Moments after the magistrate delivered his ruling and exited court 12, Khanyile screamed: “We are happy, we are jubilant!”

The 31-year-old is facing charges of inciting public violence and contravening disaster management regulations, including not wearing a facemask in public, relating to the devastating looting and riots that left 359 people dead, the majority in KwaZulu-Natal, and cost the national fiscus an estimated R50-billion. 

The unrest started with the jailing of former president Jacob Zuma on 8 July for being in contempt of court. On Sunday, it was announced that Zuma had been granted medical parole. 

While addressing journalists from the dock following the ruling, Khanyile had his facemask lowered, leaving his mouth and nose exposed. The father of four quickly turned his attention to minority races while his young supporters chanted, grinned and swayed behind him in the court gallery. 

“We told them, that in South Africa there is no room for racists. Racist Indians, racist white people, they are not going to eat today. They are frustrated. We are going out. President Zuma is out. This is our country. They cannot oppress our parents, they cannot oppress us… Africa belongs to Africans, and nobody can ever take that away,” Khanyile shouted, waving his finger in the air and tugging his facemask well below his chin.  (See video below)

He then made his way down the dock stairs to the holding cells, his supporters bending over the barrier for fist pumps. Khanyile’s mother, who had been calmly sitting in the gallery throughout proceedings, did not manage to get through his supporters to greet her son. 

Minutes later, the crowd made its way out of the courtroom and snaked through the court building, still laughing and chanting loudly. They were mostly met with eye rolls and looks of frustration from those they strode past. 

Khanyile is currently a law student at the University of the Witwatersrand, having obtained various other qualifications prior. 

Tuesday’s commotion contrasted with the soberly handed down ruling by magistrate Hlatshwayo, who ran through the arguments made by the state and defence in their bids to respectively oppose and grant bail.  

Advocate Yuri Gangai, a veteran state prosecutor, had relied on video evidence, among others, to argue against bail — one of the five clips utilised showing Khanyile allegedly inciting a Durban crowd during the unrest. 

In that clip, Khanyile can be seen and heard saying, in isiZulu: “Those who are continuing to burn the country must continue burning it until Bab’ Msholosi is released. Those who continue to block the roads must continue to block the roads until Bab’Msholosi is released. Those who are fighting must continue fighting until Msholosi is released. Amandla! Viva Jacob Zuma, Viva! Thank you very much, I love you all!”

Addressing this and other evidence, Hlatshwayo said: “My considered view is that the accused probably committed the offence, but that is a matter for trial court.” 

Khanyile did not post that clip on his Twitter account, which remained relatively passive during the unrest. Instead, it was captured by an onlooker and posted from other social media accounts. 

Khanyile committed the alleged incitement while on suspension. In September 2016, he was arrested during running battles between police and Durban University of Technology students that took place during the height of the Fees Must Fall riots.

In August 2018, he pleaded guilty to public violence relating to those riots, and to possession of a dangerous weapon — a slingshot — and two counts of failure to comply with police orders. 

He was initially charged with incitement to commit public violence, illegal gathering, possession of dangerous weapons (a slingshot), obstructing traffic, causing a nuisance on public roads and possession of explosives. 

In January 2019, Khanyile was sentenced to three years in prison, suspended for five years, or to payment of a fine of R5,000. 

He ended up being placed under house arrest and was allowed out in January this year while still under suspension.  

Continuing with his ruling on Tuesday, Hlatshwayo said that it was “untrue” that the accused was being prosecuted because of his support for Zuma, something Khanyile, his supporters, and supporters of other alleged instigators have repeatedly raised.  

“It is not an offence to support Mr Zuma, or any other person for that matter. It is however an offence to incite people to do something wrong in the name of a particular person,” said the magistrate.

He said that court decisions were not influenced by political pressure, something else Khanyile and his supporters have alleged. “The courts are independent,” said Hlatshwayo. 

Concluding, the magistrate said that after looking at the totality of the evidence, he was of the opinion that the emphasis in granting or opposing bail fell on the interests of justice. 

The interests of justice catered for the accused and society, and the question that needed to be answered was whether there was conflict between the two. 

“Before one can answer that, it is imperative to identify the content of the two interests. The interests of justice in respect of an accused person demands that he or she… be able to prepare a defence while waiting for the case to be finalised through the process. 

“The interest of justice in respect of society is that a person who is guilty of committing an offence should be punished after he has been found guilty. That is the content of the two interests. 

“This brings me to the conclusion that there is no conflict between the two interests. It is, therefore, my considered opinion and view that the demands of interests of justice of society only needs an assurance or guarantee that an accused person will stand his trial and will not interfere with witnesses [as demanded by the appropriate laws].” 

Any potential risks could be addressed by imposing bail conditions, said Hlatshwayo.  

“It is my considered opinion that bail should be granted. Bail is granted in the amount of R5,000.” 

At a prior sitting, Khanyile had told the court that he was able to pay R500 bail. He is currently an intern at Cogta where he earns a stipend of R5,000 per month. Although he is studying and Wits and lives in a student residence in Johannesburg, he has a home in Umlazi. 

Khanyile was ordered to report to Hillbrow police station on Mondays and Fridays between 6am and 6pm, if he is at the Wits campus. Should he be in Durban, he has to report to Durban Central police station between the same hours. 

“A further condition is that he has to suspend and [is] not to use his Twitter account for the duration of this matter,” said Hlatshwayo. 

“The accused is warned that should he breach any of these conditions, the state has the right to bring an application to have his bail cancelled, and that he will be kept in prison….”

The matter was postponed to 23 September for transfer to regional court. DM