Ntshongwana v The State

During March 2011, the appellant killed four men in the Durban area, decapitating three, and attempted to kill two others. The victims were lone men walking at night, attacked with an axe. He was also linked to an assault in November 2010 and the kidnapping and multiple rape of a woman over three days in late November/early December 2010. The appellant was arrested on 28 March 2011. Bloodied clothes, a sharpened axe, and a shoe with a missing toe cap (found near a body) were discovered on his property. The appellant pleaded not guilty, raising a defence of pathological incapacity, claiming that due to mental illness (schizoaffective disorder/delusional disorder), he lacked criminal capacity at the time of the offences. He did not testify but led evidence from his family and an expert psychiatrist, Professor Gangat. The State led evidence from three panel psychiatrists who had observed the appellant.

• Whether the appellant discharged the onus to prove, on a balance of probabilities, that he lacked the capacity to act in accordance with an appreciation of the wrongfulness of his acts due to mental illness or mental defect (s 78(1)(b) of the Criminal Procedure Act 51 of 1977).
• Whether the appellant’s mental illness diminished his capacity as contemplated in s 78(7) of the Criminal Procedure Act, constituting substantial and compelling circumstances to depart from prescribed minimum sentences.

The appeal is dismissed.

Where an accused raises a defence of pathological incapacity under section 78(1) of the Criminal Procedure Act, the onus rests on the accused to prove on a balance of probabilities that a mental illness or mental defect rendered them incapable of appreciating the wrongfulness of their act or of acting in accordance with that appreciation. Expert evidence must be evaluated against the objective facts of the accused's conduct; goal-directed behaviour, planning, and steps to avoid detection are indicators of criminal capacity, and a court is entitled to reject speculative psychiatric opinions that are inconsistent with the proven facts. The accused's failure to testify on this issue, where they bear the onus, may have consequences.

Ponnan JA, in a concurring judgment, emphasised that a court must view the evidence as a 'mosaic' rather than focusing on isolated parts. The hypothesis that the appellant could appreciate right from wrong but could not control his actions was incompatible with the evidence of goal-directed conduct over a protracted period; it was 'inconceivable' that he suffered a complete loss of control only at the precise moment of each repeated offence.

This Supreme Court of Appeal judgment provides authoritative guidance on the defence of pathological incapacity under sections 78(1A) and 78(1B) of the Criminal Procedure Act. It clarifies the interplay between expert psychiatric evidence and objective conduct in assessing criminal capacity, underscores the evidentiary consequences for an accused who elects not to testify when bearing the onus, and reiterates the principle that amnesia is not a defence and should be scrutinised with care.