#FeesMustFall activist Kanya Cekeshe, whose application to have his sentence reviewed is currently being petitioned in the High Court, will most likely spend his third Christmas behind bars in Leeuwkop Correctional Centre in Johannesburg for malicious damage to property.
Cekeshe was sentenced to five years in prison for public violence and malicious damage to property for setting a police van on fire during a #FeesMustFall protest during which students were demanding free higher education and the decolonisation of the curriculum.
He was hospitalised recently after suffering a mental breakdown and is due to be considered for parole in February next year.
While his defence advocate, Tembeka Ngcukaitobi, may argue that he should be granted bail due to his mental state apparently deteriorating, former public protector and Stellenbosch University chair of social justice advocate Thuli Madonsela has said Cekeshe’s sentence was too harsh considering the context.
Speaking on 702, she said context was one of the many factors to be considered, as the #FeesMustFall movement was not a normal circumstance.
“There had been apparent provocative measures” during the protest, which could have led to flared tempers from both ends. Opposing any form of violence, she said she supported the release of Cekeshe and much consideration in dispensing justice had to be applied as its intent was to restore normality and order to society.
“The sentence was too harsh. The case that Kanya Cekeshe was not a Wits student shouldn’t matter. The #FeesMustFall movement was a student movement, it was not specific to a particular university.
“What I would have wanted the court to do is to approach the matter differently.
“What we [are] asking for is fairness, law, and justice.”
Criminal law expert Professor James Grant weighed in on the discussion and said it was always a challenge to provide legal advice in the abstract, as everything depended on the presiding officer’s interpretation of the law.
Conceding that there was a possibility that similar cases could have had a different outcome, Grant said if Ngcukaitobi could show that Cekeshe didn’t understand what was going on, then they would have a good chance to have the decision set aside.
“Is there a possibility of class and race still influencing the decision of our courts? Absolutely. I think you would be insane to try and deny that.”
Cekeshe was sentenced to eight years in prison, with three years suspended, and Ngcukaitobi has argued that his client did not get a fair trial. Cekeshe was sentenced in 2017.