Section
29(2) of the Mental Health Act, which provides for a special verdict,
refers to section 248 of the Criminal Law (Reform and Codification)
Act [Chapter 9:23] as the section which provides for a mental
disorder or defect being a complete defence. It provides as follows;
“(2)
If a judge or magistrate presiding over a criminal ...
Section
29(2) of the Mental Health Act, which provides for a special verdict,
refers to section 248 of the Criminal Law (Reform and Codification)
Act [Chapter 9:23] as the section which provides for a mental
disorder or defect being a complete defence. It provides as follows;
“(2)
If a judge or magistrate presiding over a criminal trial is satisfied
from evidence, including medical evidence given at the trial, that
the accused person did the act constituting the offence charged or
any other offence of which he may be convicted on the charge, but
that when he did the act he was mentally disordered or intellectually
handicapped so as to have a complete defence in terms of section 248
of the Criminal Law Code, the judge or magistrate shall return a
special verdict to the effect that the accused person is not guilty
because of insanity, and may -
(a)
Order the accused person to be returned to prison for transfer to an
institution or special institution for examination as to his mental
state or for treatment; or
(b)
If the judge or magistrate considers that, had the accused person
been convicted of the offence concerned, he would not have been
sentenced to imprisonment without the option of a fine or to a fine
exceeding level three, order -
(i)
The accused person to submit himself for examination, and,
additionally, or alternatively, treatment in any institution or other
place in terms of Part VI; or
(ii)
The accused person's guardian, spouse or close relative to make an
application for the person to be received for examination, and,
additionally, or alternatively, treatment in any institution or place
in terms of Part VII or Part VIII; and may give such orders as may be
appropriate for the accused person's release from custody for the
purpose of such examination or treatment; or
(c)
If the judge or magistrate is satisfied that the accused person is no
longer mentally disordered or intellectually handicapped or is
otherwise fit to be discharged, order his discharge, and, where
appropriate, his release from custody.”…,.
Section
248 of the Criminal Law (Codification and Reform) Act [Chapter
9:23]….,
provides as follows-;
“248
Consent to medical treatment for non-therapeutic purposes
(1)
In this section -
“patient”
means a person to whom medical treatment is given or upon whom a
medical operation is performed;
“qualified
person”, in relation to any medical treatment or operation, means a
person who, by virtue of his or her qualifications or training, is,
in all the circumstances, qualified to give the medical treatment or
perform the medical operation.
(2)
Where a qualified person, with the consent of the patient concerned,
gives any medical treatment to or performs any medical operation upon
a patient -
(a)
Otherwise than to cure or alleviate any disease or disability; or
(b)
In order to sterilise the patient;
such
consent or authority shall be a complete defence to a charge of
murder or assault arising out of that treatment or operation if -
(i)
The consent complies with paragraphs (b),
(c) and (d)
of subsection (1) of section two
hundred and forty-five; and
(ii)
The treatment or operation is carried out competently in accordance
with recognised medical procedures; and
(iii)
In a case where the treatment consists of the administration of any
new, untried or experimental drug, medicine or allied substance, such
treatment is conducted pursuant to and in accordance with the
procedures prescribed for the clinical trial of a medicine under the
Part III of the Medicines and Allied Substances Control Act [Chapter
15:03].”…,.
Section
227 of the Criminal Law (Codification and Reform) Act [Chapter
9:23]…, provides as follows-:
“227
Mental disorder at time of commission of crime
(1)
The fact that a person charged with a crime was suffering from a
mental disorder or defect when the person did or omitted to do
anything which is an essential element of the crime charged shall be
a complete defence to the charge if the mental disorder or defect
made him or her -
(a)
Incapable of appreciating the nature of his or her conduct, or that
his or her conduct was unlawful, or both; or
(b)
Incapable, notwithstanding that he or she appreciated the nature of
his or her conduct, or that his or her conduct was unlawful, or both,
of acting in accordance with such an appreciation.
(2)
For the purposes of subsection (1), the cause and duration of the
mental disorder or defect shall be immaterial.
(3)
Subsection (1) shall not apply to a mental disorder or defect which
is neither permanent nor long-lasting, suffered by a person as a
result of voluntary intoxication as defined in section two
hundred and nineteen.”…,.
Section
248 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
does not provide for a mental disorder or defect being a complete
defence. It provides for consent to medical treatment for
none-therapeutic purposes. It is therefore not the provision intended
by the legislature in section 29(2) of the Mental Health Act [Chapter
15:12]. The legislature clearly intended to refer to a section of the
Criminal Law (Codification and Reform) Act [Chapter 9:23] which
provides for a mental disorder or defect being a complete defence.
There is no doubt in my mind that a wrong section was referred to in
section 29(2) of the
Mental Health Act.
There
is, therefore, an error of reference.
The
intention of the legislature was obviously to refer to the section
which provides that a mental disorder or defect can be a complete
defence. A reading of the of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] reveals that section 227 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23] deals with that
issue….,.
The
issue which remains to be resolved is whether this court can
substitute section 248 of the Criminal Law (Codification and Reform)
Act with section 227 of the Criminal Law (Codification and Reform)
Act in section 29(2) of the Mental Health Act.
Counsels
for the State and the accused submitted, without citing authorities,
that the court can, as the intention of the legislature is clear and
reference to section 248 was an obvious error.
I
agree with them, as, in interpreting a statute, the court must be
guided by the clear intention of the legislature. Case law confirms
that when the words used by the Legislature create an absurdity they
can be modified to bring out the clear intention of the legislature.
In the South African case of Skinner
v Palmer 1919 WLD 39…, WARD J said;
“I
take these two examples as showing that if a proper case arose, the
Court could delete one word and read in another. But, the court will
not reject a word of clear meaning unless it is forced to do so…,.
In Laird v Briggs, an
entirely different word was suggested. It seems to me to be authority
for saying that if I am forced to the conclusion that the word
“fifty-eight” should be read for “fifty-nine” I can so read
it. But I cannot do so merely because I think the draughtsman made a
mistake. I must be forced to the conclusion that the word
“fifty-nine” makes the clause nonsense or that they are opposed
to the clear meaning of the section.”
In
the case of Fernandez v SA Railways
1926 AD 60…, SOLOMON JA said-;
“The
language of this regulation is certainly far from clear. In the case
of Behr v SA Railways and Harbours 1925 AD 483 it was suggested that
the word 'or' is a mistake for 'on'…,. The substitution of
'on' for 'or' would certainly make the regulation
intelligible, which it, certainly, is not as it stands…,. In the
circumstances I think that we should now definitely decide what was
left open in Behr's case, and, in order to make the regulation
intelligible, hold that the word 'or' is a mistake for 'on'
and so give effect to what I am satisfied was the real intention of
the framers of the regulation.”
See
also another South African case of Ex
parte Minister of Justice In re R
v Jacobson & Levy 1931 AD 466.
The
Zimbabwean High Court dealt with the court's power to modify the
language of a statute in the case of S
v Karani 1997 (2) ZLR 114 (HC)…, where GILLESPIE J said-;
“As
was said by SCHREINER JA in Durban
City Council v Gray 1951 (3) SA 568 (A) at 580B:
'[It]
is within the powers of a court to modify the language of a statutory
provision where this is necessary to give effect to what was clearly
the legislature's intention.'
Such
power is undisputed where slavish literalism 'leads to an absurdity
so glaring that it could never have been contemplated by the
legislature, or if it leads to a result contrary to the intention of
Parliament, as shown by the context or by such other circumstances as
the court is justified to take into account.'
(Per
de VILLIERS AJ in Venter v R
1907 TS 910 at 915).
If
the court were not able to supply the relevant correction of sections
54(4) and 55(5) then there would be no penalty enacted for the
offences of contravening sections 54(2) and 55(2) of the Act. The
punishments, considered in meticulous detail, and set out in sections
54(4) and 55(5) would be completely otiose since they would refer
only to a non-existent offence. Such an absurdity cannot be permitted
to stand in the light of the obvious intention. The reference in each
subsection to 'an offence in terms of subsection (1)' must be
read as 'an offence in terms of subsection (2).'”
See
also the case of Bennett NO v Master
of the High Court 1986 (1) ZLR 127…, where SMITH J said-;
“According
to the golden rule of interpretation of statutes, if there is nothing
to modify, alter or qualify the language which the statute contains,
it must be construed in the ordinary and natural meaning of the words
and sentences. It is a corollary to the general rule of literal
construction that nothing is to be added to or taken from a statute
unless there are adequate grounds to justify the inference that the
Legislature intended something which it omitted to express.”
I
am satisfied that the Legislature, in this case, said what it did not
intend to say. The rest of its words, in section 29(2) of the Mental
Health Act, clearly points to its having intended to refer to section
227 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
(the Code). Its reference to section 248 of the Code is therefore a
mistake which this court must correct to give effect to the clear
intention of the Legislature.
The
Supreme Court has confirmed the courts' power to modify the
language of a statue. In the case of S
v Aitken 1992 (2) ZLR 84 (SC)…, GUBBAY CJ said-;
“Even
if I am wrong in ascribing the meaning I do to the term
"interlocutory", I am nonetheless convinced that the
Legislature could not possibly have intended what that word
signifies. On that ground alone this court would be justified in
modifying the meaning. For to stand aside where the object and
intention of the enactment are clear would be to allow it, contrary
to good sense, to be reduced to a nullity by the draftsman's
unskilfulness or ignorance of the law. In this connection, I can do
no better than to echo, with approval, the observations by DENNING LJ
(as he then was) in Seaford Court
Estates Ltd v Asher [1949] 2 All ER 155 (CA) at 164
E-H:
'Whenever
a statute comes up for consideration it must be remembered that it is
not within human powers to foresee the manifold sets of facts which
may arise, and, even if it were, it is not possible to provide for
them in terms free from all ambiguity. The English language is not an
instrument of mathematical precision. Our literature would be much
the poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticised. A judge, believing
himself to be fettered by the supposed rule that he must look to the
language and nothing else, laments that the draftsmen, have not
provided for this or that, or have been guilty of some or other
ambiguity. It would certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and perfect clarity.
In the absence of it, when a defect appears a judge cannot simply
fold his hands and blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament, and he must
do this not only from the language of the statute, but also from a
consideration of the social conditions which gave rise to it and of
the mischief which it was passed to remedy, and then he must
supplement the written word so as to give 'force and life' to the
intention of the legislature.'
To
much the same effect are the remarks of WESSELS ACJ in Ex
parte Minister of Justice: In re Jacobson & Levy
1931 AD 466 at 476 in fine-477.”
I
am therefore satisfied that the State and defence counsel correctly
submitted that this court must, in this case, substitute the words
“section 248” in section 29(2) of the Mental Health Act with the
words “section 227”, as that was the clear intention of the
legislature. The reference to section 248 is clearly an error which
this court must correct to give effect to the intention of the
legislature.
