The Constitutional Court must decide on granting awaiting trial Fees Must Fall activist Bonginkosi Khanyile bail, his lawyers said on Wednesday.

"The correct outcome is the court should itself grant bail," advocate Thembeka Ngcukaitobi told the court.

Ngcukaitobi and advocate Dali Mpofu were arguing before a full bench of justices why it was in the interests of justice for the Durban University of Technology student to be released.

Khanyile is challenging the decisions by two lower courts to deny him bail.

The court gallery was packed to capacity with journalists, Economic Freedom Fighters (EFF) leader Julius Malema, party members, and students.

Ngcukaitobi said the Durban magistrate who denied Khanyile bail relied solely on claims that he would endanger society. She had placed undue emphasis on his alleged past conduct without properly deducing the facts, he said.

Khanyile was arrested with 28 other people on February 4, 2016, on various charges related to the countrywide fees protests. The next day he was granted bail, with conditions, but was arrested again on September 27 during further protests.

He faces charges of convening or gathering without notice, convening or attending an illegal gathering or demonstration, interference with police duties in an illegal gathering, and trespassing.

Mpofu said Khanyile could not be said to have breached his bail conditions merely by attending a gathering. Nobody was prosecuted for the allegedly unlawful gathering, he said.

"Authorities are seeking to make an example of the applicant."

He said that according to the prosecution team, President Jacob Zuma had instructed authorities to clamp down on Fees Must Fall protests, and that they wanted to make an example of Khanyile.

Chief Justice Mogoeng Mogoeng said Mpofu's statement was dangerous because it meant the magistrates and judges were part of these authorities.

Night vigils, solidarity meetings and protest marches had been held to call for his release.

Mpofu said Khanyile passed his exams with four distinctions and they were dealing with someone whose future should be considered.

Two bail applications to the Durban Magistrate's Court were refused, as was an appeal to the High Court in Pietermaritzburg. He then applied for special leave to appeal to the Supreme Court of Appeal.

The case was set to be heard on January 27. However, on January 17 the court issued an order dismissing the application for special leave to appeal.