Fees Must Fall activist denied leave to appeal and bail
Fees Must Fall activist Kanya Cekeshe's application for leave to appeal his conviction and to be granted bail has been dismissed in the Johannesburg Magistrate's Court, says a News24 report.
Magistrate Thenis Carstens said there was no merit to the argument put forward by Cekeshe and his defence.
‘As far as the court is concerned, it is crystal clear that the applicant admitted all the relevant allegations in the charge sheet. It is not in the interest of justice to grant him bail.’
Cekeshe is the last Fees Must Fall activist to still be in prison. He applied for leave to appeal his conviction and was granted bail after his conviction in 2017. Cekeshe was convicted of public violence and malicious damage to property after he tried to set a police van alight during the protests. He received an eight-year sentence and has been in the Leeuwkop Correctional Services in Bryanston.
In June, according to a TimesLIVE report, Cekeshe petitioned the Gauteng High Court (Johannesburg) to appeal his conviction and sentence. He had argued that he did not get a fair trial. That matter is still to be heard.
One of the reasons for claiming an unfair trial was that his previous advocate had not represented him well.
On the claim of alleged incompetence by his previous legal counsel, Carstens said the general rule was that a litigant was bound by what was done by his legal representatives. Carstens said if Cekeshe had been dissatisfied with the quality of legal advice he had received, he should have raised objections against the advocate after his sentence in December 2017.
Carstens said this did not happen as he used the same counsel in his failed application against sentence in 2018. Cekeshe's counsel, Tembeka Ngcukaitobi, indicated he had been instructed to take Carstens' judgment to the High Court on appeal.
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. According to a Mail & Guardian report, 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.
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 defence, state counsel mentioned that he will give the defence a disc with the video footage. At no stage, up to now, did the defence 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 defence 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 defence is devoid of all truth,’ said the magistrate.
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, notes the M&G report.
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 defence counsel.’
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