insanity.pdf

Africa 3
Insanity is a
legally defined
state of mind and
does not refer to
a mental
disorder
Mental illness
refers to a
behavioural or
psychological
pattern which
causes personal
distress and
impairment
The Insanity Defence (Pathological Criminal Incapacity)
The term ‘insanity’ refers to a legally defined state of mind and does not
refer to a particular psychological disorder or state. In fact, as will be shown,
legal conceptions of insanity may be far removed from psychiatric or
psychological conceptions of mental illness.
Fitness to stand trial
In terms of criminal procedure, every person is presumed to be sane until
the contrary is proven. However in the case of mental illness or defect, when
an accused’s capacity to follow court proceedings is compromised, he or she
cannot be tried in a court of law. Section 77 of the Criminal Procedure Act 51
of 1977 (CPA) therefore makes provision for an inquiry and report on the
accused’s fitness to stand trial. Further statutory provision is made for expert
testimony to establish the presence of mental illness or defect and the extent to
which it impacts on the accused’s ability to follow proceedings. Where the
offence has been violent, as in the case of murder, rape or culpable homicide,
Section 79 of the CPA provides for the inquiry to be conducted by a panel of
psychiatrists at a psychiatric hospital. Psychiatric evidence regarding the
presence of mental illness and its impact on the capacity of the accused to
understand proceedings is contained within the report presented to the court.
However, the court may also require psychological evidence - for example,
evidence pertaining to the accused person’s level of intellectual functioning.
This inquiry is conducted and reported on by a psychologist 2 . If the findings of
the psychiatrists and psychologist conclude that the accused is not fit to stand
trial, he or she will be admitted to a state psychiatric hospital for an indefinite
period of time.
Where fitness to stand trial is concerned, the
psychologist may play a role at the court’s request.
Psychological knowledge regarding factors such as
intellectual functioning, personality functioning and
emotional functioning may therefore be admitted as
testimony so that the court is put in a position to make a
finding regarding the accused person’s capacity to
follow proceedings.
The impact which the accused person’s mental state has on his or her
functioning is relevant to both the capacity to understand and to follow court
proceedings, as well as his or her criminal responsibility. However, as will see,
an inquiry into an accused’s fitness to stand trial has no bearing on the inquiry
into his or her responsibility.
The Legal Test for Insanity in South Africa
When the insanity defence is raised, the court is concerned as to whether
the accused can be held criminally responsible in light of the purported mental
2 In terms of Section 6 of the Criminal Matters Amendment Act 68 of 1998 (which amends Section 79
(1) of Act 51 of 1977), clinical psychologists are also empowered to conduct and report on forensic
assessments concerning pathological mental states. Prior to this, only psychiatrists were legally
allowed to perform this duty.
Activity 8.1.
X is accused of murdering his neighbour.
In court he babbles incoherently and laughs
inappropriately when the judge addresses
him. Is he fit to stand trial? Explain your
answer.