Judge James Lekhuleni on Monday reserved judgement on the “urgent” bail appeal of Zandile Christmas Mafe after a four-hour hearing at the Western Cape high court, describing the matter as “complex”.
Mafe, who faces charges of setting parliament on fire on 2 January, challenged the Cape Town regional court’s decision to deny him bail. His lawyer, advocate Dali Mpofu, said his client’s psychological observation a day after his arrest and confession shortly thereafter was illegal and “tainted the whole case”.
A district surgeon from Karl Bremer Hospital, who examined Mafe on 3 January, made a provisional diagnosis of “paranoid schizophrenia”, referring Mafe to undergo mental observation for 30 days at the Valkenberg Hospital in Cape Town.
But Western Cape Judge President John Hlophe declared the detention for psychiatric observation unlawful in late January, allowing the bail application to proceed.
The referral to Valkenberg was presented to court in mid-January by the state prosecuting team. Mpofu back then argued it would be “abuse” if Mafe were to be detained for months only to be found “sane”.
On Monday, Mpofu said it would be “the biggest tragedy” if Mafe were to remain in custody “on the basis of a flimsy piece of paper to now add another four months of useless observations” that will show “nothing is wrong with him”.
Judge Daniel Thulare, hearing the matter with Lekhuleni, suggested that the best way forward was to refer the matter back to regional court “to deal with the issues as they should have”. Referring to the physical examination at Karl Bremer Hospital, Thulare said those findings should have been explained in court by the doctor.
“It is dangerous to say ‘Yes we can allow this man back to society’ until we know what the doctor meant,” argued Thulare.
The state is opposing the bail appeal application. Senior prosecutor advocate, Mervyn Menigo, maintained that Mafe’s release may endanger the safety of the public, undermine public peace and security, and that he was a flight risk.
The state said the applicant had failed to adduce any evidence of exceptional circumstances, which he was obliged to do if he wanted to be released on bail.
Outside court, Western Cape spokesperson for the National Prosecuting Authority, Eric Ntabazalila, told journalists that “the accused’s lawyers did not bring anything new [and] had not argued that the magistrate was wrong in terms of the facts and the law in taking that decision”.
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, theft, two counts of arson and one of being in the possession of explosives.
Irrespective of the bail-appeal outcome, the matter continues in the Cape Town regional court on 12 May after the state’s request to finalise outstanding investigations.