“We take the liberty of individuals seriously… This is the Western Cape Mr Mpofu, we know what we’re doing.”

This was Western Cape Judge President John Hlophe’s parting shot after delivering a ruling reversing a decision by a lower court to send Zandile Mafe who is accused of setting the national assembly on fire.

The late afternoon ruling dealt the state a huge blow as Hlophe ordered that Mafe must be released from the Valkenberg psychiatric hospital first thing on Wednesday and be taken to a correctional services facility.

“In the event of the bail application not being successful, I can guarantee you, the doors of this court are open, as soon as the record has been made available, I will convene a full bench to hear that. In this province, justice is guaranteed.”

Adv Mpofu had approached the court on behalf of Mafe to set aside the decision taken by the Cape Town magistrate’s court on January 11 to refer Mafe to Valkenberg psychiatric hospital based on a preliminary report.

Mpofu said the preliminary psychiatric report conducted by Dr Zelda van Tonder was available to the prosecution seven days before the day of the court proceedings but was never given to the defense.

“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.

He argued that Mafe was never given a chance to refute the diagnosis made by Van Tonder by getting his own private psychiatrist to conduct an independent assessment of him.

From the beginning of the court proceedings, Hlophe looked inclined to agree with Mpofu’s argument as he criticised the conduct of the magistrate.

“Don’t you think with the benefit of hindsight, the wise thing the judicial officer could have done was number one to postpone the proceedings and give Mr Godla and his client the opportunity to move with the bail application rather than going for a sledgehammer whereby the accused is diverted from the mainstream bail application and condemned to Valkenberg for at least 30 days,” Hlophe said.

Even Mervyn Menigo, for the National Prosecuting Authority started concede that things could have been handled differently.

 “The investigating officer could have  been called in these proceeding to indicate what was his experience of the applicant during his time of arrest and questioning,” Menigo said.

Hlophe told the respondents that that the Mental Health Act requires that a person be observed for 72 hours before any conclusion can be made and that was not done.

“Mr Manika I’m not going to let you off the hook here. You should look at the Mental Health Act, that is where you must get the guidance. There is reference to 72 hours. You do not just look at a person and say  that in my view you are insane…There is a continues evaluation…that enables any doctor to file a report which can be safely relied upon by the court.”

Hlophe further slammed the court for not making any effort on its part to verify if Mafe was in deed mentally disturbed.

 “Would it not have been regular for the magistrate to ask a couple of question to the accused. Good morning. How are you sir, if the accused says go to hell then you know you are dealing with a mentally unstable person. But he did not even greet the accused,” he said.

Mafe, 49, was arrested on January 2, the same day that the National Assembly was on fire. He was charged with arson, theft, housebreaking and possession of explosives. Later the NPA added charges of terrorism.

His lawyers have maintained that he is being used as a scapegoat for the failures of the executive and the legislature.

On Saturday, the court will hear his bail application as per Hlophe’s order.