Lawyers representing the man accused of starting a fire in parliament have submitted that decision of a lower court to send him for psychiatric observation was unlawful.

Adv Dali Mpofu  told the Western Cape High Court on Tuesday afternoon that the decision to send his client to Valkenberg psychiatric hospital was taken prematurely and without hearing his side of the story.

On January 11, the Cape Town magistrate's court referred Zandile Mafe to a mental institution for observation for up to 30 days to establish if he is fit to stand trial.

This was done based on a preliminary psychiatric report compiled by  Dr Zelda van Tonder.

“It was impossible, literary, I say that with no fear of contradiction, for Mr Mafe to meaningfully refute the diagnosis of Dr Van Tonder. He is not a doctor...The only way Mr Mafe would have refuted this would have been to avail himself to a private psychiatrist of his choice. That opportunity was denied by a court of law,” Mpofu said.

Mpofu said the National Prosecuting Authority had the preliminary psychiatric report for seven days but never gave it to the defence.

“As of the 4th of January, Mr [Luvuyo] Godla appeared as a legal representative officially for Mr Mafe but was still not furnished with this document. In the ensuing seven days, the document was not furnished and only in less than an hour before the hearing was the document furnished,” Mpofu said.

Mafe, 49, was arrested on January 2, the same day that the National Assembly was on fire.

He first appeared in court on January 4. His lawyers have maintained that he is being used as a scapegoat for the failure of the executive and the legislature.

Mafe’s legal representatives want the decision for him to be sent to a mental institution to be set it aside.

Mpofu told Judge President John Hlophe who heard the matter that the lower court also erred by postponing the matter to February 11, while knowing the law only allows bail proceedings to be postponed just for seven days.