Western Cape Judge President John Hlophe on Tuesday declared unlawful the detention for psychiatric observation of the man accused of setting parliament on fire, but reserved judgment on the legality of the referral to a later date.
Hlophe ordered the release of Zandile Mafe from Valkenberg Hospital with immediate effect and for his bail application to proceed.
“He should be released first thing tomorrow morning and be placed in a normal correctional facility and taken out of Valkenberg,” Hlophe said.
During Mafe’s second court appearance last week, advocate Helene Booysen said a district surgeon at Karl Bremer Hospital, who examined Mafe a day after his 2 January arrest, found that he suffered from paranoid schizophrenia.
On Tuesday, advocate Dali Mpofu, for Mafe, told the high court the referral was, “if anything”, a “gruesome irregularity” because Mafe was not observed according to the prescribed proceedings, which include a 72-hour observation. The defence argued the state had received the referral letter on 3 January, during Mafe’s first court appearance, but did not hand it in until his second appearance a week later.
State advocate Mervyn Menigo submitted to Hlophe that, should the matter of referral be set aside, it should be sent to a district court to conduct proceedings in terms of the Criminal Proceedings Act “and hopefully conduct it this time properly”.
Hlophe responded that by doing so, he would “continue to marginalise the accused … to push him out of the bail queue unlawfully in circumstances where he says he wants a bail application”.
Mpofu requested the referral be set aside and that a date be set for Mafe’s bail application. The matter is expected to be heard on Saturday but the date for the bail application is subject to Mafe completing isolation after he contracted Covid-19.
Hlophe reserved judgement on whether the referral by the state should be set aside in its entirety and said he would hand it down within the prescribed period of three months.
Mafe faces six charges after the state withdrew a charge of destroying essential infrastructure and added a new one of terrorism under the Protection of Constitutional Democracy Against Terrorist and Related Activities Act.
The other charges include housebreaking with intent to steal and theft, two counts of arson and one of being in the possession of explosives.