The Verulam Family Court is expected to make a ruling on Tuesday on whether Kessie Nair can apply for bail or be sent for mental observation before applying for bail.

State prosecutor Carlson Govender and Nair’s attorney Chris Gounden submitted their final arguments on Monday afternoon on the state’s application that Nair be sent for a 28-day mental assessment at Fort Napier Hospital in Pietermaritzburg.

Nair – the former Durban councillor and convicted fraudster who called President Cyril Ramaphosa the k-word in a widely circulated Facebook video – has been charged with six counts of crimen injuria and two of incitement of public violence.

READ: Kessie Nair’s brother testifies: ‘I noticed changes in his mental state’

Govender argued that Nair should be treated as an in-patient at Fort Napier.

He said the court should consider the evidence of a district surgeon who examined Nair on the day of his first court appearance, the evidence of Nair’s brother Krishnan and that of the investigating officer Warrant Officer Ajay Lutchnan.

Signs of mental illness

The district surgeon had found that Nair showed no signs of mental illness but recommended that he should be sent to Fort Napier for 28 days, the court heard.

Krishnan told the court that he noticed “changes” in Nair’s mental state when he visited him at Westville prison on “numerous occasions”.

READ: ‘Forgive me’ – Kessie Nair apologises to Ramaphosa, public for k-word slur

Lutchnan told the court that there was a time when he couldn’t understand what Nair was saying when he took his fingerprints on the day of his arrest.

Lutchnan said they had interacted about Nair’s time in prison and about Nair “belonging to a 26 section of the prison”.

However, Gounden hit back at the state’s witnesses.

“The district surgeon is incompetent to do a mental observation, has no qualifications to deal with someone’s mind and lacked expertise to make such an assessment. The district surgeon recommended that the accused be sent to Fort Napier but found that he had no signs of mental illness, which is contradictory,” argued Gounden.

His said Krishnan’s evidence should not be considered because “he can’t manage his own affairs” and had also “sought assistance”.

Krishnan had admitted in court that he was a member of Alcoholics Anonymous but said he had been clean for two and a half years.

Gounden also argued that Nair should have been summoned to appear in court instead of being arrested. He said most people who were facing crimen injuria cases had only been summoned to appear in court.

High-profile case

Gounden also argued that Nair’s case was not a high-profile case.

“Whether it’s the president or domestic worker, every man is equal before the law. There’s also nobody toy-toying outside the court except for a few reporters in court,” he said.

He also submitted that Nair was on a donor list for a heart.

“The state has failed to bring to your attention that there’s a waiting list for beds at Fort Napier. The first available date is some time in April next year,” he said.

Gounden said Nair should be granted bail as he would avail himself should he be needed in court.

The court heard that other complainants in the matter were eThekwini Mayor Zandile Gumede, her deputy Fawzia Peer, KZN Human Settlements and Public Works MEC Ravi Pillay, former deputy mayor and speaker of the eThekwini municipality Logie Naidoo and former eThekwini councillor Brandon Pillay.

It is not clear whether Ramaphosa and the other complainants in the matter have filed their statements.

The court refused Gounden permission to ask Lutchnan whether Ramaphosa had filed his statement on the matter, since he was listed as a complainant.

Lutchnan, who is attached to the Hawks, told the court that investigations were at an advanced stage in the matter.

He said there were about 10 outstanding statements in the matter.

When News24 asked the NPA whether the president had filed his statement, director of public prosecutions (DPP) in KwaZulu-Natal Advocate Moipone Noko said: “This matter is still under police investigations therefore the details cannot be divulged.”

Magistrate Ncumisa Gcolotela rolled the matter over to Tuesday where she was expected to make a ruling in the state’s application.

Nair remains in custody at the Westville Prison.

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