Why Lungisa does not want to spend time in jail

He also wants bail extended until application for leave to appeal is heard

Nelson Mandela Bay councillor Andile Lungisa wants the Constitutional Court to overturn his effective two-year prison sentence and instead impose a non-custodial sentence for his assault with intent to cause grievous bodily harm on a fellow councillor.

He says in an affidavit to the Constitutional Court that a sentence of imprisonment would be, in his case, cruel and degrading, and that prisons are overcrowded “nests of violence, drug-dealing and sodomy” where Covid-19 is prevalent.

He also wants the high court in Makhanda to extend his bail pending the outcome of his application for leave to appeal to the Constitutional Court.

Lungisa is resorting to the Constitutional Court for leave to appeal after failing in both his high court and Supreme Court of Appeal (SCA) bids to overturn his sentence.

Five judges in the SCA last week found the prison sentence fitted the violent crime for which Lungisa was found guilty. He seriously injured DA councillor Rano Kayser when he smashed a glass water jug on his head during a heated NMB council meeting in October 2016.

“As a leader of the ANC in the council, who was responsible for instilling discipline among his fellow councillors and was a role model for aspiring political leaders, [Lungisa] had a responsibility to lead by example,” said the SCA in its judgment.

“Instead he did the opposite and his fellow councillors indeed took their cue from him and also threw glasses at other councillors.”

The SCA said the community expected its representatives to uphold the law and act in accordance with the rules. Instead they had behaved like “street thugs”.

But Lungisa says the SCA and all the courts preceding it had erred by treating him as a person from whom high public standards were expected rather than as an “ordinary citizen” and an “ordinary offender”. He said the constitution required that everyone be treated equally before the law.

Lungisa also charges in his affidavit that the SCA had failed to properly consider his personal circumstances or the particular circumstances of the case. He was a first offender and not an inherently violent person. His family, which includes seven children, would be devastated by his imprisonment.

Serving a sentence in a crimeridden South African prison was purely retributive, he said.

“The short period of imprisonment I have been sentenced to could just as easily have been imposed as a sentence of correctional supervision in which I would be required to work with the public to cleanse my name and which would be humiliating but necessary.”

He said the SCA had not taken into consideration the massive disadvantages of imprisonment, including overcrowding and Covid-19, or the damage that would be done to him and his family or his ability to get employment once he had served his sentence.

While awaiting the outcome of his application for leave to appeal, Lungisa wants the high court in Makhanda to extend his bail. Lungisa is out on R10,000 bail but has been given notice he must report to start serving his sentence on Thursday. Lungisa says he is not a flight risk and it is in the interest of justice that his bail is extended or he may end up serving his entire sentence before the Constitutional Court has even made its decision.