Kanya Cekeshe’s legal team filed an urgent appeal at the Johannesburg high court on Tuesday against Monday’s judgment by magistrate Theunis Carstens.
For a few seconds, Mnikelo Madala stood in front of a crowd with tears streaming down his face. He could not utter a word. It was just minutes after his nephew, Kanya Cekeshe, had been denied bail and leave to appeal his conviction at the Johannesburg Magistrate’s Court.
Madala stood there with a microphone in his hands. But words were not coming out.
Eventually, between sobs, he said: “There is not a lot to say, save to say that we have taken a body blow. We fight on. We would like to thank you guys for all the support all along and may you long continue not for us but for everyone else who feels wronged by the law of this country.Thank you.”
He was addressing members of the Economic Freedom Fighters (EFF) and EFF Student’s Command on Monday outside the court.
Cekeshe has been in Leeuwkop prison since December 2017, after he was sentenced to five years behind bars for public violence and malicious damage to property. He pleaded guilty to setting a police vehicle alight during a #FeesMustFall protest in 2016.
Last Wednesday, his new legal representation, through advocate Tembeka Ngcukaitobi, made a case before Magistrate Theunis Carstens to grant Cekeshe leave to appeal his conviction and also an appeal for him to be granted bail pending a petition to the high court to appeal his conviction and sentence.
The Mail & Guardian reported in June that Cekeshe had petitioned the high court, saying that his previous legal representation failed to represent him well – and therefore did not get a fair trial.
In his argument, last week, Ngcukaitobi criticised the state for relying on video footage that apparently shows Cekeshe setting the police vehicle alight, but never producing it as evidence in court.
He added that if the video evidence exists, as the state alleges, it was withheld from Cekeshe, and this was “extremely serious” because it means he was made to plead on the basis of facts that were “deliberately” withheld from him. Among other things, he also argued that Cekeshe’s previous legal representation was inexperienced, incompetent and such he did not get a fair trial.
However, delivering his judgment, Carstens said Cekeshe was aware of the video footage. And that at his first appearance in court the state had asked for a postponement to obtain the video footage before starting with the bail application.
“When the disclosure of the police docket was made to the defense, state counsel mentioned that he will give the defense a disc with the video footage. At no stage, up to now, did the defense complain that they are not furnished with a copy of the video footage,” said Carstens.
Carstens further said that Cekeshe’s previous legal representation, in mitigation of sentence, said it was unfortunate that Cekeshe was seen on the video footage.
He said it was unlikely then that the defense had not seen the video footage. “Asked by the court why the applicant pleaded guilty the probation officer stated that he was identified on a video footage. All of the above is indicative that the video footage was disclosed to the defence before the applicant pleaded. The claim that the video footage was not disclose to the defense is devoid of all truth.”
Carstens also said that Ngcukaitobi had raised “opportunistic arguments” in arguing that there were discrepancies between the charge sheet and the admission by the Cekeshe in a statement. Adding that Cekeshe admitted that he damaged and set the police vehicle alight after fetching paraffin and matches [from another student].
“As far as the court is concerned, it is crystal clear that the applicant admitted to all allegations in the charge sheet. There are no discrepancies between the allegations in the charge sheet and admissions made by the application, and none of the admissions are ambiguous… In as far as the admissions made by the applicant are concerned there is no merit in any of the arguments put forward by the defense counsel.”
As Carstens was delivering his judgment, Cekeshe kept his hands clasped together and looking directly at the magistrate. He unclasped once; when he reached for a bottle of water next to him and drank it before clasping his hands again.
Carstens further said that not once did Cekeshe indicated during the trial or during his leave to appeal the sentence that he was not satisfied with his previous legal representation.
His leave to appeal his sentence was denied by the same court last year, in February.
“The applicant is not an immature or unsophisticated or uneducated man. To the contrary, after matriculating he started studying law but subsequently changed to media studies. He had more than enough time during the trial and application for leave to appeal against sentencing to raise any objection to the manner in which his trial was conducted if he had any. The fact that he briefed the same advocate to apply for leave to appeal against sentence indicates he had trust in his competency,” said Carstens, adding that the allegations that Cekeshe did not have a fair trial because of incompetent legal representaiton are unfounded.
In denying Cekeshe bail, Carstens said he had already been denied leave to appeal his sentence and had also been denied leave to appeal against his conviction.
“There is no reasonable prospect that the applicant will avoid imprisonment and is therefore not in the interest of justice to grant him bail. It is not in the interest of justice that a convicted person pursuing a hopeless appeal should be released on bail.”
It was after Carstens said “the application for bail is likewise dismissed”, that Cekeshe, still clasping his hands, shook his hand.
Before he disappeared to the holding cells, he half raised his fist to the gallery, where his family including his mother and father were seated. And also his supporters, mainly members of the EFF, amongst them member of parliament and Fees Must Fall activist Vuyani Pambo.
His mother, Takazi, wept uncontrollably. She was comforted by family members, including Madala — who was also sobbing. Cekeshe’s father, Ntanda, hid his emotions.
Outside the courtroom, some of Cekeshe’s supporters wept and hugged each other through the pain. Many of those who came to attend were in a state of disbelief.
Mcebo Dlamini — another #FeesMustFall activist who is also facing charges of his own — left the court in a hurry after the judgement was handed down.
Addressing the crowd outside court, Ngcukaitobi said he still believed in the judicial process and that Cekeshe’s legal team will be making a high court application. “We remain optimistic that the high court will look at the matter differently. Keep up the spirit.”
Meanwhile, justice and correctional services minister Ronald Lamola tweeted that he had noted the judgment and that: “We’re in the process of urgently assisting him with an application for a presidential pardon or other legally available avenues.”