ANALYSIS
That the extended detention of Fees Must Fall activist and Durban University of Technology student Bonginkosi Khanyile was unfair is almost no longer in dispute, but the notion took on a particularly weighted tone when the Chief Justice of the highest court in the land pointed it out.
"People who are accused of rape get bail. People who are accused of murder get bail. What is it about this one? We are dealing with someone's future that should be secured, not someone who should be languishing in jail," Mogoeng Mogoeng said on Wednesday during Khanyile's application to determine why he did not receive bail.
Mogoeng also asked why Khanyile had been singled out instead of hundreds of other protesters.
And in that moment, the glaring hypocrisy of Khanyile's continued detention, for 155 days, before he was released on a measly R250 on Wednesday, became abundantly clear.
Khanyile was arrested on September 27 last year. Several courts simply would not release him on bail, until the country's apex court ruled otherwise. His charges include participating in an illegal gathering, inciting violence and public violence. This allegedly occurred during a Fees Must Fall protest.
Khanyile's arrest followed the violation of bail conditions granted when he was arrested in February last year. He subsequently applied for and was denied bail three times.
The Right2Know campaign activists' guide to protests says a gathering becomes illegal if it has been prohibited, but that it should only be prohibited in exceptional circumstances.
Samwu members who went on a vandalism spree in 2011, damaging municipal property and participating in an unlawful assembly, were sentenced to six months in jail or a R2,000 fine. Had Khanyisile been convicted of this, for arguably less violent acts, he would have served a large chunk of his sentence by the time he was released on bail.
Zachie Achmat and other members of the Treatment Action campaign were found guilty of participating in an illegal demonstration in February 2015. They had chained themselves to the railings outside Cape Town Mayor Patricia De Lille's offices, protesting the poor provision of sanitation in informal settlements.
Their punishment? A caution. While their actions were less violent than what Khanyile is accused of, strictly speaking, the illegality of their demonstrations, it could be argued, is the same.
There are currently 44,000 prisoners awaiting trial out of a total of 153,000 inmates. Many have been waiting for years to appear before a judge. This raises questions about whether Khanyile falls part of this statistic, having fallen victim to the system, or whether he was maliciously singled out.
While the hypocrisy may have done unnoticed by state prosecutors, who could only muster general allegations that Khanyile clearly intended to hurt the police, it did not go unnoticed elsewhere.