Parliament’s Joint Committee on Ethics and Members’ Interests last year found that EFF leader Julius Malema should not have used the JSC as a “platform for his personal interests”.
The committee recommended that Malema apologise to Judge Matojane and the JSC, but its report must be adopted by the National Assembly for the sanction to take effect.
Malema wants the Western Cape High Court to suspend the implementation of that report, pending his application to review it and set it aside.
Economic Freedom Fighters (EFF) leader Julius Malema has launched an urgent legal bid to block the parliamentary process that may force him to apologise for asking a judge about a R500 000 defamation order he made against the party.
Malema’s legal action comes after Parliament’s Joint Committee on Ethics and Members’ Interests last year found that he should not have used the Judicial Service Commission (JSC) as a “platform for his personal interests” in relation to his questioning of Judge Elias Matojane about the defamation order he made against the EFF – in favour of former minister Trevor Manuel.https://490c4e56901021a13a70fdf4bce21a9c.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html
It recommended to the National Assembly that Malema should make an apology in the House by specifically saying sorry to Matojane and the JSC for his line of questioning. The report will have to be adopted by the National Assembly for the sanction to take effect.
Malema is now seeking an order “interdicting and suspending the implementation” of that report, pending his application to review it and set it aside. Among other things, he contends that the possible sanction he may face also “includes my suspension from Parliament for up to a month, including being deprived of my salary”.
He insists that it was “untrue” that he had sought to advance his own interests with his questioning of Matojane, and argues that the JSC “has decided not to sanction me on account of my line of questioning while serving on that body”.
He said:It is only Parliament, through the Report, that seeks such sanction.
“In other words, Parliament seeks to punish me in terms of its Code for my conduct before another body in another capacity, and in circumstances where that body itself did not find my conduct to be objectionable or in breach of its rules and procedures.”
Malema maintains that he takes “no issue with being held accountable”, but contends the organisations which have asked that Parliament investigate his conduct as a JSC commissioner “do so because my participation on the JSC makes it more difficult in certain circumstances for their favoured candidates to be appointed”.
“These individuals and organisations, upset with my being a JSC Commissioner, then resort to baseless claims to have me censured by Parliament,” Malema argues.
The trial against EFF leader Julius Malema and MP Mbuyiseni Ndlozi has been postponed in the Randburg Magistrate’s Court after one of the attorneys displayed Covid-19 symptoms.
“It will not be earth-shattering to the court to know that what these individuals and organisations actually do is weaponise the Parliamentary disciplinary processes – all of which are under the control of the ruling African National Congress, the political opposition of my party – to discipline me.”
The Council for the Advancement of the SA Constitution, among other organisations, has argued that Malema’s conduct as a JSC commissioner has clearly demonstrated that he is unfit for the position. But, as yet, he has only faced censure for his questioning of Matojane.
In 2019, Matojane ordered that the EFF pay Manuel R500 000 for falsely claiming that he oversaw a “corrupt” process to appoint South African Revenue Service commissioner Edward Kieswetter. The Supreme Court of Appeal later ordered that the possible sanction imposed on the party should be determined by another court after a trial process.
During the JSC’s April 2021 interviews, Malema specifically asked Matojane – who had applied for a position at the Appeal Court – why he believed it “appropriate for you to award R500 000 without any of the parties leading any oral evidence” in the case.
Matojane responded that, because the Constitutional Court had yet to rule on Manuel’s attempt to appeal the ruling given by the SCA, it would not be appropriate for him to comment.
The Joint Committee on Ethics and Members’ Interests subsequently found that Malema had “engaged in a matter that concerned him and his political party directly. The matter was before a court of law”.
‘Therein lies the problem’
“The committee further held the view that the member placed himself in a position of conflict in respect of the comments that he made toward Judge Matojane as he represents the National Assembly on the Judicial Services Commission and should not have used the platform for his personal interests.”
Malema was found to be in breach of the ethics code’s provisions which require a member to “act on all occasions in accordance with the public trust placed in them”, and “discharge their obligations, in terms of the Constitution, to Parliament and the public at large, by placing the public interest above their own interest”.slide 1 of 1EFF leader Julius Malema and advocate Dali Mpofu at the interviews for South Africa’s next Chief Justice at Park Hotel in Sandton.Gallo ImagesPHOTO: Gallo Images/Daily Maverick/Felix Dlangaman
The committee rejected Malema’s argument that his free speech rights enabled him to ask Matojane the questions that he did. It said it did “not agree that the question to Judge Matojane falls within the protection of freedom of speech. Also, that the question cannot be protected under the constitutional mandate of the member in his role as a representative of the [National Assembly] on the JSC”.
“The member serves on the JSC as a representative of the NA and should not have entered a question that relates to a case which concerns him personally. He serves on the JSC to further the interest of the public and not his private interest,” the committee found.
Malema argues that he did nothing wrong. He also argues that, because of the ANC’s numerical strength in Parliament, it is “largely a foregone conclusion” that opposition party members will be sanctioned in relation to disciplinary matters bought against them.
“And therein lies the problem: complaints are made against the likes of me by individuals and organisations who prefer certain candidates over others, and these people ask the ANC, my political opposition, and an organisation that also prefers certain candidates over others, to discipline me,” he says.
He said: This is the same ANC that seeks to use constitutional structures to ensure its favoured judges get appointed at the dictates of the ANC’s ‘Deployment Committee’, which effectively acts a shadow government.
“It is against the spectre of this dilemma that my application is brought – I, on one hand, am enjoined to question candidates for judicial office. Yet, when I do so, I am ultimately subjected to the disciplinary powers (even if indirectly) of the ANC, who is not only my political opposition, but where the ANC itself has a partisan interest in who gets appointed as judges.”
In other words, Malema contends that Parliament should not have the legal power to censure the opposition MPs that represent it at the JSC – and argues that, if it is allowed to do so, this would be a “death-knell for constitutionalism” and compromise the independence of the judiciary.
Malema’s urgent application is set down for hearing on 24 February.