LUNGISA IN FIGHT TO STAY FREE

ANC’s heavyweight NMB councillor asks high court to set aside assault result

Nelson Mandela Bay councillor Andile Lungisa, who was last year convicted of assault with intent to cause grievous bodily harm, should not have to spend a single day in jail, his lawyer, advocate Tembeka Ngcukaitobi, says.

Lungisa was fighting for both his freedom and his political future in the Grahamstown high court on Wednesday where he appealed his conviction and his effective twoyear prison sentence. The court was packed with supporters of the ANC heavyweight.

He was convicted of assault GBH after smashing a glass water jug on the head of DA councillor Rano Kayser during a heated council meeting in October 2016. Kayser was seriously injured. Port Elizabeth magistrate Morne Cannon sentenced Lungisa to three years’ imprisonment, with one year conditionally suspended.

Ngcukaitobi on Wednesday charged in court that Lungisa’s “political enemies” had effectively used the justice system to get him imprisoned when their own hands in the whole saga were far from clean.

“To single him out and sentence him to prison for three years is a shocking penalty.”

He said his sentence should be wholly suspended.

Ngcukaitobi argued that the magistrate had failed to even deal with the issue of putative private defence despite Lungisa making it clear he had been under the impression that he was under attack when he hit Kayser over the head with the bottle. The magistrate’s failure to deal directly with this defence meant that the conviction should be set aside.

But senior state advocate Nickie Turner said Lungisa could not shift the basis of “his defence at this late stage”.

She said his version in the trial had been that he was “actually attacked” by Kayser and another councillor, Johnny Arends, and that he was lawfully defending himself by hitting Kayser over the head with the glass jug.

“There was no question of him being under the impression he was under attack.”

She said his evidence that he had lawfully defended himself after being attacked was not borne out by either a video of the incident or by other state witnesses.

She said Lungisa had been a poor witness who had “embroidered” and changed his evidence during his testimony.

Turner argued that the hefty sentence was also appropriate. Lungisa was a leader of his party and required to instill discipline in its ranks and teach them council rules. Instead he had flouted all the rules and set a most shocking example of behaviour in a council chamber.

“The defiance and violence resorted to when a motion goes against your political party sets a serious precedent for future conduct which places our democracy in a tenuous position.”

She said it was fortuitous

Kayser had not died or been brain damaged.

But, Ngcukaitobi said Lungisa had acted in the heat of the moment while feeling under threat in a politically contentious situation.

“This was a scuffle, a moment of madness. It was not a heinous crime carefully thought through and executed.”

If his conviction and sentence stand, it could put the brakes on Lungisa’s future aspirations to hold elected political office. Apart from having to serve an effective two years behind bars, the constitution stipulates that for five years after he has completed his sentence he cannot serve as an elected member of a council, or provincial or national legislature.

The high court reserved judgment.