Comparing Andile Lungisa’s treatment by the criminal justice system to that of Jacob Zuma, his lawyers argued on Wednesday that his political standing had influenced his “shockingly inappropriate” jail sentence for assault.
Advocate Tembeka Ngcukaitobi told the Eastern Cape High Court in Makhanda that the Nelson Mandela Bay ANC councillor should be acquitted of assault with intent to do grievous bodily harm.
He said should the court disagree and the conviction stand, Lungisa should be handed a non-custodial sentence and should not spend a single day behind bars.
Lungisa is appealing against his conviction and two-year jail sentence.
Judge Judith Roberson and acting judge Feziwe Renqe reserved judgment.
Afterwards, a smiling and seemingly confident Lungisa, who sat with the media during court proceedings and not with the small group of ANC supporters in the gallery, declined to comment.
He was convicted by the Port Elizabeth Magistrate’s Court in April 2018 of assaulting DA councillor Rano Kayser by hitting him over the head with a glass water jug during a council brawl in October 2016.
He claimed, at all times, that he had acted in self-defence, although he was found to have tailored his evidence as time went by.
Senior state advocate Nickie Turner said on Wednesday that Lungisa had clearly adapted his version when it emerged that a fellow councillor had recorded the brawl on his cellphone.
Turner said that on the night of the incident, Lungisa made a statement to the police, and it was apparent from that statement that he was not aware at the time that the brawl had been filmed.
“Absent from the statement is any reference to the fact that he hit Kayser over the head with the glass jug, the shattering of which caused the cuts to his fingers.
“Instead, he told the officer untruthfully that he did not know how he sustained the cuts,” Turner said.
“Had he genuinely acted in self-defence, one would reasonably have expected Lungisa to advise the police officer that the attack on him was so extreme that he had to defend himself with a jug.”
She said Lungisa was opportunistic and sought to untruthfully manipulate the situation to his own advantage.
“His actions in hitting Kayser over the head with a glass jug mirrored the simultaneous actions of his party members who were throwing jugs and glasses towards the front [of the council chambers],” Turner said.
She said she had watched the recording over and over again and Lungisa had clearly been the aggressor.
She said he had smashed the glass jug – made even heavier because it was full of water – across Kayser’s temple with such force, he could have been brain-damaged or even killed.
“Lungisa chose to hit him over the head and not another part of his body.”
Turner argued that the context in which the assault had taken place increased Lungisa’s blameworthiness.
He had a responsibility to act appropriately in council and to set an example for members of his political party, as well as the community as a whole, she said.
“If violence is used when a decision goes against your party, it places democracy in a very tenuous position.”
But Ngcukaitobi countered that it was for this very reason that Lungisa had become the proverbial sacrificial lamb and that trial magistrate Mornay Cannon had opted to make an example out of him.
He said the sentence of an effective two years in prison was “shocking, grossly inappropriate and grossly unfair”.
“At best here, Mr Lungisa was entitled to a wholly suspended sentence. It was one strike.”
Ngcukaitobi said Lungisa’s political enemies had abused the justice system to send him to jail when their own hands were far from clean. This could be perceived as his political opponents using the courts to discipline politicians.
“One cannot take the view that he is an ANC politician and must be made an example of,” he said.
“You can’t tell us that Andile Lungisa, like Jacob Zuma, must be taught a lesson. He is a sacrificial lamb.”
He said it was not common practice to send someone to jail for such an offence.
Ngcukaitobi argued – to laughter in court – that Kayser was a fairly large man, while Lungisa, on the other hand, was rather small.
“Anyone in his [Lungisa’s] position could have believed he was under attack.
“This was not the type of crime that was premeditated and deserving of the harshest penalty.
“The magistrate clearly sacrificed Lungisa on the altar of deterrence.” He said immediately after Lungisa’s evidencein-chief, Cannon began questioning him.
“What initially seemed like questions in clarification soon developed into confrontational questioning.
“Needless to say, this must have been unnerving for Lungisa and would be for any accused who puts his trust in the bench to adjudicate impartially.”
Addressing the aspect of sentence, Turner said Ngcukaitobi’s submissions were alarming.
“This alludes to the fact that the magistrate was somehow persuaded to hand down a prison term.
“It is ludicrous,” she said. There were many aggravating circumstances which Cannon had correctly relied on.
“Kayser was humiliated and continued to suffer from memory loss and migraines,” Turner said.