- High Court clarifies that courts must determine whether an accused can understand proceedings when concerns arise about their ability to participate in the trial.
- During his murder trial, 75-year-old Frank Lesiba Gwangwa repeatedly told the court he suffered from memory lapses and couldn’t recall the incident.
- Court finds that failing to establish if he could follow the proceedings made the trial irregular and set aside his conviction.
The High Court in Polokwane has clarified that trial courts have a duty to consider a person’s mental capacity whenever there’s a reasonable possibility the accused cannot follow court proceedings. Before continuing, the court must decide if a formal mental capacity inquiry is needed.
This decision followed review proceedings brought by Frank Lesiba Gwangwa, who was 75 when he received an eight-year prison sentence for murder from the Seshego Regional Court.
At the outset, Gwangwa said he was unable to follow the proceedings, raising concerns about his ability to participate fully in his own defence. Throughout the trial, he repeatedly reported memory lapses and difficulty recalling the incident at the centre of the case.
His lawyer, identified only as Mr Ramokgopa in the judgment, also told the court that consultations were challenging because Gwangwa could not clearly remember the events in question.
Trial court recognised the issue, but did not act
The trial record shows that the magistrate acknowledged Gwangwa’s memory problems. The magistrate remarked, “I can refer to the plea explanation where it was said he cannot clearly recall the incident. His memory fails him. He is not clear on his memory of the incident specifically.”
Despite this, the trial continued without a determination as to whether Gwangwa was capable of understanding the proceedings. Acting Judge M Chidi noted that the record contained no such assessment.
Judge Chidi wrote: “The record does not show that the learned magistrate made a determination whether the applicant was able to follow the proceedings or not.”
Legal duty when mental capacity is in question
Judge Chidi explained that Section 77 of the Criminal Procedure Act sets out what courts must do when an accused person may not be capable of understanding a trial.
The judge quoted the law: “If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or intellectual disability not capable of understanding the proceedings to make a proper defence, the court shall direct that the matter be enquired into.”
The court stressed that the question is not whether incapacity is proven, but whether there is a reasonable possibility the accused cannot follow the proceedings.
Judge Chidi stated, “Once there is a reasonable possibility that the accused is not able to follow the proceedings before the trial court, a determination as to whether an accused can follow the proceedings ought to be made.”
The judgment cited earlier court decisions, noting that judges must act with caution when such issues arise. “Once there is a reasonable possibility that the accused is not able to follow the proceedings or might not have been criminally responsible for her actions, the court is obliged to direct that an inquiry is conducted,” the court said.
Why was the conviction set aside
After examining the trial record, the High Court found that the trial court failed to address the issue once concerns about memory loss and consultation difficulties were raised.
Judge Chidi said this omission could have affected the fairness of the trial.“The trial court ought not to have proceeded without the Section 77 determination upon the learned court being notified of the applicant’s challenges,” the judge said.
The court determined that this failure made the proceedings irregular and invalidated the outcome. Judge Chidi concluded, “It was procedurally grossly irregular of the trial court to proceed as it did.”
Case to be retried before a new magistrate
The High Court upheld Gwangwa’s review application and set aside the conviction and sentence. The matter was sent back to the Regional Court to be retried before a different magistrate.
Judge Chidi emphasised that the High Court was not deciding whether Gwangwa lacked mental capacity, only whether proper procedure was followed. “This court, limited to the record, does not express itself whether or not there ought to have been an order for an enquiry.”
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