S v Boois (CC 17/2024) [2025] NAHCMD 184 (22 April 2025)

Case Title:

The State

and

Vapeni Lucia Boois Accused

Case No:

CC 17/2024

Division of Court:

High Court, Main Division

Heard on:

31 March 2025

Coram: Christiaan J

Delivered on:

22 April 2025

Neutral citation: S v Boois (CC 17-2024) [2025] NAHCMD 184 (22 April 2025)

ORDER:

1. In terms of s 78 (7) of the Criminal Procedure Act 51 of 1977 as amended, the court finds that the accused at the time of the commission of the act in question, was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused.

2. The accused is capable of understanding the proceedings and is fit to stand trial.

REASONS FOR ORDER:

CHRISTIAAN J:

Introduction

[1] This matter concerns an inquiry into the mental condition of the accused, specifically her triability in terms of s 77 and her criminal responsibility in terms of s 78 of the Criminal Procedure Act 51 of 1977, as amended (the CPA). The accused stands charged with serious offences, including murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003, and defeating or obstructing the course of justice or attempting to do so.

[2] Pursuant to concerns raised regarding the accused’s mental state, the court directed that she be referred for psychiatric observation in accordance with the provisions of s 79 of the CPA. A report was duly compiled by a psychiatrist appointed for that purpose and submitted for the court’s consideration.

[3] The present judgment is thus confined to the determination of whether the accused is mentally fit to stand trial, namely, whether she possesses the capacity to understand the proceedings so as to make a proper defence and whether, at the time of the commission of the alleged offences, she was criminally accountable, that is, capable of appreciating the wrongfulness of her conduct and acting in accordance with such appreciation.

[4] Ms Verhoef appeared for the state. The accused appears unrepresented. Notwithstanding that, her right to legal representation was duly explained to her, and that a legal practitioner appeared as amicus curiae, she has elected not to make use of legal representation.

[5] At the commencement of the proceedings, this court was furnished with a report compiled in terms of s 79(1) of the CPA, by Dr H M Ndjaba, a psychiatrist in the employ of the Ministry of Health and Social Services and stationed at Windhoek Central State Hospital.

[6] According to the psychiatric report submitted in terms of s 77 of the CPA, the accused was diagnosed with borderline personality disorder, comorbid with Borderline Personality Disorder (BPD). Notwithstanding this diagnosis, the accused was found to be fit to stand trial, possessing the capacity to understand the proceedings and to properly instruct counsel in her defence. Furthermore, in terms of s 78 of the CPA, it was reported that, at the time of the commission of the offence, the accused was suffering from depressive symptoms and exhibited traits of a borderline personality however, she was capable of appreciating the wrongfulness of her conduct and of acting in accordance with such appreciation, albeit with diminished responsibility. In accordance with s 79 of the CPA, the accused was deemed both triable and criminally accountable.

[7] The accused disputes the findings contained in the psychiatric report, asserting that she was not suffering from any mental condition at the time of the commission of the offence and that she is fit to stand trial. In light of the dispute, the court issued a subpoena for Dr Ndjaba to appear and elucidate the contents of the report. This was done to afford both the accused and the state an opportunity to cross-examine the psychiatrist, given that the enquiry conducted in terms of s 79 of the CPA pertained to the accused's mental condition. The court deemed it necessary in order to properly consider the medical evidence in conjunction with all other relevant factors in determining the accused’s fitness to stand trial.

[8] In S v Shivute¹ the criminal responsibility of the accused was in issue and O’Linn J (as he then was) at p 660 on the question of criminal responsibility stated that the law presumes that an accused is of sound mental health and is criminally responsible. Furthermore, when the issue is whether the accused was not criminally responsible because of a mental illness or defect, the onus of proof rests on the accused and such onus must be discharged by proof on a balance of probabilities. In order to assess whether the accused has discharged the onus resting upon her, the court will now proceed to consider the evidence presented by the psychiatrist, Dr Ndjaba.

[9] Dr Ndjaba, the psychiatrist who compiled the report and testified before this court, is a qualified medical practitioner holding a degree in medicine (MB), obtained from the Hubert Kairuki Memorial University in Dar Es Salaam, Tanzania. She further holds a Master of Medicine in Psychiatry (MMED), conferred by the University of the Nairobi, Kenya. Dr Ndjaba is registered with the Health Professions Council of Namibia and is currently employed by the Ministry of Health and Social Services. She is stationed at the Windhoek Central State Hospital, where she is responsible for conducting psychiatric evaluations, including those mandated in terms of the CPA, for patients referred by the courts. Her experience includes several years of clinical practice in the field of forensic psychiatry.

[10] She testified that she personally conducted the psychiatric evaluation of the accused pursuant to a referral for mental observation made by the Magistrate’s Court of Keetmanshoop. The assessment was carried out during the months of March and April 2024, during which the accused was admitted under her supervision. Dr Ndjaba further testified that on 11 April 2024, the accused was presented before a multidisciplinary panel. This panel conducted a comprehensive assessment which included a psychiatric interview by a psychiatrist, psychological evaluation by a clinical psychologist, assessment by an occupational therapist and a medical social worker, as well as ongoing daily observations and reporting by psychiatric nursing staff.

[11] The findings on the mental state examination is that the accused was diagnosed with a borderline personality disorder comorbid with persistent depressive disorder. When asked during cross examination by Ms Verhoef to explain the diagnosis, Dr Ndjaba explained that a BPD is a mental health condition where a person often has intense emotions, unstable relationships, and a poor or shifting sense of self. They might struggle with fears of abandonment, act impulsively, or have sudden mood changes. She further explained that Persistent Depressive Disorder is a long-term form of depression. It means a person feels sad or down most of the time. The symptoms are usually not as severe as major depression, but they last much longer. When someone has both conditions at the same time, it means they experience the emotional ups and downs and relationship struggles of BPD, along with a constant low mood or sadness from persistent depression. This combination can make life feel especially difficult and overwhelming for the person.

[12] With regard to the accused’s triability and criminal accountability, Dr Ndjaba testified that the constituted multidisciplinary panel unanimously concluded that the accused is both triable and accountable, notwithstanding the presence of diminished responsibility. She elaborated that the accused was found to be mentally fit to stand trial, possessing the capacity to comprehend the nature and purpose of the proceedings and to make a proper defence. Furthermore, in respect of her mental state at the time of the alleged offence, Dr Ndjaba testified that the accused was capable of appreciating the wrongfulness of her conduct and the consequences thereof. However, her responsibility was regarded as diminished, owing to her mental condition at the time, specifically, that she was suffering from a depressive disorder in conjunction with a borderline personality disorder.

[13] During cross-examination, the accused firmly denied that her actions were influenced by what she referred to as being 'mentally disturbed', and further asserted that she was not under the influence of any intoxicating substances at the time of the commission of the alleged offence. She stated, 'I do not have a disorder; I am simply traumatised by my past and circumstances.' The accused admitted that, at the material time, she had resolved to end both her own life and that of her infant son as a means of escaping what she described as the suffering of this world. She further conceded to having dug a grave and interred the deceased child’s body, explaining that she did so to prevent decomposition and because she was unable to carry the body with her. Dr Ndjaba maintained that the accused suffered from a mental condition named a depressive disorder in conjunction with a borderline personality disorder.

[14] The accused further challenged the accuracy and quality of the psychiatric report, contending that the grammar employed therein was substandard and that Dr Ndjaba had omitted certain material information which she had conveyed during the course of the assessment, particularly in relation to the circumstances surrounding the commission of the alleged offence. She also pointed out an error in the report wherein the mother of the deceased’s father was incorrectly referred to as her mother-in-law, asserting that she was not married to the father of the deceased, but had instead conceived the child as a result of rape. In response, Dr Ndjaba acknowledged the concerns raised regarding the language used in the report and apologised for any inaccuracies. She further conceded that, while the information may indeed have been conveyed to her, it was not possible to include every detail in the report, and she expressed regret for having referred to the grandmother of the deceased as the accused’s mother-in-law.

[15] The accused elected not to testify in her defence, nor did she call any witnesses, including a medical practitioner or psychiatrist, to challenge or rebut the findings made by Dr Ndjaba. Despite being afforded the opportunity to do so, she remained adamant in her assertion that she suffers from a mental condition. The state likewise did not lead any further evidence or call additional witnesses.

[16] The court requested Dr Ndjaba to explain how the accused’s mental condition could have affected her ability to control her actions while still allowing her to recognise the wrongfulness of those actions. In response, Dr Ndjaba stated that this phenomenon aligns with the concept of diminished responsibility. She explained that, although the accused was diagnosed with borderline personality disorder comorbid with persistent depressive disorder, she retained the cognitive ability to appreciate the wrongfulness of her conduct and to understand the consequences of her actions. However, due to the emotional instability, impulsivity, and impaired coping mechanisms associated with her condition, her capacity to act in accordance with that appreciation was compromised. Dr Ndjaba concluded that the accused’s volitional control was diminished, though not entirely absent, meaning she acted with reduced criminal capacity rather than a complete lack thereof.

[17] The court further inquired whether, given that the psychiatric report was compiled approximately a year prior, Dr Ndjaba had considered the possibility of any changes in the accused’s mental condition since the time of the initial assessment. Specifically, the court asked whether the accused’s mental state may have improved, deteriorated, or otherwise altered over time, and whether any follow-up assessments had been conducted in the intervening period. In response, Dr Ndjaba confirmed that no subsequent evaluations had been carried out following the initial assessment, and that she had not clinically engaged with the accused since the completion of the report. She acknowledged that mental health conditions, particularly mood and personality disorders, can fluctuate over time depending on various factors, including access to treatment, environmental stressors, and personal coping mechanisms. However, she maintained that, absent any updated clinical information or further assessment, her findings as reflected in the report remained the same.

[18] S 78(7) of Act 51 of 1977 reads as follows:

‘If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused.’ (Emphasis provided).

[19] Burchell and Hunt in South African Criminal Law and Procedure² states that:

‘Diminished responsibility is usually the finding in cases of mental deficiency which do not amount to legal insanity. In deciding whether a finding of diminished responsibility is justified the court will be guided by the specialist medical evidence, but will also take all the other evidence into account.’

[20] In the present matter, the court is satisfied, based on the evidence of Dr Ndjaba and the absence of any rebuttal by the accused, that although the accused was suffering from a mental disorder at the time of the commission of the offence, namely borderline personality disorder comorbid with persistent depressive disorder, such condition did not render her incapable of appreciating the wrongfulness of her conduct or of acting in accordance with that appreciation.

[21] In line with the author’s observation at page 175, where the accused's mental condition, though abnormal, does not reach the threshold of legal incapacity, criminal responsibility remains intact. However, the presence of a diminished level of control due to her mental state may be considered as a mitigating factor during sentencing. Accordingly, the court finds that the accused is both triable and criminally accountable, albeit her mental condition may bear relevance in the determination of an appropriate sentence, should she be convicted.

[22] In the result the court makes the following findings:

1. In terms of s 78 (7) of the Criminal Procedure Act 51 of 1977 as amended, the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused.

2. The accused is capable of understanding the proceedings and is fit to stand trial.

Judge’s signature:

P CHRISTIAAN

JUDGE