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1. WORKING TITLE Historical developments of the trial of mentally ill accused in the South African criminal justice system. 2. RESEARCH INTRODUCTION This research product intends to provide an in-depth explanation on the historical developments of the trial of mentally ill accused persons in the South African criminal justice system. Mental illness is displayed in behaviour that deviates from a person’s normal conduct.1 It is a disorder of the mind which is judged by professional experts to interfere greatly with a person’s ability to deal with daily life. It can disrupt a person’s ability to relate to others. It also disrupts their mood, feelings and way of thinking. South Africa has a Roman-Dutch common law which was influenced by English and other law, as well as an uncodified criminal law that relies on general principles of liability. The courts progressively started to rely on English law in cases of mental incapacity and the rules set out in the English M’Naghten case were adopted.2 M’Naghten Rules can be described as including: the rebuttable presumption that a person is sane and responsible for their criminal conduct; that in order to establish the defence of insanity, it must be proven that a person suffers from a defect of reason that rendered them incapable of knowing the nature and quality of their act or knowing that the act was wrong; and making provisions for persons suffering from partial delusions. The rules were developed from an essential right and wrong test by adding a further test that entailed proving that the criminal conduct was committed even though the perpetrator realized the quality and nature of the act and its wrongfulness. Different valid criticism was levelled against the rules and they were ultimately rejected and developed through the years into current South African criminal law.3 1 Swanepoel M “Legal Aspects with regard to mentally ill offenders in South Africa” 2018 PELJ Vol.18 No.1 2 Snyman CR Criminal Law 6th ed. (2014) LexisNexis (page 164). Since 1977 the defence of insanity in South Africa has been governed by statute and in terms of section 77 of the Criminal Procedure Act, an accused who suffers from mental illness or defect may as a result not be fit to stand trial. An enquiry into the capacity of the accused to understand the nature of the trial process is seen as a preliminary issue that has to be finalised before the issue of criminal responsibility for the conduct is examined.4 Here, the court relies on medical evidence and must be satisfied that there is a reasonable suspicion that the accused lacks the capacity to appreciate the nature of the trial proceedings or to conduct a proper defence.5 If the defence of insanity is raised, the test to determine the accused's criminal responsibility must be applied. This test is set out in section 78(1) of the Criminal Procedure Act which reads as follows: A person who commits an act which constitutes an offence and who at the time of such commission suffers from a mental illness or mental defect which makes him incapable –