Two of three judges sitting in the Western Cape High Court ruled on Monday that Zandile Mafe – the man accused of torching the National Assembly earlier this year – would not be granted bail.

The judgment was reached after nearly two hours of arguments presented by prosecutor Mervyn Menigo and Dali Mpofu, counsel for the defence.

Reading out the majority judgment, Judge Daniel Thulare said: “The bail application appeal of the appellant is dismissed.” Judge Noluthando Nziweni concurred.

Judge James Lekhuleni, reading out his minority judgment, said: “In my view, and with all the evidence before me, I would have upheld the decision and released Mafe on bail.”

This is the second bail application appeal hearing after judges Thulare and Lekhuleni, who presided over Mafe’s first bail application appeal, failed to reach a decision on 24 May. To break the stalemate, Nziweni was appointed by Judge President John Hlophe as the third judge.

Alleged arsonist Zandile Mafe in the Cape Town Magistrates’ Court on 11 January 2022. His legal team indicated they will appeal against the latest bail decision. (Photo: Gallo Images / Daily Maverick / Leila Dougan)

Mafe appealed against the decision by Cape Town Regional Court magistrate Michelle Adams to deny him bail on 4 February. In her ruling, Adams said Mafe did not satisfy the court that exceptional circumstances existed to permit his release.

Mafe is charged with housebreaking with intent to commit terrorism and arson, arson, terrorism and theft. The charges stem from an incident in the early hours of 2 January 2022, when he allegedly set fire to Parliament.

The fire caused widespread damage to the Assembly buildings. If convicted on the terrorism charge, Mafe faces the prospect of life imprisonment.

He was arrested while the blaze was still being fought. 

Mafe was examined by district surgeon, Dr Zelda van Tonder, within 24 hours of his arrest. 

Mpofu argued that Van Tonder, who diagnosed Mafe on 3 January as suffering from paranoid schizophrenia, should have been called by the State to testify.

Following this diagnosis, Mafe made a confession which Mpofu argued was inadmissible – admissibility will be determined by a trial-within-a-trial.

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Mafe appeared in the Cape Town Magistrates’ Court on 4 January and the matter was postponed to 14 January for bail information purposes. At that juncture, the State presented Van Tonder’s assessment report and the court referred Mafe to Valkenberg psychiatric hospital for observation. The referral was set aside by Judge Hlophe on 19 January.

Prosecutor Menigo told the court that in terms of section 60 (11) of the Criminal Procedure Act, the court correctly found that no exceptional circumstances existed for Mafe to be granted bail and that it was in the interest of justice not to release him.

The State’s case, Menigo argued, is not based solely on Mafe’s confession – which the defence contends is inadmissible – but that evidence would be presented to show that the accused planned the arson attack with premeditation.

“The State will argue that the accused got petrol from a garage, took a taxi to Cape Town… when he couldn’t gain access to Tuynhuys he got access from the Old Assembly. 

“The accused… is seen from video footage putting boxes and newspapers on top of each other in the Old and New Assembly and setting it alight.”

The State agreed that Mafe’s mental state needed to be determined. At this stage, Menigo said, there is a presumption that the accused suffers from paranoid schizophrenia.

Mpofu argued: ‘“The court can only conclude that Magistrate Adams was wrong [in denying bail]. If the magistrate had considered all the relevant aspects for and against Mafe, then the court should have granted him bail. The only conclusion is that the court’s decision was wrong.”

Mpofu’s arguments centred on the apparent confession Mafe made shortly after Van Tonder’s diagnosis. 

Also, said Mpofu, the affidavit of investigating officer, Colonel Christiaan Theron, was thrown at them midway during the bail proceedings.

Zandile Mafe in the Cape Town Magistrates’ Court on 11 January 2022. He is charged with housebreaking with intent to commit terrorism and arson, arson, terrorism and theft. (Photo: Gallo Images / Daily Maverick / Leila Dougan)

“There was no way the defence could refute the statements and have filed a replying affidavit. The State should have interrogated Theron’s affidavit on the stand, which they failed to do.

“The confession failed the basic test. My client was not sober and of sound mind. My client said he was induced to make a confession,” said Mpofu.

According to Mpofu, the magistrate misrepresented what was said in the confession. This amounted to an irregularity in that the court had found that no exceptional circumstances for bail had existed, Mpofu said.

Advocate Luvuyo Godla, second counsel for Mafe, said they accepted the majority ruling rejecting their client’s appeal.

“We will sit and reflect comprehensively on the decision of the court, but I’m inclined to indicate we will appeal. If needed… we will appeal until the last court of the land, we will do so. It is still not over,” Godla said.

Mafe will remain behind bars until his next appearance on 9 June for the matter to be referred to the Western Cape High Court for pre-trial purposes. DM

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