Zandile Mafe is accused of setting fire to the National Assembly building in the early hours of 2 January this year. He faces charges of terrorism, arson, housebreaking, theft and possession of explosives. He was arrested on the same day, after he was seen leaving the parliamentary precinct.

Police found in his possession items which he allegedly stole from inside Parliament. The fire caused extensive damage to the Old and New Assembly buildings. 

The Hawks allege that Mafe set Parliament alight. But Mafe’s lawyer, Luvoyo Godla, said his client intended to plead not guilty to the charges.

A day after his arrest, Mafe was examined by district surgeon Dr Zelda van Tonder. She declared that Mafe was suffering from paranoid schizophrenia. Mafe’s disputed confession was made hours after the mental health report was filed.

In January, prosecutor Helene Booysen submitted an assessment report from Van Tonder. Based on this report, an order was granted by Magistrate Zamkelie Mbalo on 4 January 2022, sending Mafe for 30 days of observation at Valkenberg Hospital. 

Mafe’s senior counsel, advocate Dali Mpofu, took Van Tonder’s findings on appeal to the Western Cape High Court. On 18 January, after hearing arguments, Judge Hlope set aside Mafe’s referral to Valkenberg and ordered that he be sent to a correctional facility.

Zandile Christmas Mafe appears at Cape Town Magistrates’ Court in connection with the fire at Parliament on 11 January 2022. (Photo: Gallo Images / Brenton Geach)

However, Van Tonder’s report and the Mafe’s apparent confession became a bone of contention during the accused’s bail hearing on 29 January. Mpofu argued that his client’s confession was inadmissible on the grounds that it had been made while Mafe was certified as a paranoid schizophrenic, highlighting that the report by Van Tonder had been set aside by Hlophe.

On 4 February, Mafe’s application to be released on bail was dismissed by Magistrate Michelle Adams. Mpofu again took the decision to the High Court on appeal. However, in May, the court dismissed his appeal.

On Friday, 12 August, Mafe was scheduled to appear before Judge Elize Steyn. Before proceedings got under way, prosecutor Mervyn Menigo informed Steyn that the accused was refusing to be brought up from the holding cells.

Mafe’s lawyer, Luvuyo Godla, said: “My Lady, my client is not well and he has been on a hunger strike for a considerable period of time. Unfortunately, I didn’t get any information from Pollsmoor [Prison]. They usually advise me as to when Mr Mafe embarks on a hunger strike. This time they did not inform me until I was advised by my client.”

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Menigo again raised the question of Mafe’s mental state.

“It is the State’s intention to raise the mental observation referral in terms of Section 78 of the Criminal Procedure Act (CPA) once again because it was not satisfactorily done with Magistrate Mbalo.

“The report from Van Tonder was already available in June 2022, together with the notification of the State’s intention to raise this issue in terms of Section 78. The defence had this notice of the State’s intention since 20 June and unfortunately a response was not forthcoming from the defence,” Menigo said.

But Menigo was stopped by Judge Steyn, who said: “I don’t want to go into the merits of the matter at this stage. I just want to make sure that the matter is prepared for trial as quickly as possible. My understanding is the State is ready to proceed and the defence is not ready.”

The purpose of the State’s application is to follow the process correctly this time around and get a second medical opinion on Mafe’s mental state. The State told the court that before the trial got under way, they would approach Hlophe about Mafe’s previous mental referral observation.

Objecting to the application, Godla said: “The prosecution bringing a section 78 application in terms of the CPA now is just circumventing the order which was made by a full bench, and bringing it through the back door.

“Provisions of the CPA say that at any stage, it could be in the middle of the trial, if the court is of the view that there ought to be a referral for observation purposes, that will be done. Ordinarily it is always the defence that brings that application, but there is nothing. When it comes at that point, we will deal with it, but for now there is nothing we can do. Remember, we cannot entertain the evidence of Dr Van Tonder — it was set aside,” he said.

Godla said the issue could be entertained only if there were fresh facts that shed light on whether Mafe might not be mentally capable of standing trial.

Menigo gave the assurance that 95% of the State’s evidence had been provided to the defence. The only aspect outstanding was a voluminous crime scene investigation report that would be provided electronically, and the video footage showing in detail how the accused allegedly went about torching Parliament. The State intends calling a number of experts to the stand.

Another issue to be dealt with before the trial gets under way is a trial within a trial relating to the admissibility of the so-called confession made by Mafe, and the authenticity of the video footage showing Mafe setting the fire.

Mafe is back in court on 2 September. DM