Parliament sued for letting corrupt MPs off the hook
Activist group #UniteBehind, which protested outside parliament on Tuesday, has taken parliament's registrar and joint ethics committee to court, challenging the legislature's new code of conduct.
In 2022, the group laid complaints in terms of parliament's code of conduct against six ANC MPs who were implicated in state capture, including grand-scale corruption at the Passenger Rail Agency of South Africa (Prasa). They were Fikile Mbalula, Mosebenzi Zwane, Joe Maswanganyi, Dikeledi Magazi, Sfiso Buthelezi and Dipuo Peters.
In April 2023, #UniteBehind started litigation against the committee for failing to act 'diligently', accusing the committee of 'an unreasonable, and unexplained, delay in handling the complaints'.
The organisation amended its notice of motion in February this year after discovering that an amended code of conduct had been adopted. #UniteBehind claims this was done without public participation and without alerting them.
The case was heard on Tuesday before a full bench in the Western Cape High Court: Judge Lister Nuku, Judge Hayley Slingers and Acting Judge Jonker.
Gregory Solik, the advocate representing #UniteBehind, told the court the new code of conduct was unconstitutional, since it was introduced during the course of the litigation.
#UniteBehind argued that it constituted an 'attempt to circumvent judicial scrutiny'. When the group prepared and filed its final affidavit, it was not informed by parliament that the code of conduct had been amended and implemented.
Solik also argued that if the challenge to the code of conduct is dismissed, then the court should declare the 'no-jurisdiction clause' invalid. This new clause allows MPs to resign to avoid disciplinary action against them.
The amended code states that the Ethics Committee does not have 'jurisdiction' to consider a complaint if the member ceases to be an MP. Also, if the committee is considering a complaint against a former MP, then it may not proceed with the complaint and 'must close the complaint file'.
Solik argued that making this clause invalid would ensure that former MPs implicated in corruption can be held accountable by parliament — parliament could still complete investigations and refer matters to the National Prosecuting Authority. 'It may be a small measure of justice, but that justice can still be enforced,' said Solik.
#UniteBehind further argued that the 'secrecy provisions' of the new code of conduct should be declared unconstitutional. This includes a clause that 'all documents, evidence and information in the possession of the registrar must … remain confidential', as well as another clause stating that meetings considering 'the recommendation report of the registrar will be closed to the public and non-committee members'.
But the respondents argued that #UniteBehind was trying to 'revive a case that was dead', said advocate for parliament Zinzile Matebese.
About 100 #UniteBehind supporters marched from the Cape Town Civic Centre to parliament in support of the organisation's court case. Several hundred more people joined the protest at parliament.
In an answering affidavit, Anthea Gordon, the registrar of members' interests in parliament, said that #UniteBehind's amendment to its notice of motion, challenging the new code of conduct, was 'disingenuous' and 'an abuse of the court process'. Parliament asked the court to reject #UniteBehind's request.
The respondents argued that the process to amend the code started in 2022 and culminated with the adoption of the amended code by the National Assembly in May 2024. They added that it 'was never adopted in haste as suggested by the applicants', nor was it kept secret.
Matebese argued that confidentiality of the information clauses was important as it 'might result in unintended consequences for the whole committee' if it were removed. The confidentiality clauses were necessary to protect MPs' information and the information of their spouses' affairs, which is protected under other legislation such as the Protection of Personal Information Act.
In his closing statement, Solik noted that the initial complaints were made because of the 'total abdication of responsibility by Parliament' to address the rot at Prasa. He encouraged the court 'not to lose sight of what the complaints were about', which is that people are 'subject to violence on a daily basis when they use public transport'.
Judge Nuku reserved judgment.
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