Johannesburg – The Constitutional Court on Wednesday, released Durban University of Technology student Bonginkosi Khanyile, accused of #FeesMustFall violence, on bail of R250.
Khanyile was arrested during running battles with police on September 27, and was charged with incitement to commit public violence, illegal gathering, possession of explosives and dangerous weapons, obstructing traffic, and causing a nuisance on public roads.
The 26-year-old was denied bail last year after he violated his bail conditions related to an earlier case when he was arrested during student protests in February last year.
Bonginkosi Khanyile's mother: on the verge of giving up, I would see you surrounding me and I'd gain strength! #BonginkosiKhanyile We pic.twitter.com/oNjJMDcrvU
— EFF Official Account (@EFFSouthAfrica) March 1, 2017
Economic Freedom Fighters supporters broke out in song, blew whistles and clapped hands after realising that Khanyile would be going home.
EFF leader Julius Malema was sitting in the front of court, while Khanyile's mother Phumzile Khathini sat in the middle.
"Bonginkosi is our member [of] the student commander and the EFF itself, and he was fighting a just cause and therefore he was wrongfully arrested, he was not fighting to be put in jail, he was fighting for free education and was given an extreme of what he asked for," Malema told reporters.
"As the EFF we don't dump our own, we don't send them to the battle field and turn against them like others do."
#Malema: while we fight for land, you must fight for free education! They can't take land from us and deny us education! #BonginkosiKhanyile
— EFF Official Account (@EFFSouthAfrica) March 1, 2017
Earlier, State prosecutor Andy Bester tried to argue that Khanyile would endanger the safety of the public and undermine peace and security if he was released in bail. He said the magistrate found the likelihood that he might incite violence and considered Khanyile as an influential leader.
Before a brief adjournment, Justice Khanyisile Madlanga asked Bester why Khanyile was still kept in prison if the situation had changed.
#Malema: what we promised on 8 Jan we've done! We've freed Bonginkosi because we dn't make promises we make commitments! #BonginkosiKhanyile
— EFF Official Account (@EFFSouthAfrica) March 1, 2017
The State agreed that Khanyile should be released on bail on two conditions – he is not allowed to intimidate staff or personnel and may not obstruct police from their duties.
Earlier, Advocate Dali Mpofu said that it did not make sense to keep Khanyile in custody for over five months because he was not a flight risk and the unlawfulness of him participating in a gathering was not established.
"The courts can't say the gathering was unlawful when it has not been bridged. The unlawfulness 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 argued that Khanyile was a ringleader and had a great influence to incite violence and cause more protests. His legal representative argued that Khanyile is not even part of the Student Representative Council and it was erroneous to say he had influence over other students. Mpofu said the word ringleader is loaded and has negative connotations and it was deliberately chosen by the magistrate.
Advocate Tembeka Ngcukaitobi had also argued that Khanyile is not even part of the Student Representative Council and it was erroneous to say he had influence over other students.
"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 has not happened because he failed to graduate after being kept in prison.
In his closing arguments, Mpofu said Khanyile got four distinctions in all his exams.
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 bail bid.