By Lehlohonolo Lehana.
The Economic Freedon Fighters (EFF) has petitioned the Western Cape High Court to declare the powers and privileges committee rules of the National Assembly illegal and unconstitutional.
Party leader Julius Malema, his deputy Floyd Shivambu, secretary-general Marshall Dlamini and four others were suspended without pay for 30 days after being found guilty of contempt of Parliament.
In February 2023, the group stormed the stage during President Cyril Ramaphosa’s State of the Nation Address.
The Western Cape High Court on Wednesday heard arguments by EFF legal team after the party asked the court to review the procedure that led to their suspension.
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.
Adv Kameel Premhid representing EFF, said the parliamentary rules and the Powers, Privileges and Immunities (PPI) 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.
Parliament, however, is of the view that the EFF’s case is inconsistent with the facts and is internally contradictory.
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.
The Western Cape High Court reserved judgment.