Shackled Lungisa makes bid for bail

Andile lungisa arriving at the Port Elizabeth Magistrate's Court before sentencing earlier this month.
Andile lungisa arriving at the Port Elizabeth Magistrate's Court before sentencing earlier this month.
Image: Eugene Coetzee

Ankles in shackles, jailed ANC councillor Andile Lungisa launched a desperate bid for freedom on Thursday, with his new high-profile legal team claiming that the political heavyweight had been sacrificed at the altar of deterrence.

Lungisa, 40, who appeared briefly in the Port Elizabeth Magistrate’s Court, will ask magistrate Mornay Cannon today to release him on bail of R10 000 pending a petition for leave to appeal to the Judge President of the Grahamstown High Court.

A busload of ANC supporters were dropped at the court to support Lungisa, with the likes of top provincial ANC official Mlibo Qoboshiyane and party stalwart Mike Xego also lending support.

Dressed smartly in a blue suit, Lungisa smiled at family members in the gallery as he entered the dock, his ankles shackled, just 16 days into his two-year sentence for assault to do grievous bodily harm.

Lungisa smashed a glass water jug over the head of DA councillor Rano Kayser during a heated Nelson Mandela Bay council meeting in October 2016. In postponing the bail application to today, Cannon said he had seen the court papers only during the course of yesterday.

Senior prosecutor Clive Killian will oppose the application for bail, while Lungisa has now appointed top criminal defence attorney Alwyn Griebenow and Advocate Alfonso Hattingh to represent him.

Lungisa said should Cannon opt to release him on bail and his appeal bid – on both conviction and sentence – be unsuccessful, he would hand himself over within seven days to serve out the rest of his sentence. In an affidavit to the Grahamstown High Court, where he is seeking leave to appeal against both his conviction and sentence, he said: “I respectfully submit that the correctness of the conviction and the suitability of the sentence are arguable and that there are reasonable prospects of success.”

Lungisa said evidence from state witnesses, that he had approached the scuffle already armed with the jug, were contradictory.

He said Cannon’s findings that these contradictions were immaterial – and that it did not matter where he got the jug from – was a misdirection.

“The court should have dealt with these contradictions because of my version – that I took up the jug only at the stage that I was grabbed by [DA councillor Johnny] Arends.

The brawl – captured on video by DA PR councillor Renaldo Gouws - broke out during a heated council meeting on October 26, 2016.

“My evidence was that I reacted to what, in my mind, was an attack on me.
“That was my genuine belief and I reacted in defending myself.”

Lungisa said he had been advised that even if his actions were seen as unlawful and not justified, the magistrate should have dealt with his subjective belief, in which event the principle of punitive self-defence would come into play.

“I am advised it can be argued that I lacked intent in a legal sense and that, at most, it can be said that I did not act like a reasonable person, hence that I was negligent.”

He said negligence was insufficient for a conviction on a charge where intent was a requirement.

Lungisa said the video footage, recorded by DA councillor Renaldo Gouws, was unreliable in that it did not cover a full sequence of events.

“Gouws, in fact, testified he on occasion stopped recording [during the brawl] because it attracted the attention of the ANC councillors.”

Lungisa said the sentence was “shocking” and “disproportionate” to the circumstances.

“I am advised that the magistrate has gone beyond what is regarded as a just sentence.

“[He] imposed a sentence to satisfy the community and the complainant.

“I was sacrificed on the altar of deterrence.”

He said insufficient weight was attached to his personal circumstances, “in that I was a first offender, a useful member of society, generating a monthly income and caring financially for a large family”.