“A lot has happened behind the scenes,” Judge Nathan Erasmus told the Cape Town High Court in the Zandile Mafe trial on Tuesday.
Judge Erasmus, who had been absent for two previous pre-trials of the case, explained to the court that his absence was to fulfil judicial duties.
“I said I would manage the referral (of Mafe). I had raised concerns between the State and defence virtually about Mr Mafe’s observation. The concerns were in terms of sections 77 and 78, my concerns were placed on record.
“On February 24 I was to make a determination on whether I should make a referral for an independent psychiatrist. On that day I was not available and the report from the Department of Health was not yet available.
“The matter was moved to March 17 when I was not available, as I was on a judicial engagement, nobody enquired about my availability before that date was set for pre-trial.
“I want it to be known that I was in constant communication with both legal teams, gathering all relevant information. In virtual engagements with the State and defence, it was agreed that an order could be made for Mr Mafe’s referral. In all virtual engagements, various concerns were raised.
“Ten days were set out for the Hawks and various stakeholders to plan the logistics of Mr Mafe’s referral. The next available date for pre-trial fell within the recess period in which we find ourselves today,” he said.
Judge Erasmus told the empty court that by law, the court can determine the place of referral. He said that the State had previously raised that Valkenberg Hospital was more appropriate as Mafe was referred there before, and it was the designated place.
“I will not go on about the previous merits of Valkenberg, where the lower courts had previously ordered Mafe’s observation. In virtual discussions, I stated my prima facie view which is inter alia that this is an exceptional case, it is of major public interest and holds political importance.
“I had to strike a balance between public interest and speediness of the case due to its nature. By making the order I make is no judgment of what happened in Valkenburg. Dr Buthelezi, the DG of Health has said he will do an investigation of what happened in Valkenburg,” he said.
Judge Erasmus proceeded to make the order under chapter 13 of the Criminal Procedures Act. The order directed that the head of Pollsmoor Correctional Centre, and/or the head of Fort England psychiatric hospital in Makhanda, a further assigned psychiatrist, Dr Phuzi , as well as Mr Vazi and Mr Sakhasa, who are clinical psychologists at Fort England psychiatric hospital, monitor this observation.
It will be determined if Mafe possesses mental illness or disability; if he is able to understand the proceedings; and if he shows any remorse for his alleged acts of arson. He will be detained for 30 days at Fort England.
The head of Fort England psychiatric hospital is to submit a report under section 79 of the Criminal Procedures Act, on or before May 8, 2023.
Judge Erasmus concluded by thanking the prosecution and defence for their participation in the process. He also thanked the Department of Health for their willingness to assist.
NPA spokesperson Eric Ntabazalila said outside the Cape Town High Court that the NPA was satisfied with this order and the logistics set out.
Mafe’s pre-trial trial continues on May 8 at the Cape Town High Court.