[Section 78 heading substituted by section 2(a) of Act No. 4 of 2017]
| (1) | A person who commits an act or makes an omission which constitutes an offence and who at the time of such commission or omission suffers from a mental illness or intellectual disability which makes him or her incapable— |
[Words preceding Section 78(1)(a) substituted by section 2(b) of Act No. 4 of 2017]
| (a) | of appreciating the wrongfulness of his or her act or omission; or |
| (b) | of acting in accordance with an appreciation of the wrongfulness of his or her act or omission, |
shall not be criminally responsible for such act or omission.
[Section78(1) substituted by section 5(a) of Act No. 68 of 1998]
| (1A) | Every person is presumed not to suffer from a mental illness or intellectual disability so as not to be criminally responsible in terms of section 78(1), until the contrary is proved on a balance of probabilities. |
[Section 78(1A) substituted by section (2)(c) of Act No. 4 of 2017]
| (1B) | Whenever the criminal responsibility of an accused with reference to the commission of an act or an omission which constitutes an offence is in issue, the burden of proof with reference to the criminal responsibility of the accused shall be on the party who raises the issue. |
[Section 78(1B) inserted by section 5(b) of Act No. 68 of 1998]
| (2) | If it is alleged at criminal proceedings that the accused is by reason of mental illness or intellectual disability or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or intellectual disability, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79. |
[Section 78(2) substituted by section 2(d) of Act No. 4 of 2017]
| (3) | If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence. |
| (4) | If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused. |
| (5) | Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 enquired into the mental condition of the accused. |
| (6) | If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or intellectual disability not criminally responsible for such act— |
| (a) | the court shall find the accused not guilty; or |
| (b) | if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty, |
by reason of mental illness or intellectual disability, as the case may be, and direct—
| (i) | in a case where the accused is charged with murder or culpable homicide or rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be— |
| (aa) | detained in a psychiatric hospital; |
| (bb) | temporarily detained in a correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital and be transferred where a bed becomes available, if the court is of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to himself or herself or to members of the public, |
pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002;
| (cc) | admitted to and detained in a designated health establishment stated in the order and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002; |
| (dd) | released subject to such conditions as the court considers appropriate; |
| (ee) | released unconditionally; or |
| (ff) | referred to a Children's court as contemplated in section 64 of the Child Justice Act, 2008, and pending such referral be placed in the care of a parent, guardian or other appropriate person or, failing that, placed in temporary safe care as defined in section 1 of the Children's act, 2005; or |
| (ii) | in any other case than a case contemplated in subparagraph (i), that the accused be— |
| (aa) | admitted to and detained in a designated health establishment stated in the order and treated as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002; |
| (cc) | released subject to such conditions as the court considers appropriate; |
| (dd) | released unconditionally; or |
| (ee) | referred to a Children’s Court as contemplated in section 64 of the Child Justice Act, 2008, and pending such referral be placed in the care of a parent, guardian or other appropriate person or, failing that, placed in temporary safe care as defined in section 1 of the Children’s Act, 2005. |
[Section 78(6) substituted by section 2(e) Act No. 4 of 2017]
| (7) | If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or intellectual disability, the court may take the fact of such diminished responsibility into account when sentencing the accused. |
[Section 78(7) substituted by section 2(f) Act No. 4 of 2017]
| (a) | An accused against whom a finding is made under subsection (6) may appeal against such finding if the finding is not made in consequence of an allegation by the accused under subsection (2). |
| (b) | Such an appeal shall be made in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence. |
| (9) | Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the finding and the direction under that subsection and remit the case to the court which made the finding, whereupon the relevant proceedings shall be continued in the ordinary course. |
