Andile Lungisa served at least 91 days of a two-year prison sentence after he was convicted of assault with intent to cause grievous bodily harm for hitting DA Councillor Rano Kayser over the head with a glass water jug. (Photo: Theo Jeptha) Shortly after his release from Port Elizabeth’s North End Prison, former ANC Nelson Mandela Bay councillor Andile Lungisa, flanked by ANC members including Des van Rooyen and Supra Mahumapelo, called on President Cyril Ramaphosa to stop the “attack” on Jacob Zuma.
“I went to prison because we fought the DA,” said Lungisa.
He emerged from jail much like he entered, surrounded by supportive comrades, and using his criminal conviction to further his political goals while continuing to lack remorse for the crime he committed.
Lungisa served at least 91 days of a two-year prison sentence after he was convicted of assault with intent to cause grievous bodily harm for hitting DA Councillor Rano Kayser over the head with a glass water jug during an altercation in the Nelson Mandela Bay council in 2018.
Unresolved questions around his parole have raised issues about the effectiveness of the justice system and the executive’s influence on prison sentences.
Lungisa went to jail after the Supreme Court of Appeal in September 2020 denied him leave to appeal an Eastern Cape High Court judgment that sentenced him to three years’ imprisonment, with one year suspended.
In a statement issued on Tuesday, Department of Correctional Services spokesperson Singabakho Nxumalo explained that Lungisa served at least 16 days in jail after he was convicted in May 2018 before he was released pending appeal.
He explained that Lungisa was eligible for parole under section 73(7)(a) of the Correctional Services Act read together with section 276(1)(i) of the Criminal Procedure Act, which essentially makes prisoners who have served one-sixth of their sentence eligible for parole.
Lungisa also benefited from Ramaphosa’s December 2019 announcement of remission of sentences by 12 months for qualifying convicts.
Breaking it down, Lungisa’s effective two-year sentence was halved by the president’s remission, which experts agree he qualified for, reducing his sentence to 12 months. The one-sixth provision would mean he would only have to serve two months, which he did, to qualify for parole.
That means his release is suspicious. Ordinarily, an offender is eligible for release after serving one half of the sentence.
But the court didn't sentence Lungisa under 276(1)(i) of the Criminal Procedure Act (CPA), the one-sixth rule, and Nxumalo did not answer questions from Daily Maverick as to why it was applied in Lungisa’s case.
“He was sentenced by the magistrate to direct imprisonment. If an offender is to benefit from section 276(1)(i) then the sentencing court would make that clear. If anything, the magistrate made it clear that direct imprisonment was appropriate on account of the violent nature of the crime,” said Clare Ballard, head of the Penal Reform Programme at Lawyers for Human Rights.
“That means his release is suspicious. Ordinarily, an offender is eligible for release after serving one half of the sentence,” she added.
Professor Lukas Muntingh, co-founder and project coordinator of Africa Criminal Justice Reform at the Dullah Omar Institute at the University of the Western Cape, agreed that Lungisa had not been sentenced under 276(1)(i), which he called on the State to clarify, but believed he would have been eligible for parole regardless.
Muntingh said Lungisa was sentenced to an effective two years in prison and as inmates are generally eligible for parole after serving half of their sentence, Lungisa would be eligible for parole after serving 12 months. But due to the president’s remission taking a year off that sentence, the former ANC regional leader was essentially eligible for parole from day one.
https://www.dailymaverick.co.za/article/2020-11-28-south-africa-is-running-out-of-time/
Nxumalo didn’t respond to questions on who granted Lungisa parole. Muntingh said a parole board rather than the manager of the prison facility should have considered the matter, because Lungisa was sentenced to three years in prison, with one year suspended.
Without Ramaphosa’s remission, Lungisa would still be in jail. The state announced further efforts to release certain non-violent criminals and reduce overcrowding in prisons during the Covid-19 pandemic.
“I think it comes at a cost to the criminal justice system and the courts when a court’s decision can be altered so radically by the president,” said Muntingh, who questioned “the possible permutations and outcomes” of early releases.
Lungisa’s release sparked debate on social media about the effectiveness of the justice system from both Lungisa’s supporters and detractors, showing a deep distrust in the system’s ability to hold criminals accountable. From different angles, cases were cited to show that the privileged are given an easy ride, with little consideration for the facts.
Johan Steyn was last week sentenced to house arrest and community service for the attempted murder of a security guard. The Supreme Court of Appeal acquitted two men previously convicted of killing a teenager in Coligny. The Nelspruit Magistrates’ Court relaxed bail conditions for a former ANC provincial MEC accused of raping his daughters, so he could resume his political work.
What prevents crime is the surety of arrest and conviction. We’re failing at that. The issue of punishment has next to no bearing on crime and violence prevention.
The most recent Statistics South Africa Victims of Crime Survey detailing levels of trust in public institutions found that only 15.5% of people strongly trust the police and 21.4% strongly trust the courts. It found that 63.5% trust the courts and 47.7% trust the police.
Gareth Newham, who heads the Institute for Security Studies’ Justice and Violence Prevention Programme, said many South Africans were likely to have been relieved to see Lungisa go to jail after seeing other politicians evade charges. Lungisa’s attack was filmed on camera and now his early release might feel like an unfair subversion of justice.
Ballard said the mistrust is appropriate but misplaced regarding punishment, as punishment has little bearing on crime levels.
“What prevents crime is the surety of arrest and conviction. We’re failing at that. The issue of punishment has next to no bearing on crime and violence prevention,” she said.
Lungisa still plans to appeal his conviction at the Constitutional Court. Further complicating his motives, and questions about the justice system, the Eastern Cape High Court granted him bail in September, pending his ConCourt appeal, but he chose to stay in prison, reportedly to finish his rehabilitation programmes.
Lungisa must now serve the remainder of his sentence under the community corrections system, but it’s unclear what conditions will be imposed. DM