Kanya Cekeshe, believed to be one of the last #FeesMustFall student activists still in prison, applied for leave to appeal his conviction in the Johannesburg Central Magistrate's Court on Wednesday.
His lawyer, advocate Tembeka Ngcukaitobi, drew attention to Cekeshe's problematic legal counsel during the trial as well as the discrepancies between his client's statement and the charges against him.
Cekeshe was convicted of public violence and malicious damage to property when he tried to set a police van alight during the protests.
He received an eight-year sentence and has been in Leeuwkop Correctional Services in Bryanston, Johannesburg, since 2017.
'An extreme case'
In motivating for the leave to appeal on Wednesday, Ngcukaitobi said his client's previous legal representation was highly incompetent.
"This is not an opportunistic point. It is easy for counsel [who are] assuming the case to believe they will handle it more competently than previous counsel.
"But this is an extreme case. It is an extreme example of incompetent lawyering. We have set out in full … 18 instances of incompetent lawyering, the accumulative effect of which Mr Cekeshe simply never had the right to legal representation that is provided for in the Constitution," Ngcukaitobi said.
These instances, he added, included constant interpretations, incoherent rambles, constantly asking for the matter to stand down because they were unprepared as well as lateness.
"At some point, counsel says he is an attorney and the next moment he says he is an advocate… He then gives the advice to plead but he never explains to the accused that the State bares a duty to prove its case beyond a reasonable doubt and he doesn't explain that the accused has no duty to prove his innocence," Ngcukaitobi said.
"What is clear is that there was never advice given to the accused that, 'if you sign this statement you can be sentenced to eight years'."
Ngcukaitobi said Cekeshe's previous lawyer also admitted that he was not a criminal lawyer, dealing mainly with civil law.
"He accepted that he does not know or understand the criminal law process. What is he doing in the criminal court then?"
Both magistrate Carstens, who presided over Cekeshe's case and handed down the sentence, and Ngcukaitobi lamented the large amount of information missing in the case.
This included chunks of the court transcripts that were missing as well as the written judgment.
"Even on the days when the transcription is available, there are big chunks that are just missing where you can see the argument makes no sense because something should have been said but it was missing," Ngcukaitobi said.
Carstens, however, replied that he had not been approached to reconstruct the transcripts.
Ngcukaitobi also argued that there were discrepancies between the charges against Cekeshe and what was in his statement. This, he said, was indicative of a non-existent examination of what exactly happened on the day.
"The judgment noted that in [Cekeshe's] plea explanation statement the accused acknowledges all these allegations … there are portions in those statements that do not match the charges," Ngcukaitobi said.
He gave the example of the burning of the police car.
"What there can be no debate about, is that the State charged him for burning the car with the intention of injuring the people who were inside the car and there can be no debate that the statement expressly says, 'when we noticed there was no one inside the car', etc.…"
Ngcukaitobi also disputed the State's assertion that video footage evidence was shown in court of Cekeshe trying to burn the car, saying the only images provided were blurry.
He questioned the State in this regard and the basis upon which Cekeshe signed the plea while evidence was possibly withheld.
City Press previously reported that after Cekeshe was found guilty in the Johannesburg Regional Court on December 4, 2018, after video footage allegedly showing him throwing something inside the police van before it caught fire surfaced. He faced charges of arson, public violence and malicious damage to state property.
He was sentenced to eight years in Leeuwkop, of which three years were suspended.
Cekeshe's application for leave to appeal his sentence was dismissed at the time, with Carstens saying the sentence was already sufficiently lenient and there were no grounds to grant leave to appeal.
His lawyer at the time, Phado Khumalo, said she would review Carstens' decision, the publication reported.
[T]he evidence against him is not worth an eight-year sentence...
She had argued that Cekeshe was a first-time offender and "an honest young person who was in solidarity with other students".
Khumalo said he was a student attending a private college in Braamfontein and his fees were paid up by his parents.
"Really, the evidence against him is not worth an eight-year sentence," she added, saying that should she be unsuccessful in applying for a review of the magistrate's decision, she would instruct advocate Molebang Ramaii to "escalate the matter by petitioning the High Court".
Several student leaders, who led the protests, were arrested after clashes with the police during the #FeesMustFall protests that took place between 2015 and 2017.
University students across the country had boycotted lectures, staged sit-ins and took part in marches to Parliament and the Union Buildings to protest the rising price of higher education. They also called on the government to make higher education free and accessible to all who qualified.
In December 2017, then-president Jacob Zuma announced that the government would subsidise free higher education for poor and working class students through the National Student Financial Aid Scheme (NSFAS).
In August this year, Justice Minister Ronald Lamola said he was still waiting on a collated list of students locked up for their roles in the protests.
This after an agreement had been reached between his predecessor, Michael Masutha, the director-general of the justice and constitutional development department and student leaders in the #FeesMustFall protests to have the list submitted to the department.
Despite this, Lamola said the offer to assist the students "still stands" and "the hands of the department are tied" should they not receive any applications for either an expungement or presidential pardon.
News24 previously reported that Masutha said his department would assist anybody still facing charges with legal aid, which included being able to appoint lawyers from private firms at no cost to the accused.
Judgment in Cekeshe's matter was reserved.