignored these findings and sentenced the appellant without having referred him for mental evaluation as recommended. No reason whatsoever was recorded for the same.
The primary issue in the case was whether or not the court was obliged, upon an allegation that the accused may be mentally ill, to order an assessment of the accused’s mental state and consider that in sentencing.

The Court held that the sentence of 5 years’ imprisonment should be suspended; and remitted the matter back to trial court “for an order that the appellant should be referred for mental observation at a mental institution to be assessed by a panel of psychiatrists, for an investigation in terms sections 78(2) read with section 78(7) and section 79 of the CPA”.
The court observed that due to the “uncertainty” envisaged under section 77 with respect to the appellant’s mental capacity, the regional court was obliged to order a mental observation to determine his mental state. Based on the precedent set by the case of S v Mokie and section 78(2)of the Criminal procedure Act, the court was obliged to send for observation as the probation officer’s report raised an allegation or appearance of doubt with regard to the accused’s criminal responsibility. The court had no discretion to refuse such an inquiry.
The record indicated that the magistrate had only realized that the appellant was possibly suffering from some kind of mental illness after conviction, during the sentencing process. At this stage, the court noted that the magistrate should have stopped the proceedings and referred the appellant for evaluation of his mental state, which was a relevant consideration in the case.
Despite the fact that the appellant was legally represented and appeared to understand what he was pleading guilty to, as well as the fact that the doctor’s alleged certification that the appellant was mentally retarded could not be found, the fact remained that the possibility existed that the appellant was suffering from mental illness or disorder. Once uncertainty about the accused’s mental stability (envisaged by s.77) existed, it was mandatory that the court refers to the (potentially) mentally infirm person for observation. Therefore, the court remitted the matter back to the trial court for an order that the appellant should be referred for
mental observation at a mental institution to be assessed by a panel of psychiatrists, for an
investigation in terms sections 78 (2) read with section 78(7) and section 79 of the CPA

“It is clear from this section that once uncertainty envisaged by section 77 (1) exists, the court is obliged to refer the accused for observation; it is thus mandatory that where the issue of fitness to stand trial arises during the course of the trial, the court should adjourn the case so that the accused can be referred for assessment, and the necessary reports can be obtained.” (pp. 6 at para 25)