ANC Eastern Cape heavyweight Andile Lungisa’s bail application was granted in the Port Elizabeth Magistrate’s Court on Friday.
Lungisa applied for bail after his new defence attorney, Alwyn Griebenouw, filed a petition to the Eastern Cape High Court in Grahamstown on Thursday morning for leave to appeal his conviction and sentencing.
Lungisa was sentenced to an effective two year sentence for assault with the intent to cause grievous bodily harm, for smashing a glass jug over the head of former member of the mayoral committee Rano Kayser, during a Nelson Mandela Bay council meeting in October 2016.
In an affidavit submitted in support of his bail application, Lungisa said he was currently serving his sentence at the North End Prison in Port Elizabeth.
Lungisa pointed out that he had been released on bail of R1 000 following his first appearance, and that this had been extended to sentencing following his conviction.
He said he had adhered to the court’s orders and had R10 000 available for bail, was prepared to hand his passport in and report to the Kabega Park police station.
Defence criticised for the way the application handled
Before the bail proceedings began, senior prosecutor Clive Killian addressed the court on the way in which the application had been brought.
He said it was simply unacceptable that the prosecution had only been informed of the matter on Thursday afternoon, when it was supposed to be heard.
Killian said it was critical for the proper administration of justice that all role players be informed and that the way it had been handled did not instil confidence.
“It is unacceptable that it was done as it was done yesterday,” he said.
Magistrate Morne Cannon said he wanted to place on record his dissatisfaction in the manner in which the application was brought to court.
“Neither myself nor the prosecution were afforded sufficient time to peruse the papers yesterday after being handed the papers at 14:00. Nor were we given notice as required that the applicant would be bringing the application.
“Even the department of correctional services seems to have flouted their own rules as it relates to time frames needed to secure the attendance of a sentenced at court.
“The impression was created that the accused was given special treatment. This flies in the face in the maxim that everyone is equal before the law.”
Cannon said he hoped in future the same efforts would be made when another prisoner, who was not as well known as Lungisa, was needed before court.
State did not oppose bail
Killian said he had consulted with both the prosecutor in the case, Wayne Ludick, as well as the investigating officer, and following these consultations the State had come to the conclusion that they would not oppose bail.
Following representations made by Lungisa’s defence, Cannon granted bail of R10 000.
The conditions of the bail included that Lungisa stay at the residential address given to the court until the appeal had been addressed, that he report to the Kabega Park Police station every Monday and Friday between 08:00 and 15:00 and that he report to the clerk of the court within seven days of receiving written notice that his petition for leave to appeal was unsuccessful or, if the petition was successful, his appeal was unsuccessful.
Grounds for leave to appeal
In a separate affidavit, included in his bail application and attached to his petition to the Eastern Cape High Court judge president for leave to appeal, Lungisa recounted the events of the council meeting in October 2016. He said the fact that a scuffle had ensued and he had hit Kayser with the water jug was not in dispute.
“My evidence was that I believed I am under attack and that I had acted in defending myself,” he said.Lungisa said there were discrepancies over where he had picked up the jug, and the State had tried to show his actions had been premeditated.
He said the fact that Magistrate Cannon had found the contradictions over where he had picked up the jug not material was a misdirection.Lungisa also referred to the video evidence submitted by DA councillor Renaldo Gouws.
He said Gouws had told the court he had manipulated the video and that it was not a complete picture of what had occurred to him before he used the jug.
Lungisa argued that he lacked intent, in a legal sense, and that at most he did not act as a reasonable person and was negligent. He said if that was the case he could not be convicted on a charge where intent was a requirement.
Lungisa said he had been shocked at his sentence, which he found disproportionate to the facts. He said Cannon had overemphasised the seriousness of the offence and the interests of the community.
“The magistrate has sacrificed me on the altar of deterrence,” he said.In conclusion Lungisa said the correctness of the conviction and sentence were arguable.
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