De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others

Mr Stuurman, 14 years old at the time, was charged with murder and found to have a severe intellectual disability following a head injury. Mr Snyders, 35 years old, was charged with rape and found to have moderate mental retardation. Both were referred for mental observation under section 77(1) of the Criminal Procedure Act. Psychiatrists found that neither could understand court proceedings or appreciate wrongfulness of conduct. The matters were consolidated in the High Court challenging the constitutional validity of section 77(6)(a)(i) and (ii) which mandated detention in psychiatric hospitals or prisons for accused persons found unable to understand proceedings but who committed (on a balance of probabilities) the act in question. The applicants included curators ad litem appointed for the accused and their mothers. Cape Mental Health participated as amicus curiae.

• Whether section 77(6)(a) of the Criminal Procedure Act is peremptory or discretionary
• Whether section 77(6)(a)(i) violates section 12 of the Constitution (freedom and security of the person) by mandating hospitalisation and/or imprisonment
• Whether section 77(6)(a)(i) violates children's rights under section 28 of the Constitution
• Whether section 77(6)(a)(ii) violates section 12 by mandating institutionalisation
• Whether any limitation is justified under section 36 of the Constitution
• Appropriate constitutional remedy

1. The High Court's declaration of invalidity not confirmed. 2. Section 77(6)(a)(i) declared inconsistent with the Constitution and invalid to the extent it provides for: (a) compulsory imprisonment of adult accused; and (b) compulsory hospitalisation or imprisonment of children. 3. Declaration of invalidity suspended for 24 months to allow Parliament to correct defects. 4. Section 77(6)(a)(ii) declared unconstitutional and invalid, with immediate reading-in of additional options: (aa) detention in institution as involuntary mental health care user; (bb) release subject to conditions; or (cc) unconditional release. 5. Orders not retrospective.

The mandatory detention of accused persons with mental illness or intellectual disability under section 77(6)(a) violates section 12(1) of the Constitution where: (1) imprisonment is mandated solely due to resource constraints rather than the accused posing serious danger; (2) children are detained without judicial discretion to consider whether detention is a last resort as required by section 28(1)(g); and (3) institutionalisation is mandated under section 77(6)(a)(ii) regardless of whether the accused committed any offence or poses any danger. Freedom and security of the person requires both procedural fairness and substantive justification - deprivation must not be arbitrary and must be for 'just cause', meaning a rational connection to a legitimate purpose and reasons consonant with constitutional values. The existence of mental illness or intellectual disability alone does not constitute just cause for detention, in accordance with article 14 of the UN Convention on the Rights of Persons with Disabilities.

The Court observed that while section 77(6)(a) and section 78(6) of the Criminal Procedure Act treat accused persons differently, this distinction is rational as they address different enquiries and circumstances. Section 77 concerns present inability to understand proceedings, while section 78 concerns past mental state at time of offence where the accused is found not guilty. The Court noted that in exceptional circumstances, presiding officers may order expedited section 47 Mental Health Care Act applications where an accused found to have committed a serious offence appears not to pose a threat. The Court acknowledged that while South Africa has resource constraints as a developmental state, this cannot justify negative obligations not to arbitrarily deprive persons of freedom, as section 12 contains no internal limitation requiring consideration of resources. The Court commented that imprisonment of persons with mental disabilities perpetuates harmful stereotypes and stigmatisation, impairing human dignity. On statutory interpretation, the Court reaffirmed that 'shall' carries its ordinary mandatory meaning and cannot be read as 'may' without justification.

This case establishes crucial constitutional protections for accused persons with mental illnesses or intellectual disabilities in the criminal justice system. It affirms that section 12's guarantee of freedom and security has both procedural and substantive components - deprivation must follow fair procedures and be for acceptable, non-arbitrary reasons constituting 'just cause'. The judgment confirms that the existence of disability alone cannot justify deprivation of liberty, in line with the UN Convention on the Rights of Persons with Disabilities. It balances individual rights against legitimate state interests in treatment and public safety. The case demonstrates the Court's willingness to use reading-in as a remedy while suspending invalidity in complex, polycentric matters better suited for legislative resolution. It reinforces children's constitutional rights to detention only as last resort and advances substantive equality for historically disadvantaged persons with disabilities.