On 2 January this year the South African public were shocked by the scenes of fire blazing through the seat of the national legislature. The aftershocks, however, were even more severe… the fact that security at the parliamentary compound was seriously neglected, thus rendering the supreme symbol of South African democracy a soft target, not only for professional criminals, but apparently also for an ordinary semi destitute man – Zandile Christmas Mafe.
The Mafe case soon became rather strange. More specifically, it has become political. He is drawing a train of sympathisers, if not outright supporters, suggesting that Mafe is merely an innocent victim living in the streets Cape Town, who has been framed to pay the price for the parliament conflagration. Mafe apparently seems to earn this sympathy and support irrespective of the hand that he might (or might not) have had in the blaze. That seems to be irrelevant to the sympathisers and supporters.
Advocate Dali Mpofu SC (infamous for his interactions in cases related to Zuma and the EFF to name but a few), was then parachuted in from Gauteng to give further weight and lustre to the Mafe defence. This undeniably added to the political flavour of the case.
It, however, did not stop there, since yet another curious episode had been added to the enfolding Mafe drama; when the court order of the Regional Court for Mafe’s referral to undergo psychiatric observation in the Valkenberg psychiatric facility was successfully challenged in the Cape High Court. The main actor in this episode was the presiding judge, John Hlophe, the judge president of the Western Cape High Court.
In our view Hlophe’s judgment was glaringly wrong. The court misdirected itself about the applicable law, thereby reaching a patently erroneous conclusion. Let us explain:
At the commencement or during the trial of a person who appears, or is alleged to be, mentally disturbed, the Criminal Procedure Act 51 of 1977 provides for procedures set out in sections 77 to 79, in order to establish whether the accused is mentally equipped to stand his trial and whether he is criminally responsible for his actions.