Convicted Nelson Mandela Bay councillor Andile Lungisa is hanging on to his job, despite yesterday marking his first week as a guest of the correctional services department in Port Elizabeth in the Eastern Cape.
Accompanied by scores of ANC activists, Lungisa cast himself a political prisoner last week when he reported to the North End prison on Patterson Street — commonly known as “rooi hell” — to begin his two-year sentence for assault with intent to do grievous bodily harm.
The conviction is related to his breaking a water jug over the head of Democratic Alliance councillor Rano Kayser during a fracas in the council chambers four years ago. In 2018 Lungisa was sentenced to three years in prison (with one year suspended) for assault with intent to do grievous bodily harm.
South African legislation, more precisely section 119 of the Municipal Systems Act, makes a councillor ineligible to continue serving after they are sentenced to a prison term longer than 12 months without the option of paying a fine.
But Lungisa is still part of the council, on which he occupies a proportional representation seat, and would have received his salary, together with his fellow councillors, this week.
The city will not process his release from council “until all processes [appeals] he is pursuing [that might have an impact on his status as councillor] have been exhausted”, said Nelson Mandela Bay spokesperson Mthubanzi Mniki.
“He has not resigned as a councillor. [The] speaker will start such a process when she receives formal notification of recall by the political party that deployed him.”
The former ANC youth league leader’s refusal to resign following an instruction from the party’s provincial secretary, Lulama Ngcukaitobi, is in line with Lungisa’s belief that his legal problems are being used by factions in the party to destroy him.
In a six-page letter written to Ngcukaitobi on September 8, Lungisa says he has already resigned from leadership positions in the ANC and on the council, but will not resign as an ordinary councillor until all his appeal options are exhausted.
The missive was in response to a letter he received the day before asking him to resign from the council and informing him that his ANC membership was suspended.
“I acknowledge that I have been convicted on a charge of assault due to me protecting myself during a scuffle in a council meeting against the DA. However, and importantly so, the NEC [national executive committee] resolutions, which you refer to in your letter under reply, has a clear rider, which states that ‘this will be a turning point in the fight against corruption’.
“No doubt you are fully aware that I have not been charged with, or convicted of corruption, being the primary basis for NEC resolutions aforementioned, and the current fight within the ANC as an organisation,” he said.
Lungisa also pushes back against the suspension of his ANC membership, saying such a decision can be made by executive committees following proper processes only after all his appeal avenues are exhausted.
ANC provincial executive committee spokesperson, Loyiso Magqashela, said the party informed the Nelson Mandela Bay council on Monday about its intention to replace Lungisa.
“We have written to the speaker … to action his removal from council, and we are waiting for confirmation that the council will declare a vacancy. The normal process is that the next name on the IEC’s [Electoral Commission of South Africa’s] list will take his place as PR [proportional representation] councillor, unless there is an exceptional circumstance that requires us to supply a new name.”
Last week, Lungisa filed an application for leave to appeal his sentence at the Constitutional Court after the Supreme Court of Appeal in Bloemfontein upheld the sentence against him. Today the Eastern Cape high court will decide on his bail application pending the judgment of the apex court.