Did Zandile Mafe discharge or place an explosive device in a state building with an intent to destroy it or cause major economic loss in SA?
This is what state prosecutors must prove to convince the court that the man accused of burning parliament is indeed a terrorist.
The National Prosecuting Authority (NPA) added terrorism, its most damning charge, to a list of those faced by Mafe when he appeared in the magistrate's court in Cape Town yesterday.
According to the charge sheet, “upon or about January 2 2022 and at or near parliament, Cape Town ... the said accused did unlawfully deliver, place, discharge or detonate an explosive or other lethal device in, into or against a place of public use, a state or government facility, to parliament building, with the purpose, amongst others, of causing extensive damage to, or destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss”.
To secure a conviction under the Terrorist Act, legal experts said the state must prove that he caused serious interference with or serious disruption of an essential service, facility or system, or the delivery of any such service, facility or system, whether public or private.
If found guilty, Mafe faces at least two decades in prison as he stands accused of contravening the Protection of Constitutional Democracy Against Terrorist and Related Activities Act.
Lawyer Wikus Steyl said the Act determines someone is guilty of terrorism if they discharges, delivers and or places an explosive devise in a place of public use.
“It does not matter if the explosive device was discharged or not — the mere fact that an explosive device was placed or delivered to a state or government facility constitutes the crime.
“It is highly unlikely that a person who sets off an explosive device at a taxi rank will be charged with terrorism as the damage will not result in a national major economic loss,” Steyl said.
Another legal expert, Ian Levitt, said if the state wanted to secure a conviction of terrorism against Mafe, it had to prove beyond reasonable doubt his offence had created a serious public emergency situation or insurrection.
He added that terrorism was also defined as a calculated intent to cause serious interference with or serious disruption of an essential service, facility or system, or the delivery of any such service, facility or system, whether public or private.
“At the end of the day, the location also matters because parliament is a big political space and they are throwing the book at this,” he said.
“Terrorism convictions in South Africa are not as common as seen in the international sphere, however, we as South Africans are not totally immune to it.”
During proceedings, the prosecution revealed the 49-year-old has been diagnosed with paranoid schizophrenia.
The court referred Mafe to a mental institution for observation for up to 30 days to establish if he is fit to stand trial. His case was postponed to February 11.
He threatened to go on hunger strike if he's not released on bail. During his appearance yesterday, a usually dishevelled Mafe appeared clean- shaven, wearing a full black suit and was represented by a team of legal eagles, including Adv Dali Mpofu.
Criminal law expert Nthabiseng Dubazana said any charges would be irrelevant should a medical report in February find that mentally, Mafe was not capable of committing the crime he's accused of.
“If a medical report says he was not able to understand what he did, then he will be referred to a mental institution and treated, following which he will be released,” Dubazana said.
In 2013, the first terrorism conviction in the new dispensation, SA secured its first treason conviction in the case of the “Boeremag Two” who were accused of preparing a home-made bomb that was due to be placed to injure or kill then president Nelson Mandela in 2002 while he was on his way to open a school in Bolobedu, Limpopo.
— Additional reporting by Philani Nombembe
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