CAPE TOWN - The Western Cape High Court has found that no justification existed for a 30-day psychiatric evaluation referral for accused Parliament arsonist, Zandile Christmas Mafe.
The court found that such a referral was “substantively and procedurally flawed, which resulted in a gross irregularity” and has accordingly been set aside.
Acting judge Raadiyah Wathen-Falken said Mafe’s counsel should have been granted the opportunity to present their evidence to challenge the district surgeon’s assessment - in which Mafe was diagnosed with paranoid schizophrenia - which could have been presented at the bail hearing.
Judge Wathen-Falken said this course “would have best informed the magistrate in his decisions as to bail and any potential orders in terms of the Criminal Procedures Act (CPA)”.
“The evidence on record demonstrates to this court that the magistrate did not at any point thoroughly consider the gravity of his decision to refer Mafe for psychiatric evaluation and how same would impact on his personal freedom and human dignity.
“There was never an allegation that Mafe was not able to understand the court proceedings.
“Mafe was entitled to know why his bail application would not be heard and, moreover, why he was not allowed to present evidence in opposition to the Section 78 application.
“The magistrate simply failed to inform him or address his counsel on these issues. The actions of the magistrate constitute an irregularity.”
Judge Wathen-Falken said she echoed Mafe’s attorney, Dali Mpofu SCs contention that the denial of Mafe’s right to challenge the district surgeon’s report which led to a failed bail application “impacted on his constitutional right to be heard fairly”.
“The record reflects that the magistrate did not at any stage dignify Mafe’s plea to be heard on bail with any response whatsoever thereby impacting his rights entrenched in the Constitution.
“Mafe was entitled to apply for bail. The magistrate made no enquiry into Mafe’s ability to understand the proceedings. In fact there was nothing preventing the magistrate from proceeding with the bail application. Dr van Tonder’s report of the circumstances would have been one of the factors to consider in his bid for bail,” said Wathen-Falken in her judgment.
Mafe remains in custody at Pollsmoor Prison and his next court appearance will be on May 12 where he faces charges of housebreaking with intent to commit terrorism, arson and theft.