CAPE TOWN - The State suffered the first blow in its attempts to keep accused Parliament fire accused, Zandile Mafe detained at Valkenberg Psychiatric Hospital when Western Cape High Court Judge President John Hlophe found that this was “unlawful and should not have happened”.
Mafe will be released on Wednesday morning to be kept in a regular detention facility ahead of his bail application hearing scheduled on Saturday, after Judge Hlophe set aside his referral for a 30-day observation period at Valkenberg Hospital. The court also granted a cost order against the State.
Mafe - who faces six criminal charges including two counts of arson, housebreaking with intent to steal, theft and being in contravention of the Terrorist and Related Activities Act - is accused of setting alight the Parliament building on January 2.
The State was successful in the Cape Town Magistrate’s Court last week where magistrate Zamekile Mbalo had Mafe sent for psychiatric assessment after a district surgeon, Dr Zelda van Tonder, diagnosed Mafe with paranoid schizophrenia.
Van Tonder had allegedly assessed Mafe a day after his arrest and despite the State having this report ready at Mafe’s court appearance on January 4, it had only been submitted to court and Mafe’s defence at his second court appearance on January 11.
Senior State prosecutor Mervyn Menigo, instructed by State prosecutor Helene Booysen, said he could not provide any reason why the State had not furnished the court with details relating to an observation at Mafe’s first court appearance.
Representing Mafe on pro-bono,Advocate Dali Mpofu SC argued that his client was being assessed “illegally” at Valkenberg and that court proceedings so far have been “irregular and prejudicial”.
He said his client had not been assessed under the Mental Healthcare Act which stipulates guidelines for a 72-hour involuntary assessment.
“Between his arrest and the alleged observation, there is no such period...You can’t just look at a person and make such an observation. “We are here wasting the the time of the court.
For more than two weeks, (Mafe) has not been given a chance to argue for bail. We should frown on such behaviour by the State... What is really behind the rushed referral by the State?
They are wanting to make Mafe a modern day offender so he may be confined forever where he can’t offer his version,” Mpofu submitted.
He argued that Mafe’s further indefinite detention was violating his right to liberty, saying this was a “travesty of justice and patently unjust”.
Addressing the State, Judge Hlophe said Mafe’s referral to Valkenberg was “premature”.
“The further detention at Valkenberg Hospital is unlawful and he is to be released with immediate effect. He is to be taken to a normal correctional facility. The order (by Mbalo) was improper and unlawful. We take the liberty of a person seriously.”