Navigating the complexities of the mentally ill and mentally incapacitated in the criminal justice system in South Africa

Those with mental illness, learning disabilities, and speech and language difficulties continue to be over represented in the global criminal justice system, create immense difficulties for these individuals in navigating the system itself, and the prison environment, and contribute to the revolving door of incarceration. Very little is known with regard to the situation of the mentally ill and mentally incapacitated in African criminal justice systems. In this Commentary we discuss how the Criminal Procedure Act in South Africa still does not fully comply with the or the Protocol to the African Charter on the Rights of Person with Disabilities in criminal proceedings. An urgent review of due process is warranted where the existence of capacity based defense needs are to be considered. It is vital to distinguish between intellectual and psycho-social disability, regarding assessment and issuance of appropriate court orders to the specific needs of the person, the identified disability and the interest of justice. Consistency in mental capacity or illness assessment using validated screening tools and specialist expert reports provided to the court should comply with the general requirements of expert evidence.