Case   CCT125/22
[2023] ZACC 15

Hearing Date: 20 November 2022

Judgement Date: 09 June 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 9 June 2023, the Constitutional Court handed down judgment in an application for confirmation, an application for leave to appeal and a conditional application for leave to appeal against a judgment and order of the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court declared sections 33 and 34 of the Mental Health Care Act 17 of 2002 (MHCA) unconstitutional to the extent that no provision is made for an automatic and independent review prior to or immediately following the initial admission of a person involuntarily detained under the MHCA. The High Court found that sections 33 and 34 of the MHCA unjustifiably infringe an involuntary inpatient mental health care user’s constitutional rights to dignity, freedom and security of person and access to courts. Chapter IV was declared unconstitutional to the extent that it fails to provide Mental Health Care Review Boards (Review Boards) with an adequate level of independence.

There was no specific factual basis that gave rise to the application before the High Court. The applicant, Makana People’s Centre (Makana), a non-profit civil rights organisation with an objective of uplifting the lives of previously disadvantaged persons through, amongst others, public interest litigation, approached the High Court based on its concern for the state of mental health care services in South Africa, which it described as generally of poor quality and below acceptable humanitarian standards. It specifically referred to reports regarding the Life Esidimeni tragedy arising from the Gauteng Mental Health Marathon Project.

The High Court reaffirmed the principle that the deprivation of liberty through arrest and detention is prima facie unlawful. Although the arrest and detention of a person often serves a noble intention, the High Court held that a person who has been involuntarily deprived of their liberty must nevertheless be brought before an independent arbiter – prior to or immediately following the detention – so that the arbiter can sanction the detention. In amplification of this view, the High Court referred to a number of decisions of this Court, including C v Department of Health and Social Development, Gauteng 2012 (2) 9 SA 208 (CC) and AmaBhungane Centre for Investigate Journalism NPA v Minister of Justice and Correctional Services; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC 2021 (3) SA 246 (CC).

With regard to Makana’s challenge to the independence of the Review Boards, the High Court relied on this Court’s decision in Glenister v President of the Republic of South Africa 2009 (1) SA 287 (CC). In that matter, various provisions of the National Prosecuting Authority Amendment Act 56 of 2008 and the South African Police Service Amendment Act 57 of 2008, which created the Directorate of Priority Crime Investigation (DPCI), were found to be unconstitutional to the extent that they failed to secure an adequate degree of independence for the DPCI.

In this Court, Makana sought confirmation of the High Court’s judgment and order. Makana further requested that the declaration of invalidity be extended to Chapter IV of the MHCA in its entirety. It repeated the submissions made in the High Court that the statutory scheme for the initial involuntary admission and detention of mental health care users (users) under sections 33 and 34 of the MHCA unjustifiably infringe their rights to dignity, freedom and security of the person and access to courts. Makana specifically took issue with the following mechanisms under the MHCA. First, that an application for the involuntary admission of a person is made to the head of a health care establishment (who the MHCA does not require to be a qualified medical practitioner), rather than to a judicial officer. Second, that the MHCA defines mental health care practitioners too widely by including persons without any medical or psychiatric knowledge or expertise. For example, it takes issue with social workers falling within the ambit of the statutorily defined meaning of “mental health care practitioner”. Finally, the time lapses from the initial involuntary admission of a person to the consideration of the admission by the Review Board, and ultimately to the consideration by a court, are prolonged and unwarranted.

Makana contended that sections 33 and 34 of MHCA infringe section 12 of the constitution. Makana argued that there was no substantive justification provided as to why it is acceptable that the impugned scheme does not require urgent determination of the appropriateness of continued involuntary admission prior to or immediately after the user’s involuntary admission. Specifically, Makana contended that the state has not provided any evidence to justify the prolonged periods for the involuntary admission of users without promptly being subject to automatic review by an independent body. Makana argued, further, that the interposition of an impartial arbiter – that is independent of the Executive and Legislature – is required between a user and the state. Insofar as the MHCA requires judicial intervention potentially more than a month after a user has been involuntarily detained, Makana submits that this contravenes sections 12(1) and 34 of the Constitution by permitting detention without a trial.

Makana further argued that the MHCA falls short of ensuring the structural (particularly financial) and operational independence of the Review Boards. In its view, it is inappropriate for the provinces’ Members of the Executive Councils for Health (MECs) to determine the remuneration of members of the Review Boards in the absence of set criteria or guidelines. As the Review Board oversees the provincial executive’s discharge of its duties under the MHCA, so the argument continued, this potentially renders members of the Review Board beholden to the MECs.

On costs, Makana contended that the High Court was correct to hold the national Minister of Health and the MEC for Health in the Western Cape jointly and severally liable. Although the MEC for Health for the Western Cape did not formally oppose its application in the High Court, Makana submits that she nevertheless opposed the application in substance by the contents of her explanatory affidavit provided in that Court.

The first to ninth respondents, which include the Minister of Health and MECs for Health for the other eight provinces, opposed the application for confirmation and sought leave to appeal the High Court’s judgment and order. The first to ninth respondents argued that the MHCA adequately protects the rights of users by, amongst others, promoting greater access to mental health services, ensuring that rights of users are protected through procedures and structures acting as checks and balances, and providing important mechanisms which ensure adequate and appropriate care and treatment. The first to ninth respondents submitted that sections 32, 33 and 34 in particular provide for the necessary safeguards against abuse.

With regard to Makana’s call for the MHCA to provide some form of judicial oversight at the initial admission of an involuntary user, the first to ninth respondents contended that this may infringe a person’s right to life and access to health care services because, pending the envisaged review by a court, the user would be deprived of diagnostic and treatment procedures, thus possibly endangering their lives. It was argued further that it is impractical and unnecessary for the MHCA to provide an automatic independent review prior to or immediately following the initial involuntary admission of a user. Chapter IV, which deals with the establishment of Review Boards, so the argument continued, provides the necessary safeguards to ensure their independence through its structure and composition.

The tenth respondent, the MEC for Health for the Western Cape, noted her intention to abide the decision of this Court in the confirmation proceedings. However, should this Court confirm the orders of invalidity, the tenth respondent noted a conditional application for leave to appeal against two aspects of the High Court’s order on the merits: first, the High Court’s refusal to suspend the declarations of invalidity for 24 months in order to afford Parliament time to correct the defect, despite Makana requesting this remedy; and second, the High Court’s refusal to limit the retrospective effect of the declarations of invalidity. The tenth respondent also appealed against the High Court order that she was jointly and severally liable to pay Makana’s costs, together with the first respondent. In sum, the tenth respondent requested that its appeal be upheld and, if this Court confirms the declarations of invalidity, it must: (a) make the declarations prospective in effect only; (b) grant Makana’s request to suspend the declarations of invalidity for the period sought; (c) vary the High Court’s order by removing reference to the tenth respondent in the costs order; (d) refuse Makana’s requests for costs against the tenth respondent for participating in the confirmation proceedings; and (e) rectify the effect of this Court’s dictum in Minister of Justice and Constitutional Development and Others v Prince 2018 (6) SA 393 (CC).

In a unanimous judgment, penned by Rogers J, this Court identified eight pertinent issues that this matter raises. However, it observed that only two of the issues identified are dispositive of the matter and other issues would fall away should these two issues be resolved against Makana. These two issues were: (a) whether sections 33-4 of the MHCA limit the rights of involuntary users guaranteed in sections 10, 12(1) and 34 of the Bill of Rights; and (b) whether Chapter IV of the MHC Act failed to provide adequate independence for the Review Boards.

This Court observed that the answer to the two issues depend, first, on the meaning of the process envisaged in terms of sections 33 and 34 of the MHCA. In terms of the MHCA, this Court explained that an application for the involuntary treatment of adults must ordinarily be made by a user’s spouse, next of kin, partner, associate, parent or guardian. Whoever makes the application must have seen the user within the last seven days. Second, the head must, on receipt of the application, cause the user to be examined by two mental health care practitioners. At least one of them must be “qualified to conduct physical examinations”. Third, the head must then decide whether to grant or refuse the application. The head can only approve the application if the reports of two practitioners concur that conditions for involuntary treatment exist.

Fourth, upon admission, the head must ensure that the user is given appropriate treatment. Further, the head must also request a medical practitioner and another MHC practitioner to assess the user’s physical and mental health status for a period of 72 hours. These two practitioners must also consider whether involuntary treatment should be continued and whether treatment should be provided on an outpatient or inpatient basis. Within 24 hours after the expiry of the 72-hour assessment, the head must make the assessment findings available to the applicant.

Fifth, based on the 72-hour assessment, the head can reach one of three decisions, namely that the user’s mental health status (a) does not warrant involuntary treatment, in which case the user must be discharged immediately, unless the user consents to treatment; (b) warrants further involuntary treatment on an outpatient basis, in which case the head must discharge the user on prescribed conditions; or (c) warrants further involuntary treatment on an inpatient basis. Sixth, in an event that the head concludes that further involuntary inpatient treatment is warranted, the head must, within seven days after expiry of the 72-hour assessment, submit a written request to the Review Board to approve this treatment.

Seventh, upon receipt of the documents the Review Board must, within 30 days, consider the request and make its decision. If the Review Board decides to grant the head’s request, it must, within the same 30-day period, send the documents it received from the head and its decision to the Registrar of the High Court. If the Review Board sends the papers to the High Court, the latter must consider the papers; may obtain information from any relevant person; and must then order either that the user be further hospitalised (and, if necessary, that the user’s financial affairs be managed and administered according to Chapter VIII) or immediately discharged.

Eight, in an event that the user is further hospitalised, the head must cause the user’s mental health status to be reviewed after six months and thereafter every 12 months. The head must submit a summary report of each review to the Review Board, which must within 30 days consider the report; if necessary, obtain information from any relevant person; and notify its decision to the head.

In its interpretative analysis, this Court considered various international law instruments including Universal Declaration of Human Rights, the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights, the UN Mental Health Principles of 1991, the Convention on the Rights of Persons with Disabilities, the UN’s Committee on the Rights of Persons with Disabilities Guidance on the latter Convention, and the African Disability Rights Protocol. These instruments communicate the need for protection of rights of mental health care users. The Court observed that the MHCA drew inspiration from some of these international instruments.

In determining whether sections 33 and 34 of the MHCA violate section 12(1)(a) of the Constitution, this Court noted that involuntary inpatient treatment is a deprivation of freedom for purposes of section 12(1)(a). The user is not free to leave the health establishment. However, the fact that it is a deprivation of freedom is not the end of the matter. The Court explained that the right conferred by section 12(1)(a) has a substantive and a procedural component. Substantively, the right not to be deprived of freedom “arbitrarily or without just cause” means that there must be an acceptable reason for the deprivation. Procedurally, there is an implicit right not to be deprived of freedom except by a fair process. Because these substantive and procedural components are part of the definition of the right, a litigant who challenges legislation on the basis that it limits the right must show that the statute permits a deprivation of freedom without acceptable reason or without a fair process. The substantive components, which are envisaged under section 32 of the Act, were not challenged by the applicant. The applicant hinged their attack on the procedural component of the right.

This Court embarked on a comparative analysis and concluded that the submissions made by the applicant on the procedural aspects of the Act should fail. The Court highlighted that the nature of the fair process required in each case will depend on a variety of factors, including the ground upon which the deprivation of freedom is based, whether it is penal or coercive and the place of detention.

This Court observed that the procedures under MHCA provides more protection for health care users in comparison to other countries. First, the Court noted that the Act allows a range of persons to apply to the Review Board as opposed to the limited and narrow “nearest relative” requirement of the English legislation. Second, those persons have an unfettered right to apply to the Review Board during the first 30 days following involuntary admission. Third, even if a family member or associate does not bring an application to the Review Board, involuntary inpatient treatment cannot be extended after the 72-hour assessment except on the authority of the Review Board, though of course the user will be involuntarily detained until the Review Board decides the case. Therefore, there is an automatic review process which occurs not later than 30 days from the completion of the 72-hour review. Fourth, within another 30 days there is an automatic review by a Judge. Fifth, the Act does not take away ordinary judicial remedies that are available for the user or their relatives.

In addition, this Court held that there are striking differences between involuntary inpatient admission and penal or coercive detention. First, the grounds for deprivation do not lie in past events but in the user’s current mental health status. Second, the user’s mental health status is typically not static; it may get better or worse depending on the nature and course of the mental illness and the treatment provided. Third, determining a user’s mental health status is a matter for expert assessment. It is not something a judicial officer can reliably do without extensive expert assistance. Fourth, the detention takes place at a health establishment, not a prison. Finally, the object of the process is not detention as such but treatment; the deprivation of liberty is a necessary precondition for providing the treatment.

Thus, the Court concluded that the differentiating features illustrate that the most effective procedural safeguards against unjustified involuntary inpatient treatment are those aimed at ensuring that the user’s evolving condition is assessed over an appropriate period of time by multiple experts and responsible officials in proximity to the user. The more people involved in the assessment, the less the risk of a mistaken assessment. Proximity and expertise improve reliability. Thus, this Court decided that the Act contains effective procedural safeguards, and they are in line with section 12(1)(a) of the constitution.

Moreover, the Court held that despite the minimal level of judicial interference in practice, judicial involvement serves important purposes. First, the fact that a Judge will eventually see the papers plays a part in ensuring that the persons involved at the earlier stages do their jobs properly. Second, the Judge provides a safety net for those rare cases where, despite the earlier safeguards, involuntary treatment turns out not to have been justified.

This Court was not convinced by the contention that there is a need for judicial oversight at the initial stage of admission. At the early stage, information would be incomplete and thus inadequate to enable the Judge to make an informed decision. Since many involuntary users are discharged or reclassified within the first couple of weeks of admission, there seems little justification for early judicial involvement and little reason to believe that it would have any material effect on the number of involuntary admissions. This Court concluded that the question is not whether an upfront judicial oversight is feasible but whether the procedure in the Act meets the test of a fair process. Accordingly, this Court held that sections 33 and 34 of the Act did not encroach on the procedural component of section 12(1)(a) of the Constitution.

In relation to Review Boards, the Court held that the Act envisages Review Boards as being independent. This flows from their function of assessing whether decisions made by persons engaged at health establishments are justified. The MEC appoints members of the Board. The Court held that the fact that appointments are made by the MEC does not mean Review Boards lose independence. This Court rejected the submission by the applicant that appointments affect the independence of Review Boards.

The supposed lack of independence is a matter of form rather than substance. This Court held that the MEC is not a functionary within the provincial health department. In particular, the MEC is not a manager of the health care practitioners and heads involved in the involuntary treatment regime, nor is the MEC a manager of any members of the Review Board who may be full-time employees of the health department. Moreover, the Review Board does not have any oversight over the MEC’s actions. It also does not have general oversight of health establishments. It has oversight functions in relation to those individual cases which the Act requires to be referred to it. In relation to each such case, the Review Board is concerned with the decisions made by particular individuals at health establishments, not MEC’s actions. Those individuals have no say in the appointment, terms of office, remuneration or removal of Review Board members.

Accordingly, the Court held that it cannot be concluded that the MEC’s power to appoint and dismiss Review Board members and to determine their terms of office and remuneration could have any influence on how Review Board members do their jobs. This said, the MEC’s powers in these respects are not conferred in arbitrary terms. Therefore, this Court concluded that sections 33 and 34, and relatedly Chapter IV, do not limit section 12(1) of the Constitution.

Accordingly, this Court made an order, first holding that declarations of constitutional invalidity by the High Court are not confirmed. Second, the costs orders made by the High Court are set aside and replaced with an order that the parties are to bear their own costs. Consequently, as aresult of the orders in 1 and 2, the respondents’ applications for leave to appeal fall away. Finally, the court ordered that parties bear their own costs in this Court.


The Full judgment  here