The unfit accused in the South African criminal justice system: From automatic detention to unconditional release

Authors Letitia Pienaar

ISSN: 1996-2118
Affiliations: Senior lecturer, Department of Criminal and Procedural Law, Unisa; Attorney of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 31 Issue 1, p. 58 – 83


Section 77 of the Criminal Procedure Act 51 of 1977 sets out the orders that a court can make after fnding an accused unft to stand trial on account of his mental illness or intellectual disability. All the orders result in detention of the unft accused in prison or a psychiatric institution (depending on the nature of the charges against the accused) in terms of the Mental Health Care Act 17 of 2002. The court could not consider the treatability of the accused’s condition or any individual circumstances of the accused before ordering such detention. Section 77 was recently amended by the Criminal Procedure Amendment Act 4 of 2017. The Amendment Act resulted from the Constitutional court’s judgment in De Vos NO v Minister of Justice and Constitutional Development 2015 (2) SACR 217 (CC) where the court found, inter alia, that such limited orders deprive the court of its discretion to craft an order that is suitable for the particular unft accused. The court ruled on the constitutionality of detaining an unft accused in prison or a psychiatric institution and found some provisions of s 77 that facilitates such detention, unconstitutional. The Amendment Act brings s 77 in line with the Constitution. This contribution explores the orders available to the court before and after the amendment of s 77 and conveys the crux of the court’s judgment in the De Vos matter pertaining to the unconstitutionality of certain provisions of s 77. It concludes that the amendment bolsters, in particular, the unft accused’s right to freedom and security of the person as the court may now order the conditional or unconditional release of the unft accused where appropriate.