Constitution ‘disqualifies Malema from being an MP’

2014-06-13 00:00

CAPE TOWN — EFF leader Julius Malema’s must wait until the last week of August to contest his status as an unrehabilitated insolvent, and meanwhile his parliamentary membership is unconstitutional.

Two legal experts agreed that Section 2 of South-Africa’s Insolvency Act defines Malema as an “unrehabilitated insolvent” after the high court in Pretoria confirmed his provisional sequestration in February.

Article 47 (1) of the Constitution determines that “unrehabilitated insolvents” are disqualified from becoming members of the National Assembly.

In terms of the Insolvency Act, a person whose estate is under sequestration is an unrehabilitated insolvent. The act makes it clear this includes provisional sequestration. Malema was nevertheless sworn in as member of Parliament in his red overall. The ceremony took place only days after the high court had extended the sequestration of his estate to August 25 and Malema had entered into a conditional compromise agreement with the Receiver on the R16 million which SARS claims Malema owes it.

It now appears that the Independent Electoral Commission (IEC) and the Speaker of Parliament, who had to check that candidates qualify for the National Assembly, were unaware Malema is an unrehabilitated insolvent.

Professor Bernard Bekink, lecturer in law at the University of Pretoria, said the law disqualified Malema from being in Parliament and advised he should elect another EFF member in his stead until the court withdraws its sequestration order. This could happen in August when Malema must return to the high court to give reasons why the sequestration should not be made final.

Spokesperson for the Speaker, Luzuko Jacobs, declined to comment yesterday, while neither the IEC nor Malema or the EFF reacted to queries.

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