(INSERT TITLE)

by

(INSERT FULL NAMES AND UNISA STUDENT NUMBER)

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: PROF MG KARELS

(PORTFOLIO / ASSIGNMENT 03: 778314)

2018

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ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s

policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in this assignment from the
work or works of other people has been referenced according to the
prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the
intention of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my own.

NAME: …………………………………………………………………………………….

SIGNATURE: …………………………………………………………………………….

STUDENT NUMBER: ……………………………………………………………………

MODULE CODE: ....................................................................................................

DATE: ……………………………………………………………………………….

RESEARCH THEME SELECTED: ……………………….…………………………….

MARK RECEIVED FOR ASSIGNMENT 01: ………………………………………….

MARK RECEIVED FOR ASSIGNMENT 02: …………………………………………...

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CONTENTS:

ACADEMIC HONESTY DECLARATION...................................................................2

1. WORKING TITLE.................................................................................................4

2. RESEARCH INTRODUCTION.............................................................................4

3. PROBLEM STATEMENT.....................................................................................4

4. HYPOTHESIS...................................................................................................... 5

5. POINTS OF DEPARTURE AND ASSUMPTIONS...............................................5

6. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES.........................6

6.1 Child...............................................................................................................6

6.2 Child Offender................................................................................................6

6.3 Mental Health Status......................................................................................6

6.4 Mental Illness.................................................................................................7

6.5 Mental Health Assessment................................................................................7

7. PROPOSED CHAPTER OUTLAY.......................................................................7

8. PROJECTED TIME-FRAME FOR SUBMISSION................................................8

9. DESCRIPTION OF RESEARCH METHODOLOGY.............................................9

10. BIBLIOGRAPHY.............................................................................................10

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1. WORKING TITLE

INSERT THE TITLE OF YOUR RESEARCH.

2. RESEARCH INTRODUCTION

BELOW IS AN EXAMPLE. YOU MUST SUBSTITUTE WITH YOUR

INTRODUCTION.

This research product intends to provide an in-depth explanation on the criminal trial
of mentally ill accused persons in the South African criminal justice system and to
compare these with the criminal court procedures applicable to mentally ill accused
persons in Canada.

In order to explain the criminal procedures applicable to the trial of a mentally ill
accused person, the researcher critically investigates and analyses selected
provisions of the Criminal Procedure Act,1 the Child Justice Act2 and gives due
regard to the case of De Vos NO and Another v Minister of Justice and
Constitutional Development and Others,3 especially in light of the constitutionality of
the selected provisions.

The intention of this research is to provide advice on the protection of fair-trial rights
of mentally ill accused persons by way of comparison and to provide
recommendations which hope to advance the rights of mentally ill accused persons
in South Africa. Further to the above, this research product aims to highlight certain
inadequacies within the current South African legal framework as it relates
specifically to the processing of a mentally ill child offender.

3. PROBLEM STATEMENT

1
51 of 1977.
2
75 of 2008.
3
De Vos NO and Another v Minister of Justice and Constitutional Development and Others
2015 (1) SACR 18 (WCC).

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INSERT YOUR PROBLEM STATEMENT HERE.

4. HYPOTHESIS

BELOW IS AN EXAMPLE. YOU MUST SUBSTITUTE WITH YOUR HYPOTHESIS.

According to Karels and Pienaar “…the Child Justice Act [purportedly] provides for
the evaluation of the criminal capacity of a child where such is disputed. The
question arising therefrom, however, is if the process created in the Child Justice Act
creates a distinct inquiry to that provided for in the Criminal Procedure Act.”4 The
researcher supports the statement of the authors above and intends to highlight the
lack of provisions relating to the mentally ill child offender within the best-interest
based framework of the Child Justice Act.

Through the critical investigation of applicable legislation, it was noted that mentally
ill child offenders are referred for a decision relating to their potential mental illness
or defect in terms of section 77 or 78 of the Criminal Procedure Act. 5 It could be said
that this referral defeats the purpose of the Child Justice Act.6

Further to the above, the constitutionality of certain provisions contained in section

77,7 have been challenged.8 It was submitted that the provisions of section 77(6)(a) 9
are unconstitutional, because they infringe the rights of children, as protected by
section 28(1)(g), read with section 28(2) of the Constitution of the Republic of South
Africa, 1996.

5. POINTS OF DEPARTURE AND ASSUMPTIONS

INSERT YOUR POINT OF DEPARTURE AND ASSUMPTIONS HERE.

4
Karels MG and Pienaar L “Determination of criminal capacity for child offenders – interfacing
the procedural requirements of the Child Justice and Criminal Procedure Act” Obiter 33 (1)
2015 57-78 at 57.
5
Child Justice Act 75 of 2008, section 48(5)(b).
6
75 of 2008.
7
Of the Criminal Procedure Act 51 of 1977.
8
See De Vos NO and Others v Minister of Justice and Constitutional Development and Others
2015 (2) SACR 217 (CC).
9
Of the Criminal Procedure Act 51 of 1977.

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6. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES

BELOW ARE EXAMPLES. SUBSTITUTE WITH YOUR RESEARCH

THEMES/TERMS.

6.1 Child

According to the Constitution, a child is a person under the age of 18 years. 10 Age is
of importance within the framework of the Child Justice Act as the Act provides for
criminal capacity or lack thereof based on age.11

For the purposes of this research, the word child is any person under the age of 18
years old.

6.2 Child Offender

A child offender is a person below the age of 18 years who is suspected in the
commission of an offence.12 According to the South African Law Commission Project
106, use of the terms juvenile, youth and child were discussed and debated and the
conclusion was that the use of the phrase child offender would be better suited to
South Africa human rights framework with its emphasis on dignity and equality.13

6.3 Mental Health Status

According section 1 of the Mental Health Care Act, mental health status means, the
level of mental well-being of an individual as affected by physical, social and
psychological factors and which may result in a psychiatric diagnosis.14

For the purposes of this research the definition contained in the Mental Health Care
Act is accepted as valid.

10
Constitution of South Africa 1996, section 28(3). See also Child Justice Act 75 of 2008,
section 1. See also Convention of the Rights of the Child, article 1.
11
Child Justice Act 75 of 2008, section 7.
12
Karels MG, “Child Offenders in the South African criminal justice system: a critical analysis of
the applicability of the “open justice” principle” (unpublished LLD 2015 University of South
Africa), 15.
13
South African Law Commission, Project 106, Juvenile Justice Report, page 23.
14
Mental Health Care Act 17 of 2002 section 1.

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6.4 Mental Illness

According to section 1 of the Mental Health Care act, mental illness means, a
positive diagnosis of a mental health related illness in terms of accepted diagnostic
criteria made by a health care practitioner authorised to make such a diagnosis.15

For the purposes of this research the definition contained in the Mental Health Care
Act is accepted as valid.

6.5 Mental Health Assessment

For the purposes of this research, mental health assessment refers to the inquiry into
the mental health status of a person as directed by the courts in terms of section 79
of the Criminal Procedure Act.16

7. PROPOSED CHAPTER OUTLAY

BELOW IS AN EXAMPLE. SUBSTITUTE WITH YOUR PROPOSED CHAPTER

OUTLAY.

This research will be set in four chapters, to wit:

Chapter 1: Conceptualisation of research problem and contextualisation of

research themes

Chapter 1 introduces terms and concepts central to the research, as well as the
researcher’s hypotheses. Chapter 1 further includes an introduction to the research
and outlines the methodology of the research product.

Chapter 2: Critical analysis of legislation

Chapter 2 critically examines relevant sections of appropriate legislation as well as

relevant case law with regards to the assessment and trial of mentally ill accused
persons in South Africa. This chapter aims to highlight the undesirable features of all
15
Mental Health Care Act 17 of 2002 section 1.
16
Criminal Procedure Act 51 of 1977 section 79.

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applicable legislation which includes the Criminal Procedure Act 51 of 1977 as well
as the Child Justice Act 75 of 2008.

Chapter 3: Comparative inquiry: South Africa and Canada

Chapter 3 examines and compares the fair-trial rights of the mentally ill accused
person in South Africa and Canada. This chapter will highlight points of similarity and
difference with specific focus on the assessment and processing of mentally ill child
offenders.

Chapter 4: Conclusions and recommendations

Chapter 4 presents the researchers conclusions resultant from previous chapters.

This chapter further includes the researcher’s recommendations on how to further
the fair trial rights of mentally ill accused persons in South Africa.

8. PROJECTED TIME-FRAME FOR SUBMISSION

BELOW IS AN EXAMPLE. SUBSTITUTE WITH YOUR PROPOSED PROJECTED

TIMEFRAME FOR SUBMISSION.

This research product intends to be submitted for comment according to the timeline
of submission dates provided below.

CHAPTER: SUBMISSION DATE: COMMENTARY:

Chapter 1 31st May 2018 16th June 2018
Chapter 2 30th June 14th July 2018
Chapter 3 31st July 2018 14th August 2018
Chapter 4 31st August 2018 15th September 2018
Final Product 24th November 2018

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9. DESCRIPTION OF RESEARCH METHODOLOGY

BELOW IS AN EXAMPLE. SUBSTITUTE WITH YOUR PROPOSED

METHODOLOGY.

The researcher will make use of a comparative methodology as further elucidated

hereunder. The comparative jurisdiction selected for this research is Canada.
Canada, is particularly advanced in the field of mental health law specifically as it
relates to criminal law. It is for this reason that the researcher has chosen to
interrogate the tenets of Canadian law on the topic of the assessment and trial of
mentally ill offenders.

The research uses a desk-top method of research. The focus is on both primary and
secondary research sources, literature includes legislation, case law, electronic
sources, textbooks as well journal articles. The research is comparative, and the
researcher compares the position in South Africa with the approach taken in
Canada.

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10. BIBLIOGRAPHY

INSERT YOUR BIBLIOGRAPHY IN THE CORRECT FORMAT ACCORDING TO

THE CITATION GUIDE AND EARLIER COMMENTS MADE ON MYUNISA UNDER
THE ANNOUNCEMENT SECTION.

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