Johannesburg – Lawyers for a Durban University of Technology student accused of using a slingshot during recent #FeesMustFall protests argued in the Constitutional Court on Wednesday that the decision to refuse him bail was unconstitutional.
Bonginkosi Khanyile, who was arrested during running battles with police on September 27, has been charged with incitement to commit public violence, illegal gathering, possession of explosives and dangerous weapons, obstructing traffic and causing a nuisance on public roads.
#Malema: we didn't spend less than 500k on this case. But it doesn't matter because we were fighting for one of our own! #BonginkosiKhanyile
— EFF Official Account (@EFFSouthAfrica) March 1, 2017
The 26-year-old was last year denied bail on these charges as he had violated his bail conditions related to an earlier case when he was arrested during student protests on February 4.
The court gallery was packed to capacity with Economic Freedom Fighters supporters, students and journalists.
Advocate Dali Mpofu talks to EFF leader Julius Malema. Picture: ANA
Amongst those in court was EFF leader Julius Malema as well as Khanyile's mother Phumzile Khathini. She told reporters that her son must keep fighting and must stand up for what he was born to do.
#Malema: ANC is urinating on the Constitution! They wake up to urinate on the Constitution every day! #BonginkosiKhanyile
— EFF Official Account (@EFFSouthAfrica) March 1, 2017
Advocate Dali Mpofu, acting for the student activist, argued that it didn't make sense to keep Khanyile in custody for six months because he was not a flight risk and the unlawfullnes of his client participating in a gathering had not established.
"The courts can't say the gathering was unlawful when it has not been bridged. The unlawfullness was not established, but the way the courts have interpreted the matter is that he shouldn't attend any gathering at all," he said.
The lower courts had also found that Khanyile was a ringleader, had great influence and could incite violence and cause more protests.
Advocate Dali Mpofu, acting for EFF student protester Bonginkosi Khanyile. Picture / ANA
His legal representative argued that Khanyile was not even part of the Student Representative Council and said it was erroneous to say he had influence over other students.
#Malema: Be in the struggle for genuine reasons! Don't be in #FeesMustFall to spy on other students. #BonginkosiKhanyile
— EFF Official Account (@EFFSouthAfrica) March 1, 2017
Mpofu said the word ringleader was loaded and had negative connotations and was deliberately chosen by the magistrate. Advocate Tembeka Ngcukaitobi said there was no evidence before the magistrate that Khanyile was a ringleader.
"The magistrate misdirected herself in applying and interpreting the law in refusing bail," Ngcukaitobi said.
Ngcukaitobi said Khanyile was supposed to be doing his in-service training but that hadn't happened because he failed to graduate. Chief
Justice Mogoeng Mogoeng asked Mpofu what the factors were that stood out as reasons to keep the applicant in jail. He said he was asking this question with the knowledge that rapists and murderers get bail.
People in the public gallery voiced their agreement with Mogoeng.
Mpofu said there was a conspiracy to keep ##FeesMustFall leaders in jail to make an example out of them, and there was also a call from the president to clamp down on #FeesMustFall protests.
In his closing argument, Mpofu said Khanyile got four disctions in his exams. "We are dealing with someone whose future should be considered instead of him languishing in jail for six months."
Two appeals to have bail granted were refused by the Durban Magistrate’s Court and the Durban High Court. The Supreme Court of Appeal also rejected his bid for freedom.
Khanyile, who is a member of the EFF, claims that by denying him bail, Magistrate Jackie Jonk did not determine whether the protests he had participated in were illegal and that she had placed too much emphasis on the warning conditions related to his earlier case.