ConCourt to hear Western Cape case

2014-11-14 16:05
The Constitutional Court (File: Sapa)

The Constitutional Court (File: Sapa)

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Johannesburg - The Constitutional Court will on Monday hear a case relating to the Western Cape High Court's ruling that a section of the Criminal Procedure Act (CPA) is unconstitutional.

The lower court's ruling stems from two cases.

In one case, a 14-year-old boy was charged with murder after allegedly stabbing to death a teenage girl, also 14.

In another case, a 30-year-old man was charged with the rape of an 11-year-old girl. Both have intellectual disabilities.

The presiding magistrates in both cases referred the accused for observation to determine whether they were competent to stand trial.

The experts concluded that neither accused would be able to understand the court proceedings.

The CPA provides for the compulsory incarceration or institutionalisation of an accused, who is found to be mentally unfit to stand trial and who is found to have committed the offence as charged.

The constitutionality of this provision was challenged separately on behalf of both accused, by their mothers and curators. The cases were later consolidated.

Both cases were postponed in the magistrate's court pending the outcome of the Constitutional Court challenge.

The high court found that the CPA violated the constitutional rights to freedom and security of persons and the rights of children.

It held that the relevant section of the act was overly-broad, unjustifiable in an open and democratic society and therefore unconstitutional. The court asked that Parliament remedy the defect.

Before the Constitutional Court, the applicants argue that the section infringes or threatens the accused's constitutional rights to equality, dignity, freedom and security.

They submit that, since there is no evaluation of whether the accused posed a threat to himself or to society, and because the provision allows for no discretion, the deprivation envisaged is far-reaching, arbitrary and without just cause, and renders the criminal procedure unfair.

The respondents, the minister of justice and others, will argue that the case is not "ripe" for hearing. They will argue that the provisions are consistent with the Constitution and South Africa's international law obligations.

They submit that the provisions protect broader society, ensure the proper treatment and care of persons with mental disabilities, and are rational.

Read more on:    concourt  |  cape town  |  crime

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