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- Julius Malema and five other EFF members who stormed the stage during Cyril Ramaphosa's SONA were found guilty of contempt of Parliament.
- Parliament's Powers and Privileges Committee recommended that they be suspended for one month without remuneration and ordered to apologise to Ramaphosa, Parliament and the public.
- The six have now sought to urgently intervene in a more wide-ranging constitutional attack on Parliament's disciplinary processes.
EFF leader Julius Malema and the five other party members found guilty of contempt of Parliament for storming the stage during this year's State of the Nation Address (SONA) have launched urgent legal action to interdict the punishments recommended against them from being carried out.
Papers filed at the Western Cape High Court reveal that Malema, EFF deputy president Floyd Shivambu, secretary-general Marshall Dlamini, Vuyani Pambo, Mbuyiseni Ndlozi and spokesperson Sinawo Thambo launched an urgent legal bid to interdict their potential punishment last week Friday – before the often disruptive parliamentary hearing of the case against them had even happened.
In separate litigation, the EFF wants the high court to order that the National Assembly rules and Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 are unconstitutional "to the extent that they fail to provide sufficient guidelines and safeguards necessary to protect Parliament's process for disciplining Members of Parliament".
Malema and his fellow stage-storming MPs want to be allowed to intervene in that case, which is due to be heard on 4 December, so that they – and the EFF MPs who face possible sanction for disrupting a parliamentary hearing when President Cyril Ramaphosa refused to answer their Phala Phala questions – can ask that disciplinary processes against them be stalled, pending the outcome of that legal action.
According to Malema, Parliament's disciplinary processes are tainted by the ANC's majority position in the National Assembly, and fail to "sufficiently curtail the opportunities for the ruling party to abuse its majority and punish its political opposition regardless of the lack of merit".
He added:
But, while the EFF leader has presented this litigation as a genuine attempt to ensure that all MPs accused of wrongdoing are fairly treated, his conduct in the stage storming hearing has also arguably demonstrated his party's deep animosity for processes that demand accountability from its MPs.
On Monday, Malema and his fellow EFF MPs appeared intent on ensuring that Parliament's Powers and Privileges Committee would not be able to continue with its investigation into the stage storming, which Malema insists was a peaceful protest. He contends that it only became violent as a result of the conduct of National Assembly Speaker Nosiviwe Mapisa-Nqakula.
After Malema and his cohort failed in their application for the hearing to be postponed, he turned his ire against Parliament- appointed initiator, senior counsel Anton Katz.
READ | ‘We are being prosecuted by a white man’: Malema lashes out at hearing into EFF stage storming
"No white man will persecute me and we are not going to accept to appear before this white man and this kangaroo court," said Malema.
"This outcome has already [been] determined even before by yourself and the DA. He is not a man of integrity and we will never be persecuted by a white man.
"Some of you [committee members] will not come back to this Parliament [after the 2024 elections], especially you, chairperson, and many others, you are going to watch Parliament from home. Whatever decision you take, we will still be in Parliament, whether that white man you chose likes it or not, we will be in Parliament."
Less defiant in court papers
In court papers, however, Malema appears far less defiant – and argues that "contempt of Parliament is the most serious offence that can be committed by an MP in its precinct" and carries "some of the most serious sanctions available to MPs".
This is why, he says, the constitutionality of the rules and legislation that govern the processes that determine whether an MP is guilty of contempt must be fair and constitutional.
"[I]f this court finds that the NA [National Assembly] rules are unconstitutional for their failure to allow a charged MP to subpoena or summon a witness, this will have a direct impact on the intervening applicants' [Malema and the stage storming MPs] defence and how they will present their evidence," he added, in reference to the inquiry process that ultimately found the group guilty.
"At the moment, we are unable, as of right, to subpoena or summon witnesses in our defence, whilst the committee has such a power.
"The inequities between ourselves and the committee are clear: whilst the committee has awesome power to make out a case, we are deprived of an essential right to do the same..."
READ | State of Indignation: Malema says EFF's storming of the SONA stage was a peaceful protest
Beyond their legal-technical attack on the process that ultimately found them guilty of contempt of Parliament, Malema and his fellow stage stormers appear to have struggled to defend their conduct at the 9 February 2023 SONA sitting.
At the time, EFF MPs had raised several points of order and Mapisa-Nqakula ordered them to leave the chamber. While walking out, some of them stormed the stage, prompting an instant reaction from heavily armed police.
In a submission that failed to convince the Powers and Privileges Committee, Malema said some of the security members who he said had assaulted EFF members were armed with guns.
"No case was made out that the conduct in issue amounts to misconduct as per the charges. No case was made out about the threats experienced by the Speaker, the chairperson of the National Council of Provinces, and the president, and no case was made out that there had been a breach of the rules.
"We submit that the committee should find the EFF not guilty on the evidence presented and on the common cause facts," Malema said.
That did not happen.
Should Malema and his fellow MPs fail in their bid to interdict Parliament from sanctioning them, they face being suspended from 1 February until 29 February 2024 – meaning they won't be able to attend the SONA in 2024.
