Parliament did not follow right process to suspend EFF MPs, high court hears

The parliamentary committee that suspended EFF MPs from sittings did so without guidelines on how to sanction offenders and without following the required process of allowing the party to present its case.

EFF president Julius Malema, his deputy Floyd Shivambu and MPs Marshall Dlamini, Sinawo Thambo, Mbuyiseni Ndlozi and Vuyani Pambo were found guilty of contempt of parliament by the powers and privileges committee and given a 30-day suspension without pay.

This was after the MPs reportedly stormed the stage at the 2023 state of the nation address (Sona) demanding President Cyril Ramaphosa’s resignation.

The Cape Town high court on Wednesday heard arguments by Malema and his MPs after they asked the court to review the procedure that led to their suspension.

Representing the EFF, Adv Kameel Premhid said the parliamentary rules and the Powers, Privileges and Immunities Act did not provide guidelines on how to regulate sanctions for parliamentary offences.

Nor were the right processes followed for the accused MPs to be cross-examined and present their defence before the committee, Premhid said.

“They failed to provide sufficient guidelines for the exercise of discretion insofar as sanctions are concerned.”

“If we look at the penalty provisions, there is absolutely no guideline as to what an appropriate penalty could be, how the adjudication function is supposed to happen, whether other remedies are appropriate, how much weight is to be attached to mitigating factors and aggravating factors.

“There is no guidance at all in terms of how the penalty power, which is a substantial power, is to be exercised by the committee,” Premhid said.

He argued there could be tyranny under majority party rule as it could lead to potential abuse. “Parliament can discipline its own members, that is fine. But the absence of internal checks and balances to ensure it is not done along partisan lines because the power lies with the majority in the committee, is where the potential abuse comes,” he said.

In addition, the statement made by the only witness who gave evidence to the committee was just a technical opinion of the application of the rules and not a recommended sanction.

“The committee never met the onus of proving the charges because the only witness came on a technical capacity of the rules,” he said.

Adv Adiel Nacerodien, representing parliament, said the lack of set guidelines was to ensure flexibility as parliament was not a court that required cross-examination and evidence.

Instead, sections of the constitution provided that parliament was mandated to self-regulate.

“We are not dealing with a court here. What they are trying to do is create a court system, discovery, cross-examination of witnesses ... They don't sit as a court of law. The National Assembly, as a house, cannot practically or procedurally make findings of facts the same way as the courts do it.

“Flexibility is important and it is necessary with regards to sanction and it promotes fairness ... It is hard to regulate via guidelines ... you don't want to overstep and dictate to parliament, a separate arm, how to regulate a process. The court's functions come afterwards... [parliament] is mandated to self-regulate — from section 57 and 58 of the constitution,” he said. 

The matter is expected to continue on Thursday.

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