The Western Cape High Court reserved judgment in the Court dismisses EFF bid to lift suspension of MPs, and the National Assembly Rules which govern the disciplining of members of parliament.
EFF leader Julius Malema, his deputy Floyd Shivambu, Secretary-General Marshall Dlamini, as well as Sinawo Tambo, Mbuyiseni Ndlozi and Vuyani Pambo, were sanctioned with suspension without pay for 30-days after they were found guilty of contempt of Parliament in a disciplinary process by the Powers and Priviliges Committee.
This, after the group stormed the stage of the February 2023 State of the Nation Address (SONA) by President Cyril Ramaphosa. The opposed application sat for two days in the High Court.
The EFF contends that the absence of guidelines in what qualifies as a “serious” offence in the rules that govern the disciplining of Members of Parliament (MPs) opens it up to abuse due to the structure which is based on majoritarianism.
This as the party, in its central complaint, submitted that the rules provide the committee with wide powers and discretion without putting in place safeguards to guide against “arbitrariness, partiality, bias and abuse”.
Counsel was probed extensively on what these guidelines on sanctions would look like.
“Because let me tell you why, I don’t want to give an order which actually is nonsense. You say guidelines, (fair), what kind of guidelines are you talking about? All I am trying to say, I’m not asking you to tell me a, b, c but what would they broadly look like, which would essentially close the notion of ‘serious’ in such specificity to meet your point?” says Justice Dennis Davis, Western Cape High Court.
“Firstly, it would, as a matter of principle, it would not have to be with such specificity to make my point … no, hold on, with all due respect, because with respect, what we know from the authorities on the fettering of discretion, it depends on the nature of the power that is being exercised and the kind of consideration that the decisionmaker has to make. It could be examples of seriousness. It doesn’t have to be x, y or z defenses and that’s the point. The absence of guidelines that otherwise qualify what might be serious is open to abuse and that is what the court recognized in Dawood. It is also what it recognised in affordable medicines,” says Advocate Kameel on behalf of EFF.
Parliament, however, is of the view that the EFF’s case is inconsistent with the facts and is internally contradictory.
Counsel on behalf of the respondent stated that the EFF’s case sought to claim that the National Assembly targeted members of the EFF. A claim the respondent says is untrue, submitting that Parliament disciplined members of the EFF because they have been guilty of parliamentary offences.
Counsel on behalf of Parliament further emphasised that Parliament is not a court of law, and its task is very different.
“You cannot expect parliament to act like a court. If you expect parliament to act like a court, one or two things is going to happen. We’re either going to have processes that are so long like that Public Protector process that it is unable to do its work or it is constantly going to be acting unlawfully because it cannot meet the standard that has been set for it. So, that is what happens when you say you must act like a court; you must analyse evidence like a court; you must apply the rules of evidence; you must apply the rules of discovery; you must record things in all the ways that a court would record its judgment, otherwise you haven’t done your job. It is unworkable and it is not what the constitution requires,” says Advocate Michael Bishop on behalf of parliament.
As a result, parliament asked the court to dismiss the application which it termed as abusive with costs.
Judgment reserved in the case of EFF members suspended from Parliament
