“We have today somebody who is in prison who should have never been in prison. It lies on the worship that he does not remain in prison any longer.”
This is how advocate Tembeka Ngcukaitobi ended his argument on Wednesday at the Johannesburg Magistrate’s Court — during the bail application hearing of #FeesMustFall activist Kanya Cekeshe.
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.
In June, the Mail & Guardian reported that Cekeshe had petitioned the high court to appeal his conviction and sentence, saying his former lawyer was “wholly unprepared and inexperienced” and that he did not get a fair trial.
And now, while waiting for the outcome of the petition, Cekeshe’s new legal representative has approached the court in which he was sentenced to apply for bail and leave to appeal the conviction.
On Wednesday, Ngcukaitobi poked holes in the state’s case that eventually saw Cekeshe being convicted and sentenced.
In his argument, Ngcukaitobi said that, in its answering affidavit, the state said Cekeshe pleaded guilty to the charges because the evidence against him was overwhelming, and that it was overwhelming because there was video footage that showed him committing the offence.
He, however, said the state cannot rely on the video footage as it was never part of the docket during the trial.
“There was in fact no video evidence produced during the trial,” he said.
He said there were still images that formed part of the docket, and it was not possible from those images to see the movement of a person. There was also a DVD copy of facial comparison and a photo album as part of the docket, but not video evidence.
“The lordship knows the law on this issue. The state has an obligation when it submits the docket to disclose all the evidence that it will rely on… The state now argues in opposition to bail that essentially we have no prospects of success because there is video evidence.
“The problem they face is that video evidence was not in the docket and it played no role whatsoever in the context of the trial,” said Ngcukaitobi.
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 Cekeshe was made to plead on the basis of facts that were “deliberately” withheld from him.
He added that if there was no video evidence that was a serious problem because it would mean that the state lied under oath.
State prosecutor David Mothibi said Cekeshe’s then legal representation received the video footage. He said the defendants team viewed the footage several times and had the contents of the docket, with which they consulted Cekeshe.
“When the matter had to go on trial then they decided, they got an instruction, that the accused pleaded guilty. The guilty plea was drafted, it is before court, it was signed by the accused himself. It was also signed by the attorney,” said Mothibi.
Advocate Motebang Ramaili, who represented Cekeshe, told the M&G last year that Cekeshe was caught on CCTV footage bending down next to a police car trying to light a match — seemingly to burn the car. But it didn’t catch fire. He also confirmed that video footage was shown in court.
The state is opposing bail because it says it would be premature for the court to decide on the issue before the petition in the high court has been decided.
However, Ngcukaitobi argued that the state got the “law completely wrong” by wanting to wait for the high court to decide on the petition.
“The law is that as soon as the petition is launched, you are entitled to ask for bail pending the outcome of that petition. The only question to examine is whether or not you have met the threshold requirement in order to be entitled to bail pending the outcome of the appeal,” he said, adding that the objection against bail had “zero merit”.
He also added that Cekeshe was not a flight risk when he was given bail after he was sentenced and before his conviction, and he is still not a flight risk if he were to be given bail.
In the middle of his argument, Ngcukaitobi was stopped by magistrate Carstens who indicated that he was not made aware that he was supposed to listen to the bail hearing, and that he was not even provided with documents in relation to the case. He, however, allowed for the hearing to continue. Carstens is also the magistrate that sentenced Cekeshe back in 2017.
Arriving in court, Cekeshe raised his fist halfway to the gallery, which was filled by Economic Freedom Fighters (EFF) and EFF student members, as well as his family. His mother and father were present in court. EFF member of parliament and former fallist Vuyani Pambo was also in court, as well as the party’s national spokesperson Mbuyiseni Ndlozi.
Addressing the party’s supporters after court was adjourned, Ndlozi said Cekeshe was not a criminal and should not be locked up like one.
“Who should be in prison here denied bail? It’s those people who steal money … not the Fees Must Fall generation. Who should be here asking for bail? Are the people who keep stealing your future from you, because comrades, essentially corruption is tampering with your future not their future. So that when you graduate you find the country bankrupt and unable to be even ran in a decent way,” he said.
Ndlozi said Cekeshe was arrested for fighting for a black child to have access to higher education for free.
The #FeesMustFall protest gained popular attention in 2015 at Wits University and spread to other universities across the country. The protest intensified in 2016.
Though Cekeshe was not studying at a university he joined students from Wits in the protest. He was a student at Footprint Media Academy.
In an interview with the M&G last year, Cekeshe’s father, Ntanda, said his son had wanted to study at Wits for a very long time. “So when the #FeesMustFall protest started I think it triggered something in him that led him to join and support the students from Wits in their cause.”
Ntanda said that when Kanya was sentenced to eight years’ imprisonment it was a blow for the family, because they had not anticipated such a harsh sentence. He said his two younger siblings had taken his arrest badly.
Carstens will deliver judgment on Monday.