Legally Speaking with Fawzia Khan

Quite remarkably, the two criminal cases which has gripped the media spotlight, that of Oscar Pistorius and Sherien Dewani, both accused of murdering their partners, have had the provisions of Section 77 (read with Section 78 and 79) of the Criminal Procedure Act, applied to their respective cases. In the Shrien Dewani case, Dewani, a British national is charged with orchestrating the death of his wife whilst on honeymoon in South Africa, whilst Pistorius is charged with shooting and killing his girlfriend.

Usually the request to be sent for mental observation is made by the accused or his legal representative. Its done if the defence of the accused is that there is a claim of mental instability or if at the time the accused committed the crime, he was unable to appreciate the wrongfulness of his actions and act in accordance with such appreciation.

Section 77 (1) of the Criminal Procedure Act, says that if by reason of mental illness or mental defect, an accused is not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79. If we look at the Shrien Dewani defence, that it would also include whether or not the accused is able to follow the criminal proceedings), the accused can be ordered to under mental observation for a period of 30 days.

In the Pistorius case, the request for such an order came from the State which is not the norm and was prompted by the evidence of an expert witness for the defence that Oscar Pistorius, Ms. Vorster, who said that Oscar Pistorius suffered from general anxiety disorder (GAD). What does this mean for Oscar? Well if the report finds that that he was not criminally responsible for the death of Reeva Steenkamp, the trial would not proceed further and he would not be convicted that is found guilty of murder of Steenkamp.

The relevant provisions of the Act allows for an accused person to be examined and observed by medical experts for a period of thirty days. Thereafter a report is prepared to determine his mental state, whether or not the accused is fit to stand trial and whether or not at the time he committed the crime he understood the wrongfulness of his actions and was able to act in accordance with such appreciation. This report is prepared by a panel of medical experts. The report would also be used in sentencing the accused.

Know your rights! The Law Desk of Fawzia Khan and Associates. We Know! We Care! We
Deliver! Email or call 031-5025670 for legal assistance.

Courtesy of The Bugle