The Durban Magistrates’ Court has granted bail to a March in March applicant accused, Wandile Nsibande of conduct linked to protests over immigration tensions, rejecting the State’s arguments that his release could pose a risk to public order and undermine the administration of justice.
The magistrate acknowledged that the State had established a prima facie case against Nsibande but said most disputes concerning the evidence would have to be resolved during the trial.
“What I can conclude is that the State does have a prima facie case. In my view, most of the issues are issues that will be ventilated at trial stage. We are not allowed to ventilate them at this stage, but at trial court,” said the Magistrate.
The court also dismissed concerns that the applicant might evade trial or intimidate witnesses, pointing out that the witnesses were law-enforcement officers.
The bail ruling follows unrest in Durban linked to tensions over immigration and a Constitutional Court judgment concerning asylum seekers.
The State alleged that protests between 8 and 11 October involved attempts to prevent foreign nationals from accessing services at the Department of Home Affairs, confrontations with people queuing for services and clashes that contributed to broader public violence.
The prosecution argued that the applicant had played an active role in the protests and that video footage showed him directing people not to enter Home Affairs, confronting foreign nationals and challenging police efforts to manage the crowd.
The State also alleged that he carried a stick during the protests and had made inflammatory remarks about the Constitutional Court and its judges.
Nsibande’s legal representative, Xolani Zuma disputed the State’s interpretation of the footage, arguing that some recordings were unrelated to the events under investigation or had been taken at different times and locations.
He maintained that Nsibande was a member of March in March rather than a leader of the movement, and argued that his actions and statements had to be understood in the context of his concerns about immigration policy and government accountability.
The prosecution acknowledged Nsibande’s right to protest and criticise the government and the judiciary but argued that these rights did not permit intimidation, violence or the obstruction of lawful government services.
“The right to protest is not a licence to intimidate, to threaten, to destroy property, or to defy lawful instructions,” the prosecutor told the court.
The State also opposed bail on the basis of the applicant’s criminal history, his parole status and pending assault allegations involving female complainants.
The prosecutor raised concerns about the circumstances in which a female complainant had reportedly sought to withdraw their complaints, suggesting that the timing raised the possibility of intimidation or interference.
Zuma rejected the suggestion that the withdrawals were evidence of interference and argued that the circumstances surrounding the complaints had been misrepresented.
The prosecutor said the State intended to investigate the circumstances surrounding one of the withdrawals further.
The magistrate noted that the applicant had a previous conviction dating to 2009 but no further convictions since then.
“It’s common cause that he is a convicted offender and that was in 2009. He has no convictions from 2009,” the court said.
The magistrate also indicated that the video footage would not be examined in detail during the bail proceedings, as the disputed evidence would be more appropriately considered at trial. The court referred to footage concerning the applicant being shot by police in the genital area, an issue that would also be relevant at the trial stage.
The defence argued that the applicant’s alleged breach of parole conditions should not, by itself, determine the bail application, while the State maintained that his conduct under parole was relevant to assessing whether he would comply with any bail conditions imposed.
Although the court found that the State had established a prima facie case, it concluded that the risks advanced by the prosecution did not justify keeping the applicant in custody pending trial.
The granting of bail does not amount to a finding on the merits of the criminal charges, which remain to be determined by the trial court.
The matter returns to court on 26 November.
