The Cape Town High Court has dismissed EFF leader Julius Malema’s legal challenge to overturn a parliamentary decision that found him to have violated parliament’s code of ethics during a Judicial Service Commission (JSC) meeting.
In April 2021, Malema interviewed Judge Elias Matojane for judicial appointments while serving as a commissioner on the JSC.
He cited a 2019 court decision in which Matojane declared that the EFF must reimburse the former finance minister R500,000 for defamation.
The matter was still before the Constitutional Court at the time of the JSC meeting.
According to the judgment, Malema acknowledged that he had a personal interest in the case but asked Matojane why he had awarded such damages without oral evidence being heard.
The Council for the Advancement of the South African Constitution (Casac) lodged a complaint with parliament, saying Malema had used the JSC platform to advance his personal interests.
Code of conduct breached
The committee on ethics and members’ interests later found that Malema breached its code of conduct.
“In this regard, Casac complained that the applicant ‘obviously [had] a vested interest in undermining judge Matojane by seeking to cast doubt on the ruling and implying some improper motive on the part of the judge’.
“On 20 May 2021, parliament’s acting registrar advised the applicant [Malema] of the complaint and afforded him an opportunity to respond to it within seven working days.
“The applicant reacted on the same day: ‘He is talking rubbish. That’s my official response’,” reads the court judgment.
The court documents reveal that the ethics committee said that by questioning a judge about a case that involved his political party, Malema placed personal interests above the public good.
He also put the integrity of parliament and the JSC at risk.
The committee recommended that Malema apologise publicly in the National Assembly to Matojane and the JSC. Parliament adopted this recommendation in December 2021.
However, Malema refused and instead went to court to challenge this decision.
Right to free speech violated
He contended that he was serving in a different capacity during the JSC meeting rather than as a member of parliament.
Malema believed that the code of ethics should not apply to him in that context.
He further argued that the decision violated his right to free speech, particularly given that JSC members are required to question candidates.
His lawyers also claimed that the ruling was unlawful and went beyond parliament’s powers.
The court, however, rejected Malema’s arguments, saying that MPs are always bound by the ethics code, whether in parliament or outside it.
The court found that MPs should uphold the same ethical standards even when serving on other bodies such as the JSC.
Guilty of misconduct
Parliament found Malema guilty of misconduct and had the right to discipline him, according to the ruling.
The court also said Malema’s right to free speech was not unlimited, especially when it comes to the issue of public trust and judicial independence.
“The applicant did not raise any issue with parliament’s dismissal of Casac’s complaints against him relating to the Zondo commission and Justice Pillay.
“He was content to let the process take its course in relation to these elements. The applicant cannot have it both ways.
“If parliament can let him off the hook in relation to two elements of the complaint, then parliament can discipline him in respect of the third element,” read the court papers.
