Excerpt: A person brutally murders his entire family. Psychiatrists evaluate him. The court finds that he understood exactly what he was doing — and sends him to prison rather than a psychiatric institution. But if deliberately committing an unimaginable atrocity does not necessarily make someone legally insane, what exactly does it mean to be “sane”? LFN explores the fascinating divide between legal sanity, mental illness, criminal responsibility and what ordinary people regard as “normal” — and asks whether our criminal justice system needs another way of dealing with the most dangerous offenders.
What is your opinion? [Comments Invited]
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There is something about criminal law that has bothered me for years.
Perhaps it has bothered you too.
You switch on the news and hear about a crime so horrific that your first reaction is:
“This person must be mad.”
Someone murders his parents.
Someone kills an entire family.
Someone kidnaps, tortures or rapes another human being. A farm murder!
Sometimes the brutality is so difficult for an ordinary person to comprehend that we instinctively search for an explanation.
“Surely a normal person cannot do that?”
Then the accused eventually appears before a court. Questions arise about his mental condition. Psychiatrists and other experts may become involved.
And eventually we discover that, legally speaking, the accused is capable of standing trial and was criminally responsible for what he did.
In everyday language, many people translate that into something much simpler:
“So, he’s sane.”
And that is where things become very interesting.
IF HE IS SANE, WHAT DOES THAT SAY ABOUT THE REST OF US?
Imagine the following hypothetical situation.
A man wakes up one evening, picks up an axe, walks into his parents’ bedroom and deliberately murders them.
He then walks down the passage and murders his siblings.
He understands what he is doing. He knows who his victims are. He knows killing them is wrong. He nevertheless continues.
Afterwards, perhaps he hides the axe, washes the blood from his clothing and tries to conceal what happened.
He is arrested.
Psychiatric enquiries follow.
Eventually, he stands trial and is convicted.
The court sentences him to life imprisonment without possibility of parole.
Most ordinary people hearing this story would probably say:
“How can someone who does THAT possibly be normal?”
And therein lies the problem.
The law is not actually asking whether this man’s behaviour was normal.
It is asking something substantially different.
“SANE” IS NOT REALLY THE QUESTION
South African criminal law draws an important distinction which is easily lost in ordinary conversation.
Section 77 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) deals principally with whether an accused, by reason of mental illness or intellectual disability, is capable of understanding the proceedings sufficiently to make a proper defence.
In simple language:
Can this person meaningfully stand trial?
That concerns his condition in relation to the proceedings.
Section 78 asks another question.
It concerns the accused’s criminal responsibility at the time the offence was committed.
A person suffering from mental illness or intellectual disability is not criminally responsible under section 78(1) where that condition made the person incapable of appreciating the wrongfulness of the act, or incapable of acting in accordance with such an appreciation.
Put that into ordinary language:
Did he understand that what he was doing was wrong, and was he capable of acting accordingly?
Suddenly our axe murderer becomes legally easier to understand.
He may have done something utterly horrifying.
He may be dangerous.
He may display profoundly disturbed characteristics.
But if he understood:
“These are my parents.”
“I am killing them.”
“Killing them is wrong.”
“I can choose not to do this.”
…and nevertheless deliberately chose to continue, the sheer horror of his conduct does not automatically establish legal insanity.
And that produces an uncomfortable conclusion:
A person apparently does not have to be legally “mad” to do something monstrous.
THAT MAY ACTUALLY BE MORE FRIGHTENING
Think about that for a moment.
There is almost something psychologically comforting about explaining extreme evil as madness.
If every person who commits an extraordinarily brutal crime is mentally incapable of understanding or controlling his conduct, society can distance itself from him:
“He is nothing like us. He is insane.”
But criminal law confronts us with a much more disturbing possibility.
A human being may understand reality.
He may know right from wrong.
He may understand the consequences.
He may plan what he intends doing.
He may take steps afterwards to avoid detection.
And he may nevertheless choose to commit an atrocious crime.
The Supreme Court of Appeal in Ntshongwana v S (1304/2021) [2023] ZASCA 156; [2024] 1 All SA 345 (SCA); 2024 (2) SACR 443 (SCA) has dealt directly with the criminal-capacity enquiry under section 78. The statutory question concerns whether mental illness or intellectual disability deprived the accused of the relevant capacity to appreciate wrongfulness or act in accordance with that appreciation.
That is worlds apart from asking:
“Would an ordinary person regard what he did as normal?”
Obviously not.
Murder is not made “normal” merely because its perpetrator possessed criminal capacity.
THERE IS ALSO A GREY AREA
Things become even more fascinating because South African law recognises that human mental capacity is not necessarily an on/off switch.
Section 78(7) provides for circumstances where a person remained criminally responsible but his capacity to appreciate the wrongfulness of his conduct, or to act in accordance with that appreciation, was diminished by mental illness or intellectual disability.
That diminished responsibility may be considered when sentence is imposed.
So we potentially have something resembling a spectrum:
At one end is the person who possesses criminal capacity.
At the other is someone whose mental condition deprived him of criminal responsibility.
And somewhere between them may be someone who remains criminally responsible, but whose mental condition materially diminished his capacity.
The law therefore already recognises something important:
The human mind does not always fit comfortably into two boxes marked “SANE” and “INSANE”.
SO WHY DO WE PUT THEM ALL IN PRISON?
And now we arrive at the question that originally bothered me.
If someone commits an exceptionally violent offence but remains criminally responsible, should the only conventional answer necessarily be imprisonment alongside the broader prison population?
I am not suggesting that every murderer or rapist should simply be declared mentally ill.
That would create an equally serious problem.
Indeed, if we reasoned that:
“No sane person could commit murder; therefore every murderer must be insane”,
we would effectively destroy criminal responsibility for some of the very crimes for which society most demands accountability.
The crime itself cannot automatically prove the insanity.
That would be circular.
But perhaps we should be asking a different question.
Should our correctional system distinguish far more meaningfully between ordinary offenders and people who demonstrate extraordinary levels of violence, psychological abnormality, dangerousness or predatory behaviour — even where those characteristics do not satisfy the legal test for criminal incapacity?
Perhaps there is room for something substantially more sophisticated than our traditional binary approach:
Psychiatric hospital OR prison.
Why not specialised secure institutions combining punishment, protection of society, continuing psychiatric and psychological assessment, treatment and rehabilitation?
Someone need not qualify as legally insane before society takes seriously the possibility that something is profoundly psychologically wrong.
AND HERE IS THE QUESTION I CANNOT SHAKE
Let us return to our imaginary axe murderer.
The court concludes that he understood exactly what he was doing.
He understood that killing his family was wrong.
He nevertheless chose to do it.
Legally, that conclusion makes perfect sense.
But outside the courtroom, the ordinary person may still stare at the television and say:
“You cannot convince me that there is nothing wrong with that man’s mind.”
Perhaps both statements can be true.
Perhaps a person can be criminally responsible without being psychologically “normal”.
And perhaps our biggest misunderstanding begins when we use the everyday word “sane” to describe a highly technical legal conclusion that does not actually mean:
“There is nothing psychologically wrong with this person.”
It means something much narrower.
NOW WE WANT YOUR OPINION
This is not merely an academic question.
It goes to the heart of what we believe punishment is supposed to accomplish.
Is prison there to punish?
To rehabilitate?
To protect society?
To treat dangerous offenders?
Or some combination of all four?
And here is the uncomfortable question LFN places on the table:
Can a completely sane and psychologically normal human being deliberately murder, rape, torture or commit another exceptionally brutal crime?
Or does deliberately crossing that boundary itself indicate some form of psychological abnormality — even though that abnormality may fall far short of the legal requirements for criminal incapacity?
And, if so:
Should our criminal justice system have another way of dealing with exceptionally dangerous offenders who are too criminally responsible for a psychiatric institution, but potentially too psychologically abnormal simply to disappear into the ordinary prison population?
We would genuinely like to hear what South Africans think.
Because sometimes the most interesting questions begin with something we have accepted for so long that nobody thinks to ask:
What exactly do we mean when we say someone is “sane”? 🤔
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