Judge Nathan Erasmus of the Western Cape High Court issued an order preventing the media from publishing a psychiatric assessment of alleged Parliament arsonist, Zandile Mafe, on Thursday.

However, Erasmus added that if an agreement was reached between the State and the defence on the report’s findings before the next court appearance on 13 July, an order would be issued allowing its full contents to be revealed.

Mafe has been behind bars since his arrest in early 2022 after a fire gutted parts of Parliament. He is accused of torching the National Assembly building in the early hours of 2 January. He faces charges of terrorism, arson, housebreaking, theft and possession of explosives.

On 28 March 2023, the court ordered that Mafe be sent to Fort England Psychiatric Hospital in the Eastern Cape to determine whether he was mentally capable of comprehending the gravity of the charges against him, the crime he allegedly committed, and defending himself in court.

On Thursday, the matter was back in court for judgment on Mafe’s capacity to follow court proceedings and appreciate the wrongfulness of an act.

According to Erasmus, the court received an electronic copy of the psychiatric report from Fort England Psychiatric Hospital on the letterhead of the Eastern Cape Department of Health on 24 May.

Copies were sent to both the State and the defence and the court sought both parties’ input on how the case should be handled in light of the report’s findings.

But advocate Dali Mpofu, representing Mafe, was unable to consult with his client because he was in the Eastern Cape. Mpofu also attempted to consult with his client on 7 June, but was unable to do so.

Even though the State had submitted its position on the report, when Erasmus had not heard from the defence by Wednesday afternoon, he requested counsel to meet him in his chambers on Thursday morning before the court hearing.

Mpofu, in his address to the court, stressed the need for consultation with his client, noting that the accused’s attitude would determine the direction the defence took.

Mpofu also said the defence wished to communicate with the medical team at Fort England, emphasising that they were court witnesses. The defence might also bring in other professionals on the matter, but that would depend on the consultations.

Prosecutor Mervyn Menigo submitted: “The State’s attitude towards the report is that it does not dispute any findings contained in the report. It is also the State’s submission that the defence needs to indicate that they would accept or dispute the findings.”

The issue of the findings of the report was raised when Erasmus put it to the parties that they had seen the report, it had been handed into court, and had hence become a public document.

Erasmus said there would be a great deal of public speculation about the report. As a result, he asked the defence and the State what their thoughts were on the media having access to the report.

In his response, Mpofu said: “There is consensus between the parties. Given the nature of the matter, it might be prudent not to disclose anything at this stage, particularly given the nature of the matter and also on the rights we have reserved to seek the view of other experts. So when the finding is disclosed, the whole picture will be given.”

Menigo told the court that the State did not dispute the report and supported the request for postponement as it was in the interest of justice.

Judge Erasmus ordered that the contents of the psychiatric report not be disclosed. The reasons provided by the court were:

1. The act provides that a party may dispute the findings in these types of reports.
2. The defence did not have the opportunity to consult with their client about whether they want to dispute it or not.
3. It goes to his medical condition and I [Judge Erasmus] will therefore give them that opportunity to consult.

The court also ordered that Mafe be sent to Pollsmoor Prison’s hospital section. His case has been postponed to 13 July. DM