The Supreme Court of Appeal has made a U-turn on its decision to hear a bail appeal by #FeesMustFall protester Bonginkosi Khanyile. The student’s lawyers say his case is being used as an example after a mandate from President Jacob Zuma to clamp down on student protests.
In October, there was a public outcry when it emerged that national director of public prosecutions Shaun Abrahams had met members of the security cluster at Luthuli House, the ANC’s headquarters in Johannesburg. Abrahams said the meeting was about the #FeesMustFall protests.
Khanyile is the only #FeesMustFall activist still in prison after the protests that engulfed tertiary institutions last year. He has been in the Westville Prison in Durban for almost four months.
Arrested in September at the Durban University of Technology, he was charged with eight offences, including public violence, gathering illegally and inciting violence.
Khanyile’s bail has been denied three times – twice in the Durban magistrate’s court and once in the high court. This week an urgent approach to the appeal court also failed, with the court saying he had failed to show special circumstances warranting being granted special leave to appeal.
The appeal court’s order was a U-turn. The court had previously set down the appeal for a hearing on January 27 and earlier this week sent a letter to the prosecution asking whether the parties had “given serious consideration to settling the matter”.
In the letter, the court said that the “common cause facts” of the case were that Khanyile was not a flight risk and that the matter was ready for trial.
After the KwaZulu-Natal director of public prosecutions insisted on the appeal proceeding, the court then changed its mind and dismissed the appeal outright. The order was issued on Tuesday by acting President Mandisa Maya and Justice Christiaan van der Merwe.
Khanyile’s lawyer, Nhlakanipho Nxumalo, said: “It was a bit of a remarkable event when I was phoned on Tuesday to say that the directive is going to be changed, only to find out that it’s being withdrawn in its entirety.”
He said the length of Khanyile’s imprisonment was grounds for special circumstances.
Nxumalo said it was during the high court hearing that the state prosecutor suggested the court should deny Khanyile bail because Zuma had requested stronger action.
“When the matter was being argued in the Durban high court, the prosecutor stood up and said that even the president of this country is aware of this matter and he asked that the institutions of the state clamp down on these student protests.
“That’s when our counsel stood up and said that this court doesn’t take instructions from the president,” he continued.
#FeesMustFall protester Mcebo Dlamini, a student leader at the University of Witwatersrand, was also denied bail when he appeared in the Palm Ridge magistrate’s court in Johannesburg last year.
But this was overturned on appeal by the Johannesburg high court, with Judge Ratha Mokgoatlheng ordering that Dlamini must be granted bail and that the magistrate’s court decision infringed on his constitutional right to a fair bail hearing.
Although similarities exist between the two cases, there is an important difference: the state has argued that Khanyile’s bail must be denied in the interests of justice because he had violated earlier bail conditions.
Khanyile had been arrested once before at a student protest in February 2016 because he had participated in an illegal gathering and was out on bail. It was a condition of his bail that he did not participate in any such gatherings.
His defence team said the court had not inquired to confirm whether the September gathering had been illegal. Just because there was no permission given for a gathering did not mean it was illegal, his defence team said in court papers.
But Jean Redpath, a researcher for the Civil Society Prison Reform Initiative, said it is significant that Khanyile was found to have violated his bail conditions, which is grounds for a court to deny him bail. “Denying him bail certainly seems in line with the law as it currently stands,” Redpath said.
“Furthermore, compared to the time trends we know of regarding others denied bail, he has not been in custody for particularly long yet. Prosecution policy requires the prosecution to review cases where people have been denied bail every three months,” she added.
On Thursday, his pre-trial conference was postponed until February 28. He will then finally know when his trial date is.
His friends say he is doing the best he can. “He is coping. Bonginkosi Khanyile is a very strong character as a person, but we know that Westville is not any place for a student,” said his friend, Gazuzu Nduli.
Khanyile, a member of the Economic Freedom Fighters Students’ Command and a father of three, spent Christmas and his birthday in jail.
Over the holiday season students continued to agitate for his freedom under the campaign #FreeBonginkosiKhanyile.
“There were students who stayed and supported Khanyile as his case continued to be heard through the December break. They celebrated his birthday at the jail on December 29,” said Nduli.