Bail granted, but Lungisa opts to remain in jail

Hours after being granted bail on Friday, jailed ANC councillor Andile Lungisa chose to remain in prison — for now.

Exactly what motivated his decision is not yet known, though his family maintained that Lungisa had opted to take part in anger management programmes and his work in jail was “not yet complete”.

In granting him bail of R10,000 earlier in the day, judge Sunil Rugananan told the high court sitting in Makhanda that Lungisa should not be under the illusion that the judgment cloaked him in any heroic attributes.

“The judgment quite simply is the product of an impartial application of the law to the facts and it should properly be understood in that context,” Rugananan said.

He said if he erred in reaching a conclusion about bail, then it needed to be on the side of a person’s constitutional right to liberty.

Lungisa had asked to be released on bail pending the outcome of his application to the Constitutional Court for leave to appeal against his two-year prison sentence for assault.

He had previously failed in his appeals to the high court in Makhanda, and the Supreme Court of Appeal in Bloemfontein.

“If I were to refuse bail and the application for leave to appeal is successful, whenever that might be, then [Lungisa] would have been deprived of his freedom unnecessarily and the interests of justice will not be served.

“If, however, bail is granted and leave to appeal fails, then he will inevitably proceed to serve his sentence,” Rugananan added.

As the judge handed down his ruling, it was surprisingly quiet outside the court building — a stark contrast to the cheering, dancing and singing from supporters when the matter was argued on Monday.

Back at the North End Prison in Port Elizabeth, where Lungisa has been incarcerated since Thursday last week, supporters trickled in, expecting to see the fiery politician set free.

His younger brother, Ayongezwa, later told the disappointed crowd that Lungisa had instead opted to remain behind bars.

He wanted his name cleared by the Constitutional Court before he walked out of prison, Ayongezwa said.

He said that back in 2018, when Lungisa spent 16 days behind bars for the assault on DA councillor Rano Kayser, he had engaged himself with issues inside the prison and he now wanted to complete what he had started.

“Because there would be a public narrative that he wants to buy himself out of the process ... he wants to be seen by the public as someone who is equal,” Ayongezwa said.

He said Lungisa was undergoing anger management classes, among other programmes.

Lawyer Alwyn Griebenow confirmed that Lungisa did not pay bail on Friday.

He said he had not yet consulted with his client and could not give an explanation at this stage.

“All I can say is that Mr Lungisa will not be coming out today [Friday].

“But we are very happy that the judgment went the way it needed to go.”

In a statement issued by the family on Friday evening, Ayongezwa said his brother’s decision to remain in jail had been motivated by their cultural beliefs.

“After the granting of bail, as the family we consulted with Andile.

“We then agreed that while the bail in itself is a sign of victory, for cultural considerations he should remain custody until the ConCourt decides on his appeal,” the statement said.

“The decision to have Andile remain in prison happens against the desperate narrative driven by the National Prosecuting Authority (NPA) that he is engaged on a prolonging process, but the ultimatum will remain the same.

“The hopeless NPA further argued that Andile is engaged in buying himself out of his legal woes.

“With the [Makhanda] court’s determination [on Friday], the NPA must now go fundraise a new narrative as this concocted narrative is legally baseless.”

In his Constitutional Court papers, Lungisa argued that his right to a fair hearing had been infringed upon because the Supreme Court of Appeal ought to have considered his sentence not on the basis of him being a councillor, but on the basis of him being an ordinary offender.

He said the effective two-year jail term was tantamount to a cruel and degrading sentence, and an arbitrary deprivation of his freedom.

Rugananan said it was not appropriate to comment on the issues before the Constitutional Court because his only job was to decide on bail.

“This court must determine whether it’s in the interest of justice to grant bail and whether he has a reasonable prospect in successfully appealing his sentence.

“A court will always grant bail where possible provided that the interests of justice will not be prejudiced.

“In every case where bail after conviction is sought, the onus is on the applicant to show why he should be released.

“I should immediately state that it has never been suggested that [Lungisa] is an inherently violent person, or that he is a flight risk or poses a danger to public safety.”

Rugananan said Lungisa had not previously breached any bail conditions.

When required to report for to serve his sentence, he had.

The judge said the court had to determine whether there was a reasonable prospect that his application for leave to appeal would succeed, however low the threshold might be.

“Frankly, this is the question that has troubled this court.

“It has added to the proverbial grey hair and contributed to a sleepless night or two.

“There may be a perception, right or wrong, that [Lungisa’s] approach to the Constitutional Court is an undue elongation or the judicial process and is intended by him to postpone the commencement of his punishment.

“But having established that [Lungisa] will not abscond, and without seeking to comment in particular depth on the merits of the application for leave to appeal, the issues raised can be said to be reasonably arguable and are not manifestly doomed to failure.”

In addition to setting bail at R10,000, Rugananan instructed Lungisa to hand over all travel documents and report to his nearest police station twice a week.

Should he have a change of heart and opt to be released from custody, and should his appeal then fail, he will have 72 hours to hand himself over to authorities.

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