On 1 March 2017, the Constitutional Court in Braamfontein, Johannesburg heard an urgent application for leave to appeal against an order of the Supreme Court of Appeal. This application arose from an arrest related to the Fees Must Fall movement.
Bonginkosi Khanyile, a Durban University of Techology (DUT) student, was first arrested on 4 February 2016 with 28 others. He was charged with “convening or gathering without a notice, convening or attending an illegal gathering or demonstration, interference with police duties in an illegal gathering and trespassing”. Khanyile was released on warning on certain conditions the next day. He was arrested again following a protest that took place on 27 September 2016. He applied for bail in the Magistrate’s Court in Durban and was refused bail.
On 6 January 2017, the Supreme Court of Appeal issued directions which enquired if the parties had given serious consideration to settling the matter without the Court’s intervention having regard to the seemingly common cause facts that the applicant is not a flight risk, that the investigation has been completed and the matter is ready for trial. However, on 17 January 2017, the Supreme Court of Appeal issued an order dismissing the application for special leave to appeal.
In the application to the Constitutional Court, Advocate Dali Mpofu (representing Khanyile) argued for the application of bail on the grounds that there are four constitutional issues and arguable points of law of general public importance that warrant the attention of the ConCourt.
After the State’s advocate Andy Bester failed to answer questions as to why Khanyile was still being kept in jail, Chief Justice Moegeng Moegeng called for a 10-minute adjournment. When proceedings resumed, the State announced that an agreement had been reached and that Khanyile will be released on bail of R250, after spending six months in jail, with conditions that ordered him not to intimidate staff, obstruct police or any personnel.
