EFF leader Julius Malema may keep his parliamentary seat despite being sentenced to five years in prison by the East London regional court on Thursday, an analyst has explained.
The constitution stipulates an MP is eligible to be a member of the National Assembly unless they are convicted and sentenced to more than 12 months’ imprisonment without the option of a fine. However, it states that no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined.
That is the saving grace for Malema, as the leader of the fourth-biggest party in the country, in keeping his job after the sentencing by magistrate Twanet Olivier.
He was granted leave to appeal after being handed a five-year jail term related to firearm charges.
Malema was sentenced to five years for unlawful possession of a firearm, two years for unlawful possession of ammunition, and a R20,000 fine or six months’ imprisonment for unlawful discharge of a firearm, failure to take reasonable precautions to avoid danger to a person or property, and reckless endangerment to a person or property.
All the other counts will run concurrently with the five-year sentence for unlawful possession of a firearm, effectively meaning he is sentenced to five years’ direct imprisonment.
The charges emanate from the July 28 2018 EFF rally held in Mdantsane, during which Malema fired a rifle in the air.
Council for the Advancement of the South African Constitution (Casac) secretary Lawson Naidoo said that in the appeal process, the onus will shift to Malema’s legal team to prove the magistrate erred after the state proved its case in arguing for imprisonment.
“I think this was a reasoned judgment. It may be that the appellate court will have to be convinced that the magistrate made an error in the application of the law in the conviction and sentence. It will be very difficult to argue that the sentence is unreasonable in the circumstances,” Naidoo said.
Pending the appeal, the law does allow the red berets’ leader to continue being an MP, he said. The status will remain until the appeal is determined.
“The purpose of filing leave to appeal immediately is to keep his job and ensure Mr Malema is released on bail again. He is currently on bail,” Naidoo said.
“It is still early days to talk about the case possibly serving before the Constitutional Court. The matter is still at a regional court level; the magistrate will decide whether to grant leave to appeal. The next step will be at the High Court in Makhanda.”
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