S V Kasita (CC 05-2014) 2015 NAHCNLD 13 (17 March 2015)

REPUBLIC OF NAMIBIA NOT REPORTABLE

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI,

JUDGMENT

CASE NO: CC 5/2015

In the matter between:

THE STATE

And

PAULUS NGHINASHINDANINGA KASITA ACCUSED

Neutral citation: S v Kasita (CC05-2014)[2015] NAHCNLD 13(17 March 2015)

Coram:Tommasi J

Heard:17 March 2015

Delivered:17 March 2015

Flynote: Criminal Procedure — s78 of the Criminal Procedure Act 1977 (Act 51 of 1977) (CPA) — Accused found not guilty because of mental illness and detained in terms of the provisions of s78 — Orders the accused be detained in a psychiatric hospital or prison pending the signification of the President.

Summary: The accused pleaded not guilty to murder and assault by threat and state that he was suffering from schizophrenia. He stated that this rendered him incapable of appreciating the wrongfulness of his actions and to act in accordance of his appreciation. The plea explanation was supported by a report by a psychiatrist in terms of section 79 of the CPA which bot counsel accepted. Evidence was led which satisfied the court that the accused committed the acts but he was found not guilty of both charges because of his mental illness. The court ordered him to be detained in a psychiatric hospital or prison pending the signification of the President in terms of s78 (6) of the CPA.

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ORDER

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1.The accused is found not guilty on count 1 and 2 in terms of section 78(6) if the Criminal Procedure Act, 1977 (Act 51 of 1977) as amended.

2.It is ordered that the accused be detained in a mental hospital or a correctional facility pending the signification of the decision of the State President.

3.It is further ordered that the patient be brought before Dr Ndahambelela Frederika Mthoko of the Psychiatric hospital in Windhoek so that she can prescribe further treatment and give her prognoses in accordance with regulation 6(4) (h) and (i) of the General Regulations published under article 77(1) of the Mental Health Act, 1973 (Act 18 of 1973).

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JUDGEMENT

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Tommasi J:[1]The accused was charged with murder and assault by threat read with the provisions of the Combating of the Domestic Violence Act, 2003 (Act 4 of 2003). He pleaded not guilty and in his plea explanation state that he was suffering from a mental illness at the time of the commission of the offence. He state that he was incapable of appreciating the wrongfulness of his actions and to act in accordance thereof.

[2]The accused was referred to a psychiatric for observation in terms of the provisions of s77 and s78 of the CPA by the magistrate after his plea in terms of s119 of the CPA. Dr Ndahambelela Frederika Mtoko, a psychiatrist, compiled a report in terms of s79 of the CPA which reflected the unanimous opinion of the constituted panel. The accused was diagnosed as suffering from schizophrenia. He was declared fit to plead and stand trial but it was found that, at the time of the commission of the alleged crime, he was suffering from a mental illness and as a result, was not able to appreciate. The report was accepted by both counsel.

[3]The state led evidence to the effect that the accused killed his biological father with a hoe and threatened to kill his biological sister who fortunately was able to escape through a window.

[4]I am satisfied, in light of the evidence adduced, that the accused committed the acts but conclude that at the time he committed these acts, he was unable to appreciate the wrongfulness of his actions and to act in accordance with such appreciation.

[5]Regulation 6(4) (h) and (i) of the General Regulations published under article 77(1) of the Mental Health Act, 1973 (Act 18 of 1978) stipulate that the report ought to advise the court of type of treatment or arrangement which would be fair to the accused and the safest for the community; and the prognosis and possible success of the prescribed treatment. The report however merely states:“The treatment/disposition fairest to the accused and safest to the community would be for the court to proceed according to its finding”. This is nonsensical. Psychiatrists ought to take not of the requirements of the aforesaid regulations and assist the court by complying with the provisions thereof.

[6]In the result the following order is made:

1.The accused is found not guilty on count 1 and 2 in terms of section 78(6) if the Criminal Procedure Act, 1977 (Act 51 of 1977) as amended.

2.It is ordered that the accused be detained in a mental hospital or a correctional facility pending the signification of the decision of the State President.

3.It is further ordered that the patient be brought before Dr Ndahambelela Frederika Mthoko of the Psychiatric Hospital in Windhoek so that she can prescribe further treatment and give her prognoses in accordance with regulation 6(4) (h) and (i) of the General Regulations published under article 77(1) of the Mental Health Act, 1973 (Act 18 of 1973).

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MA Tommasi

Judge

APPEARANCE

For State:Adv Shileka

Prosecutor General Office

For Accused:Mr P Greyling

Instructed By Legal Aid

OfGreyling And Associates