Why Andile Lungisa lost his appeal

ANC councillor Andile Lungisa talked his way into prison with his long-winded explanations and failure to show remorse, and now an appeal court has shot down his bid at an acquittal.

Lungisa, 40, was quick to react to Tuesday’s judgment.

Taking a swipe at the Eastern Cape High Court bench in Makhanda afterwards, he described the ruling as a “hometown decision” and said he would take the matter on appeal to the Supreme Court of Appeal (SCA).

Lungisa has seven days in which to apply to the SCA for an extension of his bail pending his appeal, or reapply to the Eastern Cape High Court in Makhanda for bail.

Judge Judith Roberson, with acting judge Yolande Renqe agreeing, had earlier dismissed the Nelson Mandela Bay councillor’s appeal against his conviction for assault with intent to do grievous bodily harm and two-year prison sentence.

While Roberson was quick to admit that the effective two years’ imprisonment was “robust”, she said that while she might have imposed a lesser sentence, “the difference between what I would have imposed and the actual sentence imposed is not so appreciable that it is a ground for interference”.

Lungisa was convicted in the Port Elizabeth Magistrate’s Court after he smashed a glass jug over the head of DA councillor Rano Kayser during a council brawl in October 2016.

The incident was captured on video.

The trial court had found – with the appeal court agreeing on Tuesday – that an unarmed Kayser had not threatened or assaulted Lungisa and that Lungisa’s defence of fending for his life could therefore not stand. Lungisa said he had read through the judgment and had found many errors and inconsistencies.

“It’s fine. I am disappointed but we are fine.

“I will appeal to Bloemfontein now and I am confident they will overturn the decision,” he said.

Lungisa’s conduct on the stand during trial proceedings played a pivotal role in the appeal court’s decision to dismiss his appeal.

“In my view, Lungisa was simply not a credible witness,” Roberson said, calling the quality of his evidence poor.

“He adjusted his version as he went along.

“He was a very evasive witness. His version grew and changed in the telling and was difficult to follow.

“His evidence of the alleged attack on him chopped and changed.”

Roberson said when the cellphone recording of the brawl failed to corroborate Lungisa’s version of events, he would change the details or sequence to fit his story.

“The manner in which Lungisa struck Kayser on his head, as shown in the video, is not consistent with an attempt to throw water on him.

“Lungisa raised the jug in the air and brought it down on Kayser’s temple.

“He didn’t give a persuasive reason why he hit Kayser very hard with the jug when his intention was to throw water at him.”

She said Lungisa’s version in court differed so much from the version he gave to police on the night of the incident that one might think he was describing two different events.

“Nobody dived at him, trying to take him down.

“He did not jump over anyone. Kayser did not try to hit him with a fist.

“He was not assaulted many times on the back as he tried to run away.

“His version of being attacked before he hit Kayser was completely discredited.”

Turning to the sentence, Roberson said Lungisa was a democratically elected councillor who represented the community, which was entitled to expect a certain standard of conduct from him.

“Trust is betrayed when a councillor exhibits behaviour, especially criminal behaviour, contrary to the purpose for which he was elected.

“I don’t think the [trial] magistrate saw the community as a vengeful mass uninterested in the moral and social recuperation of one of its members.

“His focus was on the relationship between Lungisa and the community he serves.

“I don’t think this is a misdirection.

“A breach-of-trust relationship is rightly taken into account in the sentencing process.”

Roberson also disagreed with submissions by Lungisa’s lawyers that he should have been treated by the court as an ordinary person.

“In my view, it was appropriate to have regard to the office of the appellant and the fact that he was carrying out his official duties when the assault occurred.

“Nor do I think that the chaos which had erupted should reduce his moral blameworthiness.

“If there was chaos, it was for him as a leader to set an example to the councillors who fell under his leadership.”

Roberson said the assault was a violent crime.

Kayser was struck so hard on a vital and vulnerable part of his body that the glass jug shattered.

It was further clear that Lungisa did not accept responsibility for his actions.

Lungisa tweeted later: “I have just received ‘the home town decision by Makhanda High Court’ will take the matter to SCA.”

Lungisa has a month in which to lodge his notice of appeal with the registrar of the court.