On 2 January this year the South African public were shocked by the scenes of fire blazing through the seat of the national legislature. The aftershocks, however, were even more severe… the fact that security at the parliamentary compound was seriously neglected, thus rendering the supreme symbol of South African democracy a soft target, not only for professional criminals, but apparently also for an ordinary semi destitute man – Zandile Christmas Mafe.

The Mafe case soon became rather strange. More specifically, it has become political. He is drawing a train of sympathisers, if not outright supporters, suggesting that Mafe is merely an innocent victim living in the streets Cape Town, who has been framed to pay the price for the parliament conflagration. Mafe apparently seems to earn this sympathy and support irrespective of the hand that he might (or might not) have had in the blaze. That seems to be irrelevant to the sympathisers and supporters.

Advocate Dali Mpofu SC (infamous for his interactions in cases related to Zuma and the EFF to name but a few), was then parachuted in from Gauteng to give further weight and lustre to the Mafe defence. This undeniably added to the political flavour of the case.

It, however, did not stop there, since yet another curious episode had been added to the enfolding Mafe drama; when the court order of the Regional Court for Mafe’s referral to undergo psychiatric observation in the Valkenberg psychiatric facility was successfully challenged in the Cape High Court. The main actor in this episode was the presiding judge, John Hlophe, the judge president of the Western Cape High Court.

In our view Hlophe’s judgment was glaringly wrong. The court misdirected itself about the applicable law, thereby reaching a patently erroneous conclusion. Let us explain:

At the commencement or during the trial of a person who appears, or is alleged to be, mentally disturbed, the Criminal Procedure Act 51 of 1977 provides for procedures set out in sections 77 to 79, in order to establish whether the accused is mentally equipped to stand his trial and whether he is criminally responsible for his actions.

Section 78(2) of this Act, as amended in 1998 and 2017, provides (emphasis added): “If it is alleged at criminal proceedings that the accused is by reason of mental illness or intellectual disability or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or mental disability, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of section 79”.

It is clear that in the case of an allegation of, or, on the appearance of a possible mental illness or intellectual disability, the court must direct that an enquiry be made under section 79. The accused bears no onus: section 78(1A) and (1B) of the Act provide that every person is deemed mentally competent so as to be criminally responsible (hence, mentally capable of being held criminally liable for an offence), unless the contrary is proved on a balance of probabilities.

Therefore, any allegation of criminal responsibility of the accused shall rest on the party who raises it. The accused therefore attracts the burden of proving his incapacity if he alleges that mental illness excludes his criminal capacity. He is then also barred from appealing against a finding of being mentally competent (section 78(8)).

The jurisdictional threshold set in section 78(2) is met when there is either an allegation of criminal incapacity with some indication of the reasons therefore in accordance to case law such as Makoka (a decision handed down by the former Appellate Division as long ago as 1979), or an apparent mental disturbance based on some information before the court that the accused is not criminally responsible.

If this is the case, the court is mandated, that is, it has no choice but to refer the accused for the necessary psychiatric enquiry, whereas, in any other case the court may do so (but is not obliged to act in accordance with section 79). This was confirmed in Malatji v The State, a 2013 decision).

This enquiry is therefore of paramount importance for effective adjudication of a criminal trial, since it either confirms that an accused lacks the necessary criminal capacity to have committed a crime and can therefore not be held criminally liable; alternatively, that the accused at the time of the commission of the act in question was in fact criminally responsible for the act, but that his capacity to appreciate the wrongfulness of the act, or to act in accordance with an appreciation of the wrongfulness of the act, was diminished by reason of mental illness or intellectual disability- in which event the court may take this fact into account when sentencing the accused (section 78(7)).

In consequence the court must adjourn the proceedings pending the outcome of the psychiatric examination. The outcome of the inquiry dispels all doubt regarding the accused’s criminal capacity at the time when the alleged crime was perpetrated.

It is against this backdrop that we find Judge President John Hlophe’s intervention when he overruled the Regional Magistrate’s initial order for Mafe’s psychiatric observation, rather perplexing. Criminal cases, including all issues surrounding an accused’s criminal capacity or possible lack thereof as a result of an apparent mental illness, are the daily bread of Regional Magistrates and they are well-versed in them.

From our understanding of the Criminal Procedure Act, the Regional Magistrate merely applied well-settled obligatory principles of law in a proper and correct way. The prosecutor in the Regional Court also simply and correctly discharged her responsibilities when she requested the court to order the accused’s referral to Valkenberg.

Judge President Hlophe effectively acceded to the spirited pleas of Mafe’s senior counsel, adv. Dali Mpofu. The judge stated that the Regional Court misdirected itself by ordering Mafe’s supervision in Valkenburg. To add insult to injury, even the State Advocate (the NPA’s representative), quite surprisingly largely agreed with the Judge.

What is the use of compulsory legislative provisions if a Judge randomly disregards them? On face value, and if we understand the reasoning of Hlophe correctly when he overturned the order of the Regional Magistrate, he relied on the wrong Act, namely the Mental Health Care Act 17 of 2002.

This Act provides for the care, treatment and rehabilitation of persons who are mentally ill. Hence, on close analysis, the judge seemed to have erred on the applicable law, applying the wrong Act - the Mental Health Care Act instead of the Criminal Procedure Act. In this criminal matter where the criminal capacity of the accused is the central issue and the mentioned provisions of the Criminal Procedure Act are to be applied. The issue is not dealt with by the Mental Health Care Act.

We therefore suspect that Judge Hlophe was confused in his dealing with these two pieces of legislation. The legal issues the High Court had to deal with are not difficult or complicated at all. They are, in fact, dealt with on a daily basis. In the Mafe case, and for inexplicable reasons still somewhat unknown, the High Court went completely astray.

In the Mafe case the Regional Court prosecutor did the accused and his legal team a favour, by pre-empting a possible defence and saving the court time and the taxpayer a lot of money (by not postponing an issue that would probably be an inevitable enquiry to be followed later in any event). The High Court apparently erred on the applicable law, as simple as that.

Dr. Llewelyn Curlewis and Prof. Koos Malan, University of Pretoria.