On 27 October 2017 Andile Lungisa struck a fellow Nelson Mandela Bay councillor over the head with a glass jug filled with water. He was subsequently convicted of assault with the intent to do grievous bodily harm and sentenced to three years’ imprisonment, one year of which was suspended. The conviction and sentence (with a minor amendment) were confirmed on appeal to the High Court. Last week the Supreme Court of Appeal (SCA) heard argument in the appeal of Lungisa’s sentence (the conviction could not be appealed and the guilty verdict is therefore final).

As I will explain below, the outcome of this appeal of the sentence may potentially have an impact on Lungisa’s political future and on the election of a new mayor for Nelson Mandela Bay.

The judgment of the Eastern Cape Division of the High Court (Grahamstown), emphatically dismissing the appeal against Lungisa’s conviction and sentence, makes clear why Lungisa’s version of the attack was found to be false. (It is, therefore, odd that Lungisa’s patently false version of the assault was seemingly uncritically broadcast by eNCA this week.) The court bemoaned the “poor quality” of Lungisa’s evidence, pointing out that he “adjusted his version as he went along”, that he was “a very evasive witness”, that his “version grew and changed in the telling and was difficult to follow”, and that his “evidence of the alleged attack on him chopped and changed”.

Lungisa’s problems were exacerbated by the fact that his version differed from the version he earlier gave to an investigating officer. As the court noted: “One might have thought he was describing two different events.” Furthermore, videos of the assault were presented as evidence in court, and Lungisa’s version differed substantially from what was clearly shown in the videos, and from the corroborating evidence of several witnesses. The High Court version of Lungisa’s contradictory evidence is at times rather comical:

“He took a jug from the secretaries’ table and thought that he would throw water at Kayser… He did not know what the jug was made of because he was a new councillor. At that stage, the appellant’s eyes were closed. He hit Kayser once with the jug. His intention was to pour water on Kayser but he ended up hitting him with the jug.” 

As the High Court noted, the video evidence corroborated the state witnesses’ evidence that there was no attack on him by fellow councillors as Lungisa had claimed. They “were not aggressive and were not assaulting or attempting to assault the appellant”. Given all this evidence the court went further and found that “it is not reasonably possibly true that the appellant subjectively believed that he was under attack”. In other words, the testimony of Lungisa about him being attacked is false and Lungisa must have known this to be false. This is another way of stating that the witness knowingly lied to the court.

If Lungisa refuses to resign, but agrees not to attend council meetings (the now infamous and probably unlawful “stepping aside” option), this may also have dramatic consequences for who gets elected as mayor of Nelson Mandela Bay, as his absence may once again tip the balance of power away from the ANC-aligned parties in the council.

Whatever other factional reasons there may be for the instruction to resign from the council, a careful reading of the High Court judgment makes clear that Lungisa’s performance as a witness and his ultimate conviction, provide ample reasons to justify his removal.

But this is not the end of the matter. 

Lungisa is an elected member of the Nelson Mandela Bay council, and like any other elected representative (whether to the National Assembly, provincial legislature or municipal council), he is not legally obliged to obey an instruction from his party to resign as an elected representative. While a refusal to resign may have consequences for his future in the party, the party instruction to resign is not legally binding. But what happens if Lungisa refuses to resign?

In this case, the matter may be resolved by the SCA if that court declines to reduce Lungisa’s sentence. This is because section 158(1)(c) of the Constitution (read with section 47(1)(e)), states that “anyone who is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine” is disqualified from serving as an elected representative. Such a disqualification lasts for five years “after the sentence has been completed”. This means, unless the SCA reduces his mandatory prison sentence to 12 months or less (it currently stands at two years), Lungisa will automatically lose his seat in the council. He will also not be able to return to the council or any other legislative body for five years from the date his sentence was completed.

If the SCA reduces Lungisa’s sentence to 12 months or less, and he refuses to resign as instructed, the ANC could enforce its instruction by expelling Lungisa from the party as he would then automatically lose his seat. This is because section 27(c) of the Local Government: Municipal Structures Act states that any councillor elected from a party list who “ceases to be a member of the relevant party” automatically loses his or her seat in the municipal council, while section 27(f)(i) states that a ward councillor who was nominated by a party as a candidate in the ward election and ceases to be a member of that party also loses his or her seat automatically.

The two rules described above also apply to elected representatives to the National Assembly or provincial legislatures, which is perhaps why some ANC members are rather anxious about the possibility that the National Prosecuting Authority might start prosecuting individuals for corruption, and about the threat of internal disciplinary action being taken against them. 

But Lungisa’s matter is further complicated by the fact that Nelson Mandela Bay is currently dysfunctional, as it has for several months failed to elect a mayor. This is because the ANC and its allies are not certain that they have the votes to secure a win for their mayoral candidate. Because of this impasse, the High Court recently ordered the council to elect a mayor by the end of the week.

However, on Tuesday speaker Buyelwa Mafaya filed papers with the Port Elizabeth High Court, asking for leave to appeal against an order that a council meeting be convened before the end of the week so that a new mayor can finally be elected. Meanwhile, Nelson Mandela Bay interim mayor Thsonono Buyeye has sought to interdict Nqatha and the provincial government from invoking section 139(1)(a) of the Constitution, which states that when a municipality cannot fulfil an executive obligation, the relevant provincial executive may intervene.

It is uncertain whether either of these applications will be successful, although they do buy some time for the ANC councillors to try to sort out their mess. If the council is forced to elect a new mayor and Lungisa at that time had lost his seat or had resigned from the council as instructed by the ANC, and a new councillor had not been sworn in yet, there is a possibility that the DA candidate could be elected as mayor. (Nothing is certain in this regard, because one never knows whether some councillors will not be bribed to vote for the mayoral candidate of their political opponents.)

If Lungisa refuses to resign, but agrees not to attend council meetings (the now infamous and probably unlawful “stepping aside” option), this may also have dramatic consequences for who gets elected as mayor of Nelson Mandela Bay, as his absence may once again tip the balance of power away from the ANC-aligned parties in the council.

While the situation in Nelson Mandela Bay is somewhat unique due to the criminal conviction of Lungisa, it nevertheless illustrates how messy the removal of elected representatives in a legislative body can become, especially where the governing party does not have a solid majority in the legislature. DM