Ruling on Lungisa’s jail stay expected by end of week
Nelson Mandela Bay councillor Andile Lungisa will know before the end of the week whether he will have to remain in his “disgusting” North End prison cell pending his application to the Constitutional Court for leave to appeal his two-year effective jail sentence.
Judge Sunil Rugananan said he hoped he would be able to pronounce on Lungisa’s bail application by Wednesday, or at the latest, by Friday.
About 200 supporters, led by provincial ANC heavyweight and deputy speaker of the provincial legislature Mlibo Qoboshiyane, gathered outside the high court in Makhanda in a strong and loud show of support for Lungisa.
To loud cheers from the crowd, Qoboshiyane said he and other current and former ANC Youth League members “will not sit and rest until fair justice is dispensed for Andile Lungisa”.
Lungisa was sentenced to two years direct imprisonment for seriously injuring DA councillor Rano Kayser when he smashed a glass water jug on his head during a heated NMB council meeting in council chambers in October 2016.
Lungisa’s counsel, advocate Terry Price SC, said Lungisa was not a flight risk, had adhered faithfully throughout proceedings to all bail conditions and was no threat to society. He had reported to serve his prison sentence last Thursday as required.
Price said it was not a complicated application for leave to appeal against the “harsh” sentence and he had no doubt the Constitutional Court would not take long to decide it.
“Why must he sit in custody in the most filthy, degenerate jail system while waiting for the Constitutional Court’s decision?”
This was a point Lungisa raised in his affidavit in support of his application for leave to appeal to the Constitutional Court. He said it was cruel and inhumane to expect him to serve time in an overcrowded prison that was a “nest of violence, drug-dealing and sodomy” and where Covid-19 was prevalent. “Maybe [it is OK] for very bad people convicted of rape, child molestation or murder but not for [Lungisa].”
He said it would be more appropriate for Lungisa to have his sentence commuted to correctional supervision where he could serve the community by “cleaning hospitals and police stations” which was quite humiliating enough for someone in his position.
But senior state advocate Nickie Turner said there were no prospects of success on appeal to the Constitutional Court and no more time should be wasted on bail.
She said to date three courts consisting of a total of seven judges and one magistrate had applied their legal expertise to Lungisa’s case and had unanimously found a two-year effective sentence fitted the crime of assault to do grievous bodily harm. “The prospects of success on appeal to yet another court are so remote that they are nugatory.”
She said this must have a strong bearing on Rugananan’s decision on whether he should be granted bail.
For the Constitutional Court to consider the appeal, Lungisa must show a constitutional issue or raise an arguable point of law of public importance. She said he had done neither.
She said prison conditions could never be taken into consideration when weighing up an appropriate sentence.
“What is of public importance is that criminal matters should reach finality and those convicted of crimes should serve their sentences.”
Outside, the crowd vowed to stand by Lungisa “no matter what”.