Western Cape Judge President John Hlophe: Parliament arson accused ‘knew what he was doing’

Setting aside an order that National Assembly alleged arsonist Zandile Mafe be kept at Valkenberg psychiatric hospital for observation, Western Cape Judge President John Hlophe mused that he personally took Mafe’s word “for now” that he was “not mad, he knows what he was doing”.

The Judge President added that Mafe’s pro bono legal team, advocate Dali Mpofu and Luvuyo Godla, had conveyed as much to the court.

Mafe’s lawyers had been “wise enough”, added Hlophe, to say “no, we don’t believe what you are telling us, he knows what he is doing” with regard to an earlier one-page “cryptic” district surgeon’s assessment of Mafe diagnosing him as suffering from paranoid schizophrenia.

Reviewing and setting aside Cape Town magistrate Zamekile Mbalo’s decision to refer Mafe for 30 days’ psychiatric observation, Hlophe ruled that Mafe’s further detention at Valkenberg was unlawful “and should come to an end with immediate effect”.

Mafe, he added, should be placed in “a normal correctional facility and taken out of Valkenberg”.

On 11 January, prosecutor Helene Booysen informed the Cape Town Magistrates’ Court that a charge of destruction of essential infrastructure against Mafe had been dropped and that the 49-year-old would now be charged with contravening the Protection of Constitutional Democracy against Terrorist and Related Activities Act No 33 of 2004.

In other words, Mafe is accused of terrorism.

According to Mafe’s charge sheet, he intentionally “delivered, placed, discharged or detonated an explosive at Parliament on 2 January”.

In a Schedule 6 offence, the onus is on Mafe to provide evidence that shows exceptional circumstance which would permit his release on bail. 

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On Tuesday, Hlophe said the magistrate had applied a “sledgehammer approach” to“condemn” Mafe for psychiatric observation and to “bump him out of the bail queue”.

Mafe’s bail application will be heard on Saturday, but he will not be in court as he has been diagnosed with Covid-19 and is required to isolate.

Prosecutor Mervyn Menigo said that the State would oppose bail and that it was prudent to bear in mind that a bail application was not a criminal hearing,

What still needed to be ascertained was whether Mafe was capable of understanding the application and the proceedings. 

“Any court would have to appraise itself that the applicant is following the proceedings and that the magistrate was not wrong down the line. Let’s play it forward into the future,” he suggested.

Menigo said the court hearing the bail application would still have to take into account Mafe’s state of mind. 

“Then we are back at square one and the bail court would be obliged to refer the accused.”

If Mafe were unable to understand “and we continue, that would not be due process, in my submission”, said Menigo.

Menigo submitted that the court deal with Mafe’s referral as it should have been dealt with, set aside the order and let a new magistrate “deal with it and properly ventilate issues arising”.

Hlophe remarked that at Mafe’s appearance in the magistrates’ court no one had bothered to greet him and that it would not have been irregular for the presiding officer to ask him a few questions to determine his state of mind. 

He added that there had also been “scant information” about Mafe’s “paranoid delusions”.

“It is impossible to make a diagnosis in 24 hours… it is common sense. In the Mental Health Act, there is reference to 72 hours’ observation and assessment, not just once-off… you can’t say: ‘In my view, you are insane’,” said Hlophe. 

Observation for 72 hours, he said, would enable a doctor “to file a report that can be safely relied on by the court”.

The court heard that Mafe was legally represented and that his lawyers would be able to engage and consult with him before bringing the bail application on Saturday. DM