The Western Cape high court has upheld the sanctions meted out against Economic Freedom Fighters (EFF) leader Julius Malema and five other party members after they were found guilty of contempt of parliament. (Photo by Jeffrey Abrahams/Gallo Images via Getty Images)
Economic Freedom Fighters leader Julius Malema and six other EFF members found guilty of contempt of parliament will next Monday appear before the Western Cape high court to challenge the legislature’s sanction against them.
Court papers filed last week show that Malema, EFF deputy president Floyd Shivambu, secretary general Marshall Dlamini, Vuyani Pambo, Mbuyiseni Ndlozi and spokesperson Sinawo Thambo are seeking redress for what they perceive as an “unjust parliamentary penalty imposed on them”.
The EFF wants the court to declare parliament’s powers, privileges and immunities rules as well as the Provincial Legislatures Act unconstitutional and unlawful, after the committee imposed sanctions against the party for staging a protest in the National Assembly.
The committee in November found the party’s leadership guilty of storming the stage with placards during President Cyril Ramaphosa’s State of the Nation address (Sona) in February.
In his affidavit, Malema said the decision to hold the seven MPs in contempt of parliament infringes on their right to freedom of speech and expression, and that the EFF could not be found guilty of misconduct because its members’ actions were permitted by section 17 of the Constitution, which guarantees free expression.
Malema argued that the EFF was entitled to protest inside parliament against the president in his capacity as head of the executive.
“Parliamentarians are also entitled to the same rights that every ordinary citizen is entitled to,” he said.
Malema said parliament’s disciplinary processes were tainted by the ANC’s majority position in the National Assembly, saying it failed to “sufficiently curtail the opportunities for the ruling party to abuse its majority and punish its political opposition regardless of the lack of merit”.
In December 2022, Malema instructed EFF members to disrupt all of Ramaphosa’s public appearances, accusing him of being involved in the cover-up of the theft of foreign currency from his Phala Phala game farm in Limpopo. Malema contended that Ramaphosa had violated his oath of office by being involved in “money laundering”.
“Everywhere and anywhere we find or see Ramaphosa, and we have an opportunity to stop him from speaking in the name of South Africa, we will do so. We call upon all the fighters and the ground forces to start treating Ramaphosa as such,” Malema said at the time.
But the South African Reserve Bank cleared Ramaphosa of any wrongdoing.
After raising numerous points of order in parliament to disrupt Ramaphosa’s February 2023 address, all EFF MPs in the National Assembly were ejected from the chamber, leading to physical altercations with security officials and delaying the president’s speech.
Malema and the other six were called to attend a disciplinary hearing on 20 November last year but walked out, condemning it as a “kangaroo court” after the committee declined their request for a postponement to finalise their defence.
At the time, EFF legal representative Tembeka Ngcukaitobi argued that it was procedurally unfair for the ANC to lay the charges against the MPs and be witnesses to the case.
“The problem with this committee is that 61% of members are from the ANC. You are sitting in judgment of your political opponents — the EFF. The ANC, therefore, holds enormous power over their political opponents,” Ngcukaitobi said.
He added that time was needed to issue subpoenas to speaker Nosiviwe Mapisa-Nqakula and Ramaphosa to confirm whether a threat of intimidation could be added to the case against the EFF, calling it a “subjective charge”.
But the committee proceeded with the hearing in the absence of EFF members, finding the MPs guilty of contempt and suspending their salaries for one month.
The committee also ordered them to apologise to Ramaphosa and banned them from participating in February’s State of the Nation address. Malema condemned the decision, saying the apology order did not make sense because Ramaphosa accounted to parliament.
“If an apology was warranted — and there is no concession here at all — it could have been an apology to the House itself, not to a subject of parliamentary powers,” Malema said in his court papers.
“The fact that the ANC MPs agreed to such a perverse sanction proves that they were not acting in good faith as MPs, but were intent on proving their loyalty to the president at a time when the ANC is selecting members for the next electoral process.”
The order for an apology to Ramaphosa “simply proves how perverse and farcical the entire disciplinary procedure was”, the EFF leader said.
He said the real intention behind the charges was to prevent the party from expressing its views about Ramaphosa.
“No evidence, at all, was led that the EFF intended to approach the president and the presiding officers in a threatening manner,” Malema said.
Legal expert Phazha Ngandwe said the EFF could apply for an interdict to allow it to participate in the parliamentary activities in February, when Ramaphosa will deliver his speech and later respond to parliament’s debate on it.
“I do believe in the urgent application they can then say, as an interim measure allow us to attend the Sona pending the outcome of the matter, if the outcome is going to take long,”
Ngandwe said, adding that he believed the Red Berets had a case to make about fairness and justice.
In the event that EFF was successful in its court application, then the rules of parliamentary privileges would be expected to change, Ngandwe said. Should the court rule against the EFF, the law would enable the ruling party to become a player.
“The major majority decision is not necessarily a correct decision, not necessarily a just and fair decision. It’s simply a matter of numbers, so it becomes the tyranny of the majority,” he said.