Kanya Cekeshe’s legal team filed an urgent appeal at the Johannesburg high court on Tuesday against Monday’s judgment by magistrate Theunis Carstens — which denied him bail and leave to appeal his conviction.
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 the founding affidavit, filed on Tuesday, Cekeshe’s attorney, Johannes Lodewikus Steyl, said the appeal is “against the wrong decision” by Carstens — where he denied Cekeshe bail pending the appeal. In June Cekeshe, the only #FeesMustFall activist still behind bars, petitioned the high court to appeal his conviction and sentence, saying his former lawyer was so “wholly unprepared and inexperienced” that he did not get a fair trial.
But on Monday, in delivering his judgment, Carstens dismissed as unfounded allegations that Cekeshe did not have a fair trial because of the alleged incompetence of his previous legal representation.
He said Cekeshe never raised any objection against his legal representation during the trial or his application for leave to appeal his sentence.
In the papers filed on Tuesday, Steyl said that, in dismissing the argument on account that Cekeshe did not complain about the quality of the representation during trial, Carstens overlooked the essence of the inquiry which is the “quality of representation” and whether or not it was inadequate that the trial was unfair.
“With respect, when the enquiry is undertaken, it is clear that the accused received poor representation to the extent that his right to a fair trial were impinged.”
In addressing the poor legal representation, Steyl said that — among other things — Cekeshe’s previous legal representation gave him advice to plead guilty without explaining the duty of the state to prove its case beyond any reasonable doubt. And that he did not explain to Cekeshe that he had no duty to prove his innocence.
He also said that, when the previous legal representation incorrectly advised Cekeshe to plead guilty, he did not canvas a plea and sentence agreement for the state.
He also said that in the sentencing proceedings the legal representation failed to call Cekeshe to lead evidence but relied on a statement that was made by the probation officer, who had apparently conducted an interview with Cekeshe.
Steyl, said that, with all of this, Carstens did not consider whether there were instances of incompetence in the legal representation and its impact on a fair trial for Cekeshe.
On Monday Carstens also said that advocate Tembeka Ngcukaitobi — who is part of Cekeshe’s legal team — 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].
He said it was “crystal clear” that Cekeshe had admitted to all allegations and that none of the admissions are ambiguous as the defense had argued.
However, Steyl, argues that Carstens erred by not questioning Cekeshe in order to establish that he admitted to all the elements of the offence as recorded in his guilt plea statement.
Carstens said on Monday whether or not Cekeshe had been asked to give evidence the same outcome would have been achieved because he had pleaded guilty.
“I submit that the failure to question the accused as required by the section constitutes an unfair process, which is a violation of the accused’s right to a fair trial. It is no answer to state that the accused was in fact guilty. To make that statement negates the very rights that every accused person is entitled to as a matter of fact. It does not mean that an accused person can simply be denied of their procedural rights simply because one believes they are in fact guilty. The reason there are procedural safeguards is precisely to ensure that innocent people are not incorrectly convicted. One cannot answer this by simply asserting that the correct procedure would have made no difference.”
Steyl also argued that Carstens was unfair, “injudiciously and without any factual basis” when he described Ngcukaitobi’s argument as “opportunistic”
“In doing so, he acted inconsistently with what is expected of a judicial officer, of which the central tenet is impartiality and not to cloud one’s personal likes and dislikes with the subject of adjudication.”
He also said that the sentence of eight years, with five years of direct imprisonment is “shockingly inappropriate”.
“It is therefore submitted that there is a realistic prospect that even if a custodial sentence is imposed it will certainly not be in excess of 12 months. Bearing in mind that the accused has already been in prison for 22 months. It is grossly unfair that he should continue to be in prison.”
He said it was in the interest of justice that Cekeshe be released on bail and has no motivation to escape.
Meanwhile, Justice and Correctional Minister Ronald Lamola has come under fire for his tweet on Monday, saying that his department was working on an application for a presidential pardon for Cekeshe.
In a statement, the Democratic Alliance said Cekeshe was convicted of serious charges and must face the consequences.
“For the minister to enter the arena, making a mockery of the hard work of the NPA [National Prosecuting Authority] in pursuing the case and securing a conviction, and showing contempt for the judiciary by suggesting that their work should simply be undone by the stroke of a presidential pen is something that should concern us all,” reads the statement.