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

Two consolidated matters concerned accused persons with intellectual disabilities who were found incapable of understanding court proceedings under section 77 of the Criminal Procedure Act 51 of 1977. Mr Stuurman, a child at the time of the alleged offence, was charged with murder; Mr Snyders, an adult, was charged with rape. In both cases psychiatric evaluations confirmed severe intellectual disability and inability to understand proceedings. Section 77(6)(a) compelled courts, after a factual enquiry, to order detention in prison or psychiatric institutions without discretion. The applicants challenged the constitutionality of these peremptory detention provisions, arguing that they infringed rights to freedom and security of the person and, in respect of children, violated section 28 of the Constitution.

Section 77(6)(a)(i) was declared unconstitutional to the extent that it mandates compulsory imprisonment of adults and compulsory hospitalisation or imprisonment of children. Section 77(6)(a)(ii) was declared wholly unconstitutional and was read down with immediate effect to provide courts with discretion to order institutionalisation, conditional release, or unconditional release. The declaration of invalidity in respect of section 77(6)(a)(i) was suspended for 24 months to allow Parliament to amend the legislation. The orders were not retrospective.

This case is a leading authority on the constitutional rights of accused persons with mental illness or intellectual disability who are unfit to stand trial. It affirms that mandatory detention without judicial discretion violates the right to freedom and security of the person and underscores the paramountcy of children’s best interests in criminal procedure. The judgment harmonised section 77 with constitutional standards and mental health jurisprudence, influencing legislative reform and safeguarding against arbitrary detention.