James Grant

In the conduct of Pistorius’s defence, through the testimony of Dr Vorster, the criminal capacity of Pistorius has been placed in issue. Criminal capacity, together with the requirement that your conduct must be voluntary, are the bases upon which our law enquires whether you are a responsible person – whether it makes any sense to hold you criminally liable in law and to punish you. We take it that it would not be sensible to punish, for instance, rocks and trees. It wouldn’t make much sense, if the limb of a tree fell on you, to charge the tree with assault. In our law capacity requires that a person must possess two abilities: 1) to appreciate the wrongfulness of his or her conduct (referred to as “insight”); 2) to act in accordance with that appreciation (referred to as “self-control”).
In our law, one may lack capacity because of mental illness (this was previously called the “insanity” defence – now called pathological incapacity) and youth (very young children below 10 years are regarded as lacking capacity). More recently (although controversially) we have recognised that severe intoxication (S v Chretien 1981 AD), and severe emotional stress (S v Wiid 1990 AD; Eadie 2002 SCA) can deprive a person of capacity and responsibility. Cases of non-responsibility due to severe emotional stress have come to be called non-pathological criminal incapacity (“non-path”). In the case of Eadie the Supreme Court of Appeal confirmed that non-path is a valid and complete defence in South African Law – in theory. The judgment went further though and raised the bar for claims of this defence. The effect of this judgement (Eadie) has been to virtually shut down the defence in practice.
An astute observer may ask whether there is any relationship between a claim to lack capacity and the second apparent defence raised by Pistorius – in his own testimony – that he acted involuntarily (see “Pistorius’s Second Defence: Involuntariness” on this site). The answer is that there is. In the leading case of S v Eadie (referred to above – which effectively shut down the defence of non-pathological criminal incapacity in practice) the SCA indicated that the requirement of capacity to act in accordance with an appreciation of wrongfulness (the second leg of capacity) and voluntariness were equivalent. This is the reason why non-pathological incapacity became such a difficult defence – because involuntariness is a difficult defence to succeed with. The court in Eadie indicated that a defence of incapacity to conduct oneself in accordance with an appreciation of wrongfulness must be established on the same basis as a defence if involuntariness. A defence of involuntariness is exceedingly difficult to prove. The essence of involuntariness is that the accused’s mind did not control his/her conduct. Well known examples are instances of epilepsy and sleepwalking. Also, the prosecution is aided by a form of presumption (“a natural inference”) that the court will rely on: that conduct of an accused is ordinary voluntary and that if the accused wishes to disturb this natural inference, the accused will have to lay a sound basis for this. There seems to be no sound basis for a claim to incapacity for self control or involuntariness – unless the testimony of Dr Vorster is treated as such, or perhaps, the enquiry that her evidence triggered may provide. Her evidence, apparently (if media reports are correct) included statements that Pistorius would respond “differently” (presumably to “normal” people) and also that his mental condition may have affected his ability to control his conduct (act in accordance with an appreciation of wrongfulness).
If a person’s capacity is placed in issue, a court may refer the accused for an enquiry into his/her mental condition (s 78(2)). At this point, the provision is permissive – the Court may refer the accused. If, however, a mental illness is implicated as the reason why the accused’s capacity for self-control may have been absent, and the prospect of a pathological incapacity (“insanity”) defence is raised, the Court must refer the accused – the court has no discretion. Vorster diagnosed the accused with a psychiatric disorder (generalised anxiety disorder) and insisted that this did not constitute a mental illness for the purpose of a defence of pathological incapacity. The issue then turned on whether the condition that Vorster diagnosed did constitute a mental illness. A mental condition or disorder must constitute a mental illness (or defect) to form the basis of a pathological incapacity defence. The obvious question then is what is a mental illness or defect?
The defence of pathological incapacity (“insanity”) appears in s 78 (1) of the Criminal Procedure Act:
“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 mental defect which makes him or her incapable—
(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.”
Notably there is no definition in the Act or the law at all for a mental illness or defect. The closest the law has ever come to a definition, and this seems to be treated as the unofficial definition, was stated in S v Stellmacher (1983 SWA): mental illness or defect must be: 1) a pathology and 2) of endogenous (internal) origin. Regrettably, this is unhelpful. A pathology is simply a synonym for illness. There is also some suggestion that the disorder should be somehow “morbid” (S v Mabena 2007 SCA), but regrettably, this only means, once again, that the condition must be a disease condition, which is another synonym for illness.
On the (2nd) requirement that the disorder must be of “internal” origin, this is a virtually impossible criteria to apply and one that attracts deep controversy in the social sciences as to whether a valid distinction can be drawn on the basis of the source of a disorder. It is so contested that the Diagnostic and Statistical Manual of Mental Disorders (DSM, which lists all currently recognised mental disorders) only rarely comments on the source. The one clear exception is in respect of post traumatic stress disorder in respect of which the DSM stipulates that it is caused by an extraordinarily stressful event. The problem is that it seems well recognised that most disorders arise out of a combination of “internal” and “external” factors. While an internal factor, such as a person’s genes, may predispose the person to developing a particular disorder, the “trigger” for the disorder may well come from the person’s environment (external to the person).
In the circumstances, there is truly no reliable definition. At this point one may think that it is just as well that a matter is referred to an expert panel of mental health practitioners – surely they can tell the court. However, one must wonder how a mental health practitioner can possible tell the court whether a disorder is a mental illness or not because these concepts are “legal concepts” which remain undefined in law.
One may wonder how our law proceeds in the circumstances – you would do well to wonder. It is a source of deep mystery.
In the Pistorius case the court was confronted with testimony of a well respected mental health expert to the effect that Pistorius suffered from a mental disorder that would (indirectly) make him dangerous and took the view that this may reasonably possibly (S v Malatji 2013 GNP) constitute a mental illness. Once that was recognised and coupled with Voster’s testimony that Pistorius’s capacity for self-control at the time of the conduct in question may have been affected, the court had no choice. It had to refer him (s78(2)).
What remains of some interest is whether Pistorius will be committed for 30 days, as is customary, or be observed as an outpatient. It would unquestionably be exceptional for a referral to be observed as an outpatient, but that is perhaps not enough for anyone to question why Judge Masipa would even contemplate this. We should, of course, wait for her actual order and her reasons for the order she makes. We owe her at least that, and more.
However, while we will have to wait and see, it is worthwhile observing that an enquiry ordered in terms of s 79(2)(a) does not require commitment for 30 days – it permits it – the word is “may”. The wording of the sections is as follows:
“(2) (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, …” (Authors emphasis)
Beyond that, perhaps there is already something in what Judge Masipa has said that we should celebrate. We should celebrate a judge who shows preparedness to do something unconventional – so long as it serves its purpose. Just because the convention is to commit accused people for 30 days doesn’t make it right, and doesn’t require that we continue this practice if there is a better alternative.
In my view an order that Pistorius is to be observed as an outpatient will not achieve the required purpose. A mental health enquiry is ordinarily done on an in-patient basis to permit for constant observation: 24/7. This allows psychiatrists, psychiatric nurses, social workers and psychologists to observe the patient in all contexts, in interaction with other patients, at night, to observe how much and how well an accused sleeps and eats, and allows the psychiatrists to take complete control of an accused’s medication. I doubt this extent of control and observation can be dispensed with. Nevertheless, it is always refreshing and encouraging to hear a judge question the status quo.