Alleged parliament arsonist Zandile Mafe’s legal team appealed the denial of his bail in the Western Cape High Court on Monday, 25 April.
Dali Mpofu attacked the alleged confession made by the accused and the physical assessment that led to Mafe being confined to Valkenberg. He said both these documents were not worth the paper they were written on.
The State countered that the defence failed to prove that exceptional circumstances exist to warrant Mafe’s release on bail – both in the initial application and the appeal.
MAFE BAIL REFUSED IN JANUARY
Zandile Mafe’s bail application was dismissed by Magistrate Michelle Adams in the Cape Town Regional Court.
Mpofu and Senior State Advocate Mervyn Menigo went head to head for eight hours on 29 January and the accused spent a considerable amount of time on the stand.
Adams delivered her judgement on 4 February. She said Mafe’s bail application was refused because the court was not satisfied that exceptional circumstances exist that in the interest of justice permit his release.
She also said the similarity between the statements in court and the alleged confession was alarming because in the confession Mafe allegedly threatened to commit more crimes against the State until his demands were met.
MPOFU SAYS ALLEGED MAFE CONFESSION IS WORTHLESS
On Monday, Mpofu told High Court Judges Daniel Thulare and James Lekhuleni that the refusal of bail was incorrect because it was based on a “so-called confession” that was not worth the paper it was written on
“The thing is not a confession,” said Mpofu. “Even if it was a confession it doesn’t say what the Magistrate’s Judgement says.”
Mpofu said a confession is an admission that details all the parts of the defence and added that only the first sentence of the so-called confession had anything to do with the matter.
In this first sentence, Mafe allegedly said it was right to burn parliament but he never said he did it.
For clarity, the judges asked if the defence is saying the accused did not unequivocally admit guilt in the alleged confession and Mpofu said yes.
Mpofu went on to explain why the confession was inadmissible and why it should not have been taken in the first place.
Following his arrest, Mafe was taken to district surgeon Dr Zeld van Tonder at 10:30 on 3 January for a “normal examination.” By 12:18 on the same day, Mafe made the alleged confession.
The defence said a confession is only admissible if it was offered voluntarily and the person is sound of mind.
Van Tonder preliminarily diagnosed the accused with paranoid schizophrenia, which eventually led to Mafe being confined to Valkenberg for observation.
The referral was later set aside by Judge President John Hlophe in the High Court. The decision paved the way for Mafe’s bail application.
MENTAL HEALTH OF ACCUSED IN SPOTLIGHT AGAIN
In a twist, at this point, Judge Thulare remarked that the core matter of the state of Zandile Mafe’s mental health had not been fully ventilated and the best approach would be to refer the matter back to the lower courts.
“It would appear to me that the question needs to be investigated. It cannot be left hanging,” said Judge Thulare.
While Judge Lekhuleni asked whether the court can “unleash” the accused while an incomplete says he suffers from paranoid schizophrenia.
Judge Thulare said Dr van Tonder never had a chance to explain to the Magistrate’s Court what the report meant.
“She must tell the court what paranoid schizophrenia meant. The report contains conclusions so there must be facts.”
After this question from the bench, Mpofu spent a great deal of time arguing that his client was of sound mind.
Menigo was also subjected to questions about Dr van Tonder’s report and his opinion on Mafe’s ability to understand proceedings.
Mpofu said the mental health assessment cannot be resurrected like Lazarus because the state has completely dropped the matter and Mafe himself made it clear that he is not mentally ill while he was on the stand.
“It would be the greatest tragedy if Mafe must be put in months of observation on the basis of a flimsy piece of paper. I could put my own money on it and guarantee that they will find nothing wrong with him,” said Mpofu.
STATE SAYS MAFE WAS ABLE TO FOLLOW PROCEEDINGS
Later, Menigo said he and Mpofu could agree that Mafe was able to follow proceedings on 29 January but neither can say whether he appreciated the severity of the crimes without a panel of psychiatrists.
Menigo said the defence zeroed in on one aspect – the alleged confession – where the matter must rise and fall but Magistrate Adams considered more factors in her judgement.
The State pointed out that it had more incriminating evidence besides the alleged confession.
Menigo referred to the self-incriminating “pointing out” in which Mafe allegedly showed the investigating officer Colonel Christian Theron where he purchased the petrol he allegedly used to start the fire and how he supposedly gained entry to the building.
Reference was also made to the 30 hours of footage that allegedly shows the accused in parliament.
The State said Mafe was initially charged with housebreaking and arson but the charges were upped to terrorism after his alleged confession and the discovery of political material at his Khayelitsha home.
In his heads of argument, Menigo wrote that it will be alleged, at the trial, that the motive for the attack flows from the [Mafe’s] deeply held political, ideological and philosophical beliefs and also intense resentment with the South African Government.”
Menigo said that Magistrate Adams considered all the circumstances put forward in the bail application but asked whether she needed to waste pages on “irrelevant circumstances” as not all the exceptional circumstances offered by the defence were explicitly addressed in her judgement.
The State also dismissed the defence’s claim that they have repeatedly ambushed with new evidence.
Menigo said the defence did not request any information for 27 days before Mafe’s bail application and that his counsel did not do due diligence.
He concluded that the Magistrate’s decision and value judgement was not wrong and that she was right to refuse bail.
Mpofu believes he’s proved beyond a shadow of a doubt that the motive that Magistrate Adams’ judgement is based on is “deficient.”
Judges Thulare and Lekhuleni reserved their judgement. It is not clear when it will be delivered.
Mafe’s next court appearance is expected on 12 May. In his last appearance, the State asked for a postponement to complete its investigation.