Andile Lungisa turns to ConCourt to avoid prison

In a bid to have his appeal heard in the Constitutional Court, Nelson Mandela Bay ANC councillor Andile Lungisa has argued that people in prison being kept in custody is unconstitutional because of the dire conditions and the Covid-19 regulations.

Lungisa, who is the former ANC Youth League deputy president, has applied for leave to appeal his three year sentence to the apex court after the Supreme Court of Appeal (SCA) upheld his sentence of three years in prison (one year suspended) for assault with intent to do grievous bodily harm.

In 2018, Lugisa was found guilty of smashing a glass jug on the head of DA councillor Rano Kayser during a scuffle in the council in 2016.

He previously also approached the Eastern Cape High Court, appealing his sentence and conviction, both of which were upheld.

In legal papers filed with the Constitutional Court earlier this month, Lungisa raises two points which he believes have merit for the court to consider his appeal.

He argues that he was treated differently from an ordinary person in respect to the sentence imposed because of his position as a politician and leader in the municipality where he was a councillor.

He also argues the SCA did not take into account the conditions in prisons, as well as the Covid-19 pandemic and the Disaster Management Act regulations which were enforced as a result.

Covid-19 and imprisonment

According to Lungisa, the SCA did not take into consideration “the massive disadvantages of imprisonment”.

This includes the situation at present with the existence of Covid-19 and overcrowding in correctional facilities.

He added that the harm done to him, his family and his ability to obtain employment once he has served his sentence, was not taken into consideration by the appellate court.

“I would also like to draw this honourable court’s attention to the fact that the Department of Correctional Services have very important laws and regulations, very few of which apply, which means that people are being kept in custody unconstitutionally,” Lungisa said.

Lungisa then referred to the Constitution which states that sentenced prisoners have the following rights:

To conditions of detention that are consistent with human dignity, including at least exercise and the provision, at State expense, of adequate accommodation, nutrition, reading material, and medical treatment.

To communicate with and be visited by persons including spouses or partners, next of kin, a chosen religious councillor, and a chosen medical practitioner.

“I am informed that because of the Covid-19 situation, no one is allowed to visit family members in the prison and access to medical practitioners is, to say the very least, severely limited,” Lungisa said.

‘Appalling food’

He pointed out that there is overcrowding in prison cells, very few people have mattresses and beds, have very little if any access to water, being forced to use the toilet openly where people can see you, and that the food is “appalling”.

However, Lungisa said he could understand that not all prisoners can be released early, especially those who have committed very serious offences and repeat offenders who “would have to put up with those kinds of circumstances at present”.

But for him, it is very different because he will be there for a period of no longer than two years and in that time, he will not be able to see his wife or seven children and he will have very little access to decent food, accommodation, exercise, and decent conditions of living.

Lugisa said: “How can it be that the public at large would support a sentence of this nature on me, I find difficult to accept, but that this is the approach the SCA took and I respectfully submit that they took it incorrectly.”

All persons are equal before the law

Lungisa also argued that the trial court imposed a sentence on him, because of his position in the community.

He said this approach was in conflict of the right of everyone to be treated equally and then repeated case law that the SCA cited.

“I respectfully submit that to treat me differently to ‘an ordinary offender’ and to refer to cases, the facts of which are very different from mine are far more serious than mine in justifying their dismissal of my appeal, affects my constitutional right of a fair trial and in particular my right to a fair appeal.”

Bail

News24 reported earlier on Friday that Lungisa was granted R10 000 bail by the Eastern Cape High Court in Grahamstown, pending the outcome of the leave to appeal application.

The court also attached the following conditions:

Lungisa will have to remain at his residence until such time as his application for leave to appeal to the Constitutional Court has been determined.

He has been ordered to hand over any travel documents by Wednesday, 30 September.

He must report to the Kabega Park police station on Mondays and Fridays.

If Lungisa’s Constitutional Court application is refused, he will have to present himself to the relevant authorities within 72 hours to continue serving his sentence.

For more news your way, download The Citizen’s app for iOS and Android.