Two high profile murder trials in South Africa are currently pending the outcome of psychiatric assessments at state hospitals: Oscar Pistorius, charged with the murder of his girlfriend Reeva Steenkamp, and Shrien Dewani, charged with the murder of his wife, Anni. A third murder trial was adjourned this week at the point of sentencing, when it emerged that one of three other accused killers, all already convicted of murdering an elderly couple and their son in March this year, suffered from delusions. As the judge halted proceedings and asked for a psychiatrist’s report, the surviving son, Stefan Schutte said it was “madness.”
Certainly it seems that madness is the theme, even though it has not been proven in any of the cases. On Monday Pistorius was ordered to attend Weskoppies Psychiatric Hospital every weekday from 9 a.m. until 4 p.m. (or as required by the medical staff) from Monday May 26 for 30 days. A panel of three psychiatrists and a clinical psychologist will assess whether he was “criminally responsible” and able to appreciate the “wrongfulness” of what he did in the early hours of February 14 last year, when he shot and killed Reeva Steenkamp by firing four bullets into the door of a toilet cubicle in his Pretoria home. Judge Thokozile Masipa adjourned the case to June 30.
Shrien Dewani, known internationally as the honeymoon murder-accused, spent three years fighting against his extradition from the United Kingdom to stand trial in South Africa for allegedly masterminding his new wife Anni’s kidnapping and fatal shooting in a Cape Town township in 2010. Three men, including the taxi driver who drove the couple to the township, have all been convicted of murder and are currently behind bars. Dewani was flown to Cape Town early April and is being assessed at Valkenberg Psychiatric Hospital in Cape Town. He appeared briefly in the Western Cape High Court on May 12, but was sent back to the mental hospital for at least another month.
The deceased in the third murder trial mentioned above are Ekard and Elizabeth Schutte and their son Lutz, who were all brutally stabbed to death on their farm in KwaZulu-Natal on March 1 this year. One of the convicted murderers, 19-year-old Zamo Maduna was a trusted employee of the family, and it is he who is now being described as delusional. Maduna and his two accomplices, Lindokuhle Khoza, 18, and Siphesihle Ngubane, 20, pleaded guilty to the murders. In a murder plot masterminded by Maduna, the three admit that they planned to rob and then kill 76-year-old Ekard Schutte. After luring him outside, they stabbed him and went into the house where they waited for his 66-year-old wife who had keys to the safe. When she and her younger son arrived home, the killers stabbed and killed Lutz, bound and gagged Elizabeth, and then after making her open the safe, cut her throat. They then poured petrol onto the dead bodies and lit them in an endeavor to destroy all evidence of the crime. The trial was adjourned to July 29.
While the accused in all three cases are all required to have psychiatric assessments, the issues at stake are all quite different. Nevertheless all hinge on the requirements of South Africa’s Criminal Procedure Act that details all the processes for criminal proceedings, including murder charges.
Criminal Proceedings for Murder Accused
Promulgated in 1977, the Criminal Procedure Act covers everything from search warrants, arrests, bail, charges and trial procedures, including trials in the “superior” or supreme court by a judge who may sit with (as is the Oscar Pistorius trial) or without assessors. South Africa does not have a jury system, and unlike juries in other countries that are made up of ordinary citizens, assessors are specifically people who have “experience in the administration of justice.”
In the U.S. murder – or criminal homicide – refers to the “unlawful taking of the life” of another person. Most states differentiate between different types of murder, including first-degree murder that is premeditated, and murder that is committed when the person is committing another crime. The latter is sometimes referred to as felony murder; an example would be the death of a person who is hit by a car fleeing a crime scene. In this instance, everyone in the escape vehicle might be charged with felony murder, and not just the driver.
In the U.S. first-degree murder is intentional, is planned, and requires “evil intent” or malice. Second-degree murder may be intentional, but is not premeditated – like a so-called crime of passion when a husband kills his wife in a fit of rage. Manslaughter is the term for a killing that was an accident, a common example being a fatal motor vehicle accident.
In South Africa, a charge of murder may be straightforward. The Criminal Procedure Act states that a charge of murder or culpable homicide is “sufficient if it alleges fact of killing.” Both charges refer to unlawful killing; the difference is that murder is intentional and culpable homicide is not. If evidence on a charge of murder does not prove murder, the judge can find the accused guilty of several lesser offences including culpable homicide and “assault with intent to do grievous bodily harm.”
These differences often prove confusing to lay-people following or covering murder trials, including foreign journalists. For instance, as Johannesburg attorney, David Dadic points out that while many media channels continue to report that Oscar Pistorius has been charged with “premeditated murder,” this is not the case. Another common error is that he stands to get a maximum sentence of 25 years if convicted of murder. In fact Pistorius is charged with “Murder – read with the provisions of Section 51 (1) of Act 105 of 1997.” This piece of legislation, the Criminal Law Amendment Act, states that Pistorius could receive a life sentence if convicted of murder. In addition, Pistorius has been charged with three contraventions of the Firearms Control Act.
For Pistorius to be convicted of murder, the state needs to prove he intended to kill Steenkamp. Dadic explains that intent is essentially a “wrongful state of mind” that can be attached to the crime. This is not the same as motive, which, he says “relates to reasons or factors” that induce a person to commit a wrongful act.
Motive and intent are NOT the same thing. David Dadic, attorney
While Shrien Dewani has also been accused of murder, his charges are quite different to those of Pistorius, since it is known that he did not kill Anni. He is accused of contravening the Riotous Assembly Act with conspiracy to commit kidnapping, robbery with aggravating circumstances and/or murder. He has also been charged with obstructing the administration of justice. Zamo Maduna and his co-accused were accused of murder, house robbery with aggravated circumstances and several other charges.
The subject of psychiatric assessment is also covered in the Criminal Procedure Act, specifically Chapter 13, Accused: Capacity To Understand Proceedings: Mental Illness And Criminal Responsibility. There are three section: 77 deals with the capacity of an accused to be able to understand court proceedings; 78 deals with mental illness or defect, and with criminal responsibility; and 79 deals with the panel that is established to enquire into the behavior of an accused, and report on it.
Mental Observation and Involuntary Detention in Psychiatric Hospitals
While the next step in the trials of Pistorius, Dewani and Maduna all rely on the outcome of psychiatrists’ reports, the issues are again quite different. For Dewani it is whether he is fit to stand trial. If not found to be fit to stand trial within 18 months of his arrival in South Africa on April 8 this year, he will be free to return to Britain according to an agreement between the British and South African authorities.
For Maduna, the psychiatrist’s report ordered by the judge may be used in mitigation of sentence, although the Act does say that if it is found that a convicted person had a mental illness or defect and was therefore “not criminally responsible,” the court should “set the conviction aside and find the accused not guilty.” However if this happens, the accused might be detained in a psychiatric hospital or a prison pending the judge’s decision in terms of the Mental Health Act. Alternatively, the accused might be:
- detained and treated in a state psychiatric hospital
- treated as an outpatient at a state psychiatric hospital
- released subject to terms and conditions specified by the court
- released unconditionally
In the Pistorius case, the accused has already been found fit to stand trial – without the need for observation at a psychiatric hospital. And he has not yet been convicted, so there is not cause (at this point in time) for an assessment that might be used in mitigation of sentence. Instead, Pistorius has been referred to a state psychiatric hospital in terms of the Criminal Procedure Act following evidence from state witness Dr. Merryl Voster, a forensic psychiatrist who diagnosed him with a recognized psychiatric condition known as general anxiety disorder (GAD).
Many have commented in both the mainstream and social media about the implications of Pistorius being sent for observation. A common assessment is that state prosecutor Gerrie Nel needed to immediately negate the possibility of a lack of criminal responsibility being used in mitigation if Pistorius is eventually convicted of murder as charged. Ulrich Roux, a young advocate who has been featured on the official Oscar Pistorius TV trial channel 199 wrote in an article printed in last weekend’s Sunday Times newspaper that Nel had no option but to bring the application for Pistorius to be assessed. Further, he wrote that Judge Masipa did the correct thing in ruling for the evaluation.
There were two issues, he stated: a person who lacks criminal liability cannot be convicted of a crime; and if a person is convicted, and evidence of a lack of criminal liability is lead, the conviction might be set aside and the accused “discharged.” This, he wrote was “a risk that Nel did not want to take and he chose to deal with the issue of criminal liability now.”
Dadic points out that if Pistorius is found to be mentally ill, this does not mean he will be automatically acquitted. Quoting case law from 1965, he says that it is the function of the psychiatric panel appointed by the court to make a diagnosis, not to decide on criminal responsibility. This will be up to the court – in this case Judge Masipa and her two assessors – to decide. He states that one possibility, if Pistorius is found to be suffering from a “pathological condition,” would be that he was acquitted and retained indefinitely in a state psychiatric facility. However, it was also possible that even if diagnosed to have a mental defect, he might be found guilty but with a verdict of “diminished responsibility,” which would result in a reduced sentence.
Another possibility, according to Dadic, is that it might be found that the condition Pistorius suffered from on February 14, 2013 was temporary and not a mental defect as such. This could, he states, result in an acquittal because of his state of mind at the time. A fourth possibility would be for Pistorius to be found to be “of sound mental state.” This would negate Dr. Voster’s report and could result in his version of events being dismissed, leading to a conviction. Since the Voster report was based on only two consultations with the accused, this is probably why Roux argued so intensely against the application for him to be assessed, “because he will know that this risk could cost Oscar everything.”
In 2012, Johan Kotze, accused of plotting his ex-wife’s gang rape and of killing her son, was sent to Weskoppies to ascertain whether he was fit to stand trial. Three psychiatrists assessed him and he was found to be accountable for his actions. He was convicted of murder in July last year and sentenced to life imprisonment without leave to appeal. The defense argued in mitigation of sentence that he had a narcissistic personality disorder (which some commentators have stated they believe Pistorius has), suffered from an “acute stress disorder,” and had major depression. A psychologist for the state testified that he had no mental disorders and the court should hold him accountable for his actions – which it did.
The implications of mental illness and the possible madness of a murder accused can go in any direction, depending on both their state of mind and the diagnosis of psychologists and psychiatrists. These professionals play a pivotal role in the outcome of murder trials of people like Oscar Pistorius, Shrien Dewani and other killers. But ultimately it will be up to the judge and possibly the judge’s assessors.
By Penny Swift
Criminal Procedure Act
HG Legal Resources
Who’s Your Dadic?
The Oscar Pistorius Trial: Could he Walk?
Guardian Liberty Voice
Sunday Times May 18, 2014: Expect the unexpected as evidence is scrutinized By Ulrich Roux