| (1) | Where a court issues a direction under section 77(1) or 78(2), the relevant enquiry shall be conducted and be reported on— |
| (a) | where the accused is charged with an offence other than one referred to in paragraph (b), by the head of the designated health establishment designed by the court, or by another psychiatrist delegated by the head concerned; or |
| (b) | where the accused is charged with murder or culpable homicide or rape or compelled rape as provided for 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, or where the court in any particular case so directs— |
| (i) | by the head of the designated health establishment, or by another psychiatrist delegated by the head concerned; |
| (ii) | by a psychiatrist appointed by the court; |
| (iii) | by a psychiatrist appointed by the court, upon application and on good cause shown by the accused for such appointment; and |
| (iv) | by a clinical psychologist where the court so directs. |
[Section 79(1) substituted by section 3(a) of Act No. 4 of 2017]
| (1A) | The prosecutor undertaking the prosecution of the accused or any other prosecutor attached to the same court shall provide the persons who, in terms of subsection (1), have to conduct the enquiry and report on the accused’s mental condition or mental capacity with a report in which the following are stated, namely— |
[Words preceding Section 79(1A)(a) substituted by section 3(b) of Act No. 4 of 2017]
| (a) | whether the referral is taking place in terms of section 77 or 78; |
| (b) | at whose request or on whose initiative the referral is taking place; |
| (c) | the nature of the charge against the accused; |
| (d) | the stage of the proceedings at which the referral took place; |
| (e) | the purport of any statement made by the accused before or during the court proceedings that is relevant with regard to his or her mental condition or mental capacity; |
| (f) | the purport of evidence that has been given that is relevant to the accused’s mental condition or mental capacity; |
| (g) | in so far as it is within the knowledge of the prosecutor, the accused’s social background and family composition and the names and addresses of his or her near relatives; and |
| (h) | any other fact that may in the opinion of the prosecutor be relevant in the evaluation of the accused’s mental condition or mental capacity. |
[Section 79(1A) inserted by section 6(b) of Act No. 68 of 1998]
| (a) | The court may for the purposes of the relevant enquiry commit the accused to a psychiatric hospital or to any other place designated by the court, for such periods, not exceeding thirty days at a time, as the court may from time to time determine, and where an accused is in custody when he is so committed, he shall, while he is so committed, be deemed to be in the lawful custody of the person or the authority in whose custody he was at the time of such committal. |
| (b) | When the period of committal is for the first time extended under paragraph (a), such extension may be granted in the absence of the accused unless the accused or his legal representative requests otherwise. |
[Section 79(2)(b) inserted by section 4 of Act No. 4 of 1992]
| (c) | The court may make the following orders after the enquiry referred to in subsection (1) has been conducted— |
| (i) | postpone the case for such periods referred to in paragraph (a), as the court may from time to time determine; |
| (ii) | refer the accused at the request of the prosecutor to the court referred to in section 77 (6) which has jurisdiction to try the case; |
| (iii) | make any other order it deems fit regarding the custody of the accused; or |
[Section 79(2)(c) inserted by section 6(c) of Act No. 68 of 1998]
[Section 79(2) substituted by section 44 of Act No. 129 of 1993]
| (3) | The relevant report shall be in writing and shall be submitted in triplicate to the registrar or, as the case may be, the clerk of the court in question, who shall make a copy thereof available to the prosecutor and the accused. |
| (a) | include a description of the nature of the enquiry; and |
| (b) | include a diagnosis of the mental condition of the accused; and |
| (c) | if the enquiry is made under section 77(1), include a finding as to whether the accused is capable of understanding the proceedings in question so as to make a proper defence; or |
| (d) | if the enquiry is in terms of section 78(2), include a finding as to the extent to which the capacity of the accused to appreciate the wrongfulness of the act in question or to act in accordance with an appreciation of the wrongfulness of that act was, at the time of the commission thereof, affected by mental illness or intellectual disability or by any other cause. |
[Section 79(4)(d) substituted by section 3(c) of Act No. 4 of 2017]
| (5) | If the persons conducting the relevant enquiry are not unanimous in their finding under paragraph (c) or (d) of subsection (4), such fact shall be mentioned in the report and each of such persons shall give his finding on the matter in question. |
| (6) | Subject to the provisions of subsection (7), the contents of the report shall be admissible in evidence at criminal proceedings. |
| (7) | A statement made by an accused at the relevant enquiry shall not be admissible in evidence against the accused at criminal proceedings, except to the extent to which it may be relevant to the determination of the mental condition of the accused, in which event such statement shall be admissible notwithstanding that it may otherwise be inadmissible. |
| (8) | A psychiatrist and a clinical psychologist appointed under subsection (1), other than a psychiatrist and a clinical psychologist appointed for the accused, shall, subject to the provisions of subsection (10), be appointed from the list of psychiatrists and clinical psychologists referred to in subsection (9)(a). |
[Section 79(8) substituted by section 8(a) of Act No. 42 of 2001]
| (9) | The Director-General: Health shall compile and keep a list of— |
| (a) | psychiatrists and clinical psychologists who are prepared to conduct any enquiry under this section; and |
| (b) | psychiatrists who are prepared to conduct any enquiry under section 286A(3), |
and shall provide the registrars of the High Courts and all clerks of magistrates’ courts with a copy thereof.
[Section 79(9) substituted by section 8(b) of Act No. 42 of 2001]
| (10) | Where the list compiled and kept under subsection (9)(a) does not include a sufficient number of psychiatrists and clinical psychologists who may conveniently be appointed for any enquiry under this section, a psychiatrist and clinical psychologist may be appointed for the purposes of such enquiry notwithstanding that his or her name does not appear on such list. |
[Section 79(10) substituted by section 8(c) of Act No. 42 of 2001]
| (a) | A psychiatrist or clinical psychologist designated or appointed under subsection (1) by or at the request of the court to enquire into the mental condition of an accused and who is not in the full-time service of the State, shall be compensated for his or her services in connection with the enquiry from public funds in accordance with a tariff determined by the Minister in consultation with the Minister of Finance. |
| (b) | A psychiatrist appointed under subsection (1)(b)(iii) for the accused to enquire into the mental condition of the accused and who is not in the full-time service of the State, shall be compensated for his or her services from public funds in the circumstances and in accordance with a tariff determined by the Minister in consultation with the Minister of Finance. |
[Section 79(11) substituted by section 8(d) of Act No. 42 of 2001]
| (12) | For the purposes of this section a psychiatrist or a clinical psychologist means a person registered as a psychiatrist or a clinical psychologist under the Health Professions Act, 1974 (Act No. 56 of 1974). |
[Section 79(12) substituted by section 8(e) of Act No. 42 of 2001]
| (13) | [Section 79(13) deleted by section 3(d) of Act No. 4 of 2017] |
