PROPOSED AMENDMENTS TO THE CRIMINAL MATTERS AMENDMENT BILL [B93-97]

CLAUSE 1
1. On page 1, in line 8, after "thereof" to insert:
or the medical practitioner in charge of the patient

2. On page 1, from line 8, to omit:
except in the case of a patient detained in an institution under the control of the State and who is not in the medical care of the superintendent of such institution

CLAUSE 2
1.On page 3, in line 20, to omit subsection (1) and to substitute:
(1)(a) Where any person is, with reference to a charge of murder or culpable homicide or a charge involving serious violence, detained as a State patient in terms of this Act or section 77(6) (a) (I) or 78(6)(b)(i) of the Criminal Procedure Act, 1977 (Act No 51 of 1977), a judge in chambers may at any time after the order of detention, on written application being made to him or her
(i) call for such further information as he or she may consider necessary and may summon any psychiatrist to his or her assistance;
(ii) if he or she is of the opinion that it is desirable to do so, appoint of his or her own accord or at the request of any interested person, on good cause shown, a curator ad litem for the State patient;
(iii) order that the State patient
(aa) be discharged either absolutely or conditionally
(bb) cease to be treated as such;
(cc) be further detained as a State patient;
(dd) be further detained as a patient under Chapter 3
(iv) make such other order under section 19 as he or she may think fit;
(v) reject the application if a similar application had been rejected by a judge in chambers less than 12 months before the date of the aforementioned application without making an order in terms of subparagraphs (iii) or (iv) of this subsection or make any order he or she thinks fit.
(b) An application referred to in paragraph (a) may be made by
(i) the official curator ad lirem;
(ii) the superintendent of the institution, the person in charge of the place where the State patient is being detained or the medical practitioner in charge of the patient;
(iii) the State patient;
(iv) a relative of the State patient;
(v) any other person or body on behalf of the State patient.
(c) (i) Such-
(aa) application referred to in paragraph (a);
(bb) recommendation referred to in subparagraph (ii) of paragraph (d);
(cc) reports referred to in paragraphs (d) and (e) shall be furnished to the registrar of the court in whose area of jurisdiction the place is situated in which the patient is being detained; and
(ii) Such registrar shall forthwith submit -
(aa) such applications, reports and recommendations to a judge in chambers; and
(bb) a copy of the application to the official curator ad litem if the application is made by someone other than the official curator ad litem.
(d) The official curator ad litem shall upon receipt of an application from the registrar as soon as practicable
(i) obtain reports on the State patient concerned by
(aa) the superintendent of the institution, the person in charge of the place where the State patient is being detained or the medical practitioner in charge of the patient; and
(bb) two medical practitioners;
and either the said superintendent or one of the said two medical practitioners shall be a psychiatrist; Provided that he or she may obtain a report by a registered clinical psychologist in addition to the aforementioned reports;
(ii) compile his or her own report and recommendation regarding the application; Provided that if it appears to the official curator ad litem upon the receipt of such application that a similar application in respect of the State patient concerned had been rejected by a judge in chambers less than 12 months before the date of the aforementioned application, he or she may, instead of obtaining the reports referred to in subparagraph (i) of paragraph
(a), make a recommendation that the application be rejected.
(iii) furnish such reports and recommendation to the registrar for submission to a judge in chambers:
(e) The reports referred to in subparagraph (i) of paragraph (d) and subparagraph (i) of paragraph (f) shall contain a detailed history of the State patient and information as to, and a prognosis of, his or her mental condition.
(f) The curator ad litem appointed under subparagraph (ii)) of paragraph (a) shall-
(i) obtain a report as contemplated in paragraph (e) by a psychiatrist, but may also obtain a report by a registered clinical psychologist in addition to the report by the psychiatrist;
(ii) adduce any available evidence relevant to the application
(iii) perform such other duties as the judge in chambers instructs.
(g) A curator ad litem appointed under subparagraph (ii) of paragraph (a) shall be entitled to the remuneration that the Minister of Justice determines by notice in the Gazette

CLAUSE 3
1. On page 6, to insert in line 8 after "of" "section 3B of"
2. On page 6, to insert in line 11 after "jurisdiction" "in terms of section 75".
3. On page 6, to insert in line 16 after "(1),":
and unless it can be proved on a balance of probabilities that, on the limited evidence available the accused committed the act in question
4. On page 6, to insert in line 22, after "interest,"
if the court finds that the accused has committed the act in question, or any other offence involving serious violence
5. On page 6, to insert in line 25, after "subparagraph (i)":
if the court finds that the accused has committed the act in question, has
committed any other offence or that he or she has committed no offence
6. On page 6, to insert in line 30, after "discharge":
or an order that he or she shall not longer be treated as an outpatient

CLAUSE 4
1. On page 6, from line 53, to Omit subsection (1A) and to substitute the following subsections
(1A) Every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of section 77(1), until the contrary is proved on the balance of probabilities.
(1B) Whenever the criminal responsibility of an accused with reference to the commission of an act which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue.
2. On page 8, in line 6, to insert after "shall":
in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case,
3. On page 8, from 18, to omit subparagraphs (i) and (ii) and to substitute:

(i) in a case where the accused is charged with murder or culpable homicide or another charge involving serious violence or if the court considers it to be necessary in the public interest that the accused be-
(aa) detained in a psychiatric hospital or a prison pending the signification of the decision of a judge in chambers;
(bb) admitted to, detained and treated in an institution in terms of Chapter 3 of the Mental Health Act, 1973 (Act No.18 of 1973), pending discharge by hospital board in terms of section 29(4) (a) of that Act;
(cc) treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such;
(dd) released subject to such conditi6ns as the court considers appropriate; or
(ee) released unconditionally.
(ii) in any other case than a case contemplated in subparagraph (i), that
the accused
(aa) be admitted to, detained and treated in an institution in terms of Chapter 3 of the Mental Health Act, 1973 (Act No.18 of 1973),pending discharge by a hospital board in terms of section 29(4) (a) of that Act;
(bb) be treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such
(cc) be released subject to such conditions as the court considers appropriate; or
(dd) be released unconditionally.

CLAUSE 5
1. On page 8, from line 35, to omit subsection (1) and to substitute:
(1) Where a court issues a direction under section 77 (1) or 78 (2), the relevant enquiry shall be conducted and be reported on-
(a) where the accused is charged with an offence other than one referred to in paragraph (b), by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or
(b) where the accused is charged with the offence of treason, sedition, murder, rape, robbery, or kidnapping or where the court in any particular case so directs-
(i) by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court;
(ii) by a psychiatrist appointed by the court and who is not in the full-time service of the State;
(iii) by a psychiatrist appointed for the accused by the court; and
(iv) by a clinical psychologist where the court so directs

2. On page 10, after line 21 to insert the following new subsection to follow section 79(1 A):

79(1 B) If a prosecutor fails to provide a report referred to subsection (IA) to the persons who have to conduct the enquiry and report-
(a) an inquiry may be ordered in terms of section 18 of the Public Service Act, 1994 (Proclamation 103 of 1994) to inquire whether he or she is unfit for his or her duties or incapable of carrying them out efficiently;
(b) an investigation of a charge of misconduct may be ordered in terms of section 21of that Act; and
(c) the National Director of Public Prosecutions may conduct an investigation as contemplated in section 22(4) (i) of the National Prosecuting Authority Act into such failure to provide the report.

3. On page 10, after line 21 to insert a new paragraph before section 79(4)(d):
79(2) (c) The court may make the following orders after the enquiry referred to in subsection (1) has been conducted
(i) postponed the case for such periods referred to in paragraph (a), as the court may from time to time determine;
(ii) refer the accused at the request of the prosecutor to the court referred to in section 77(6) which has jurisdiction to try the case;
(iii) make any other order it deems fit regarding the custody of the accused; or
(i) any other order.