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MBABANE – Doors are open! All aspiring Members of Parliament (MPs) who lost in the national elections have until 2pm today to lobby for a Senate seat.

This follows the landmark ruling, which was yesterday issued by a full bench comprising Judge Mumcy Dlamini, sitting with Judge Maxine Langwenya and Judge Mzwandile Fakudze.

The court heard former Lobamba Member of Parliament Michael Masilela’s application, challenging the constitutionality of Section 5(3) of the Senate (Elections) Act No.7 of 2013 yesterday, and found that this section of the Act that Masilela challenged was indeed unconstitutional.

The Act states that a person who is an unsuccessful candidate in the general elections shall not be considered for nomination as a senator.
When Masilela lost in the Primary Elections, his ambition to remain a parliamentarian remained alive. The only stumbling block was the Senate Act and he filed an urgent application at the High Court.

He wanted the court to strike out the section of the Act, which prohibits losing MP candidates from being considered for seats in Senate.
Masilela, who is also a businessman, was represented by Zonke Magagula of Zonke Magagula and Company.
“Having heard counsel for the parties, applicant’s (Masilela) application succeeds with no order as to costs,” reads the order.
Judge Dlamini said reasons for the ruling would follow in due course.

In his application, Masilela of Nkhanini argued that Section 5(3) of the Act was inconsistent with Section 97 of the Constitution.
He wanted the court to strike down this subsection of the Act due to being inconsistent with Section 97 of the Constitution.
Masilela was nominated for the position of MP at Nkhanini Royal Kraal, having satisfied all requirements to stand for the Primary Elections.
However, during the Primary Elections, he was unsuccessful and he came second with 554 votes. The successful candidate obtained 561 votes. The former MP informed the court that he qualified for nomination into Senate because the requirements for such a qualification into that position were almost the same as those of an MP. Masilela submitted that Section 97 of the Constitution gives a list of qualities that disqualify a person from being nominated or elected into Senate.
The conditions for disqualification include being insolvent, under sentence of death or imprisonment of more than six months and not being eligible to be a voter, among other things.
Masilela submitted that he had not been declared insolvent, unsound mind, under sentence of death or been imprisoned for more than six months.  He said Section 5(3) of the Senate (Elections) Act sought to add another ground for disqualification from being eligible for a seat in Senate.
Masilela said it was not mentioned in Section 97 of the Constitution that a person who lost in the Primary Elections did not qualify for nomination into Senate.
“I am advised and verily believe that the provisions of Section 5 are inconsistent with the provisions of Section 96 and 97 of the Constitution,” said Masilela.
The businessman informed the court that his right to participate in the elections as a voter or candidate was guaranteed by the Constitution.
In his heads of argument, the Elections and Boundaries (EBC) Chairman, Chief Gija, said Masilela ought to have identified the anomalies in the legislation and moved a motion to amend them timeously.
“It is common cause and knowledge that he underwent the same procedure of having to nominate prospective senators using the same piece of legislation that is being contended hereon,” the chairman submitted.
He also said the section of the Senate Act Masilela contested was an instrument used by all elected MPs to canvass, nominate or even elect senators. Chief Gija submitted that Masilela, at the time, was one of those who knew and applied the provision of the Act.
According to Chief Gija, Masilela knew five years in advance to rectify the anomaly, while he was still in office if he wished to one day be nominated as a senator.
“A whopping four years elapsed since he became aware of Section 5(3) of the Senate Elections Act. The applicant advanced no explanation why it took him so long before he could approach the court for relief. The applicant cannot now move into high gear and expect the court and the other litigants to adjust to his motion,” said the chief.
The chief argued that Masilela was not only an MP but also the chairperson of the Justice Portfolio Committee.
According to Chief Gija, Masilela failed to establish that he had a direct interest in the matter and failed to demonstrate that he was a person aggrieved.
He further submitted that Masilela had not suffered any prejudice as the Senate Act had not been of any consequence to him.
“He has failed to demonstrate in his papers that he will suffer any pecuniary loss or any form of loss as a result of the inconsistency. In any event, there is no guarantee that he will even be elected as a senator,” added Chief Gija. He informed the court that since the former MP wanted the court to strike out a section of the Senate Act, he does not have legislative powers or any role in the election of Senators.

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