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ANDILE LUNGISA APPELLANT And THE SUPREME COURT OF APPEAL OF SOUTH AFRICA JUDGMENT Reportable Case No: 696/2019 In the matter between: ANDILE LUNGISA APPELLANT and THE STATE RESPONDENT Neutral citation: Lungisa v The State (Case no 696/2019) [2020] ZASCA 99 (9 September 2020) Coram: MAYA P and DAMBUZA and NICHOLLS JJA and WEINER and MABINDLA-BOQWANA AJJA Heard: Matter disposed without oral hearing in terms of s 19(a) of the Superior Courts Act 10 of 2013. 2 Delivered: This judgment was handed Ukuwiswa: Esi sigwebo sawiswa down electronically by circulation to ngeintanethi, ngokusiwa kubathetheleli the parties’ legal representatives by bamacala onke ngeimeyili, email, publication on the Supreme nangokupapashwa kwisiza sonxi- Court of Appeal website and release to belelwano seNkundla yeziBheno SAFLII. The date and time for hand- ePhakamileyo nangokufakwa ku- down is deemed to be 15h00 on SAFLII . Umhla nexesha lokuwiswa 9 September 2020. kwaso uthathwa njengokuba ngulo: ngu-15h00 ngomhla we-9 kweyo Msintsi ka 2020. Summary: Sentence – appeal against Isishwankathelo: Isohlwayo – isibheno imposition of effective sentence of two esichasa ukunikwa kwesohlwayo years’ imprisonment for assault with sokuvalelwa entolongweni iminyaka intent to cause grievous bodily harm to emibini epheleleyo ngenxa yokuhlasela fellow municipal councillor – whether ngenjongo yokwenzakalisa kakubi trial court exercised discretion emzimbeni ugxa wakhe ongomnye improperly – whether sentence is wooceba bakwamasipala – ingaba disproportionate – appeal dismissed. inkundla eyavavanya ityala yasebenzisa ilungelo layo lokwenza isigqibo ngokungafanelekanga na – ingaba isohlwayo sigqithisile na – isibheno sachithwa. 3 ORDER UMYALELO On appeal from: Eastern Cape Kwisibheno esivela: KwiSahlulo Division of the High Court, SeNkundla ePhakamileyo SaseMpuma Grahamstown (Roberson J and Renqe Koloni, eGrahamstown (NguRoberson J AJ (concurring) sitting as a court of noRenqe AJ (bevumelana) behleli appeal): njengenkundla yesibheno): 1. Condonation for the late filing of the 1. Isicelo sombheni sokuxolelwa appellant’s notice of appeal is kokungeniswa kade kwesaziso granted. sakhe sokubhena siyavunyelwa. 2. Condonation for the late filing of the 2. Isicelo somphenduli sokuxolelwa respondent’s heads of argument is kokungeniswa kade kwezihloko granted. zakhe zengxoxo siyavunyelwa. 3. The appeal is dismissed. 3. Isibheno siyachithwa. 4 JUDGMENT ISIGWEBO Mabindla-Boqwana AJA (Maya P NguMabindla-Boqwana AJA and Dambuza and Nicholls JJA and (uMaya P noDambuza noNicholls Weiner AJA concurring): JJA noWeiner AJA bevumelana): [1] The appellant, Mr Andile Lungisa, [1] Umbheni, uMnu. Andile Lungisa, appeared before the Port Elizabeth wayevele phambi kweNkundla Magistrates’ Court (Mr Cannon) on a yeeMantyi yaseBhayi (kuMnu. Cannon) charge of assault with intent to cause emangangalelwe ngokuhlasela grievous bodily harm. He pleaded not ngenjongo yokwenzakalisa kakubi guilty to the charge and was emzimbeni. Waliphika ityala, waza subsequently convicted of that charge emva koko wafunyanwa enalo elotyala on 17 April 2018. On 9 May 2018 he ngowe-17 kuTshaz’iimpuzi ka-2018. was sentenced to three years’ Ngowe-9 kuCanzibe ka-2018 wanikwa imprisonment, of which one year was isohlwayo sokuvalelwa entolongweni suspended for a period of five years on iminyaka emithathu, ekwathi unyaka condition that he was not convicted of omnye kuloo minyaka waxhonywa assault with intent to cause grievous ithuba eliyiminyaka emihlanu, phantsi bodily harm or assault, committed komqathango wokuba engasayi during the period of suspension. kufunyanwa kwakhona enetyala lokuhlasela ngenjongo yokwenzakalisa kakubi emzimbeni okanye elokuhlasela, ekwenza ngelixesha lokuxhonywa kwawo. 5 [2] With the leave of the Eastern Cape [2] Wathi ke ngemvume yeSahlulo Division of the High Court, seNkundla ePhakamileyo yaseMpuma Grahamstown (the high court), he Koloni, eGrahamstown (inkundla appealed against both his conviction ephakamileyo), wabhena and sentence. His appeal was dismissed ngakwisigwebo esi sokuba netyala, on 2 April 2019 and the high court only kwanesohlwayo eso wayesinikiwe. adjusted the condition attached to the Isibheno sakhe sachithwa ngowesi-2 suspended portion of his sentence.1 He kuTshaz’iimpuzi ka-2019 yaza thereafter lodged a petition with this inkundla yalungelelanisa nje Court and was granted special leave to lamqathango uhamba nalaandawo appeal against his sentence only, on ixhonyiweyo yesohlwayo sakhe. Uye 27 May 2019. emva koko wafaka isicelo sokubhena kuleNkundla, waza wanikwa imvume ekhethekileyo yokuba abhene ngakwisohlwayo kuphela, ngowama-27 kuCanzibe ka-2019. [3] The parties agreed to have the [3] Umbheni kunye nombuso appeal determined without the hearing bavumelana ukuba isibheno eso of oral argument in terms of s 19(a) of siqwalaselwe kungakhange kuviwe the Superior Courts Act 10 of 2013 (the zingxoxo mpikiswano ngqo Superior Courts Act). An issue to be ngokomlomo, oko kusenziwa disposed of before consideration of the ngokwemimiselo yesolotya elingu 1 By adding the words ‘and for which the accused is sentenced to unsuspended imprisonment without the option of the fine.’ Ngokufakela la mazwi: ‘asinikelwa yona umtyholwa lo isohlwayo sokuvalelwa entolongweni kungaxhonywa ndawo yaso kungekho nethuba lokuhlawula umdliwo.’ 6 merits of the appeal relates to two s19(a) woMthetho weeNkundla condonation applications brought by eziNgentla we-10 ka-2013 (uMthetho both parties, one pertaining to the late weeNkundla eziNgentla). Umba filing of the notice of appeal by the ekufuneka kuqalwe ngawo phambi appellant and the other relating to the kokunika ingqalelo kwinkqu yesibheno late filing of the heads of argument by esi zizicelo ezibini zoxolelo the respondent. Both applications were ezingeniswe ngawo omabini amaqela, unopposed and, having perused the omnye uphathelele nokungeniswa kade relevant affidavits, I am satisfied that kwesaziso sokubhena ngumbheni, good cause has been shown for omnye ingulowo wokungeniswa kade condonation to be granted. kwezihloko zengxoxo ngumphenduli. Zozibini ezi zicelo zange kubekho cala liziphikisayo; ke, ndakuba ndiwagocagocile amaxwebhu obungqina, ndanelisekile kukuba zikhona izizathu ezivakalayo zokuba eziziphene zixolelwe. [4] The appellant’s conviction ema- [4] Ukufunyaniswa enetyala kombheni nates from events which took place in lo kususela kwizehlo ezenzeka the Nelson Mandela Bay Municipality kwigumbi leBhunga lika-Masipala Council (the Council) chamber at a waseNelson Mandela Bay (iBhunga) meeting held on 27 October 2016. At kwiintlanganiso eyayibanjwe ngomhla that meeting the appellant, who is a wama-27 kweyeDwarha ngo-2016. member of the African National Kuloo ntlanganiso umbheni lo, olilungu Congress (ANC) and was, at the time of lombutho i-African National Congress 7 the incident, its leader in the Council, (i-ANC) nowaye, ngelo xesha grievously assaulted one Mr Ryno kusenzeka lento, eyinkokheli yawo lo Kayser (the complainant), a Democratic mbutho phaya kwelaaBhunga, Alliance (DA) councillor. The incident, wahlasela ngokuyingozi uMnu. Ryno which was recorded by Mr Ronaldo Kayser (ummangali), uceba Gouws, also a DA councillor, on his cell weDemocratic Alliance (i-DA). Esi phone, occurred during a debate sehlo, esathi sashicelelwa nguMnu. involving the conduct of another ANC Ronaldo Gouws, naye enguceba we- Councillor, Mr Sabani, at a previous DA, kumnxeba wakhe oyiselula, sehla meeting. Due to the fact that a matter ngexesha lengxoxo-mpikiswano eyayi- concerning him was to be discussed, the malunga nokuziphatha komnye uceba Speaker, Mr Jonathan Lawack had we-ANC, uMnu. Sabani, requested Mr Sabani to leave the kwintlanganiso eyayingaphambili. Chamber. Mr Sabani refused to do so Ngenxa yokuba kwakuza kuxoxwa causing the Speaker to call for security ngomba omalunga naye, uSomlomo, personnel to remove him. Security uMnu. Jonathan Lawack, wayemcelile members were prevented from uMnu. Sabani ukuba aphume kulo approaching Mr Sabani by certain iGumbi elo. UMnu. Sabani wala members of the Council, including the ukwenjenjalo, nto leyo eyabangela appellant. ukuba uSomlomo abize abezokhuselo ukuza kumkhupha. Amalungu ezokhuselo athintelwa ukuba asondele kuMnu. Sabani ngamalungu athile eBhunga elo, ekwakukho kuwo nombheni lo. 8 [5] A motion which caused [5] Kwabakho ke isiphakamiso consternation among ANC councillors esabangela ukunxunguphala phakathi was adopted by the Council in respect kooceba be-ANC esathi samkelwa of Mr Sabani. The meeting then liBhunga ngokubhekise kuMnu. Sabani. descended into chaos. At this point, the Intlanganiso ke ngoku yasuka yaba appellant and another ANC councillor, ngumbhodamo. Kwesi sithuba, Mr Feni, approached the Speaker’s umbheni lo kunye nomnye uceba we- precinct. Mr Feni grabbed the Speaker ANC, uMnu. Feni, baya ngakwiqonga by the arm and the complainant moved likaSomlomo. UMnu. Feni wanqakula towards the Speaker’s table to uSomlomo ngengalo waza ummangali intervene. It is at this stage that the wasondela ngasetafileni kaSomlomo appellant hit the complainant on his ukuya kungenelela. Kwaba kwesi head with a glass jug filled with water. sithuba ke apho umbheni lo wabetha The complainant fell to the ground and ummangali entloko ngejagi yegilasi bled profusely. He became unconscious ezele amanzi. Ummangali wawa and was taken to hospital, where he phantsi, wopha ngamandla. Wakhe received medical treatment. He wemkelwa ziingqondo waza wasiwa sustained a three centimetre long, one esibhedlele, apho wafumana unyango centimetre deep laceration with an loogqirha. Waba nenxeba
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