'It's common sense': Top quotes from Judge Hlophe on the Zandile Mafe case

Controversial Western Cape Judge President John Hlophe's decision to release arson-accused Zandile Mafe has raised questions. These are the top quotes from the judgment.

FILE: Western Cape Judge President John Hlophe. Picture: GCIS

CAPE TOWN - The Western Cape High Court on Tuesday ordered that alleged Parliament arsonist, Zandile Christmas Mafe, be released from Valkenberg Psychiatric Hospital.

Mafe was admitted to the facility last Thursday after a district surgeon diagnosed him with paranoid schizophrenia and recommended that he be admitted for a 30-day mental assessment.

The 49-year-old, who has now contracted COVID-19 and is in isolation for eight to 10 days, has been accused of setting Parliament alight earlier this year and faces a slew of charges, including that of arson and terrorism.

Mafe's lawyer, Advocate Dali Mpofu, questioned how the State could charge him with terrorism and at the same time question his state of mental health.

Judge President John Hlophe ruled Mafe should be released from the Valkenberg Psychiatric Hospital first thing on Wednesday morning.

"... he be placed in a normal correctional facility and taken out of Valkenberg - that order was made improperly and unlawfully," Hlophe said.

His bail hearing will be heard at the Cape Town Regional Court on Saturday subject to further consultation between the parties. Mafe, through his legal team, said that there was nothing wrong with him and he should be released on bail.

Hlophe was one half of the decision to release Mafe. The Judge President himself has had a dark cloud hanging over his head for some time. He approached Constitutional Court judges to allegedly interfere with their decision regarding Zuma and Thint after the Supreme Court of Appeal found against them in the arms deal saga. He faced possible impeachment over the allegations after the Judicial Conduct Tribunal found him guilty of misconduct.

Hlophe was found guilty of approaching two apex court justices on different occasions to discuss various issues, which included his emphasis on “sithembele kunina” – meaning we trust in you – regarding the Zuma/Thint matter.

Hlophe last year abandoned his urgent interim court bid to prevent his suspension after the Judicial Service Commission (JSC) said there was no immediate threat that he would be suspended. In an affidavit ahead of the hearing, JSC secretary Sello Chiloane said President Cyril Ramaphosa could only suspend Hlophe “under the advice of the JSC”, but the commission had not given any advice as yet. The decision to impeach him will sit with Members of Parliament when the recommendation is given.

Hlophe on Tuesday reserved judgment on whether Mafe's referral by the state to the psychiatric hospital should be set aside in its entirety and said he would hand it down within the prescribed period of three months.

These are top quotes from Hlophe's judgment:

  • Hlophe: "…the court is indebted to other staff officials, there are people who should have gone long time ago…I’m talking about the registrars, I’m talking about our court orderlies and I’m talking about everyone else who’s here in court, we take the liberty of individuals seriously and I think all of us have that thing in common and thank you very much...".
    Mpofu: "…my lord…I’m indebted to the court as well and please convey our gratitude to the staff…".
    Hlophe: "…thank you very much, I can only say this is the Western Cape, Mr Mpofu. We know what we are doing…".

  • Hlophe: "…this is my second question, because I’m going to keep asking you questions and I have no doubt my learned sister has a number of questions as well…".

  • State prosecutor Mervyn Menigo: "…the one pager from the doctor [psychiatric evaluation of Mafe] was perhaps insufficient, perhaps more could have been made by defence council with regards to their rights to challenge that particular document…".
    Hlophe : "…don’t you to think with the benefit of hindsight the wise thing for the judicial officer to have done was, number to postpone the proceedings and give Mr Godla and his client an opportunity to move the bail application, rather than going for a sledgehammer whereby the accused is diverted from the mainstream bail application line, condemned to Valkenberg for at least 30 days…".

  • Hlophe: "…the problem Mr Menigo is this, the court [Cape Town Magistrates Court] never even attempted to hear the bail application, that was not withstanding the insistence by council that in my view is a gross irregularity…".

  • Hlophe: "…it’s impossible to have had a proper diagnosis in less than 24 hours… it’s common sense… if you look at the Mental Health Act, there’s reference to 72 hours and there’s a reason for that…the observation and assessment is not just a one-off thing, you don’t look at the person and say in my view you’re insane, in my view you will not understand proceedings… there’s a continues evaluation and we all know what happens there… professional staff, a psychiatrist and that is done for at least 72 hours that would enable any doctor to file a report which can safely be relied upon by a court. That’s not what we’re seeing here…".