Mental illness or mental defect and criminal responsibility 7 8 (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 mental defect which makes him or her incapable— (a)
of appreciating the wrongfulness of his or her act or omission; or
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. [Subs. (1) substituted by s. 5 (a) of Act No. 68 of 1998.] (1A) Every person is presumed not to suffer from a mental illness or mental defect so as not to be criminally responsible in terms of section 78 (1), until the contrary is proved on a balance of probabilities.
[Subs. (1A) inserted by s. 5 (b) of Act No. 68 of 1998.] (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.
[Subs. (1B) inserted by s. 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 mental defect 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 mental defect, 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.
[Subs. (2) substituted by s. 5 (c) of Act No. 68 of 1998.] (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 crossexamine 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—
the court shall find the accused not guilty; or
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 another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be—
detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002;
admitted to and detained in an institution stated in the order and treated as if he or she were an involuntary mental care health user contemplated in section 37 of the Mental Health Care Act, 2002;
. . . . . .
[Item (cc) deleted by s. 13 of Act No. 55 of 2002.]
released subject to such conditions as the court considers...
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