The high court in Cape Town has reserved judgment on EFF leader Julius Malema’s urgent application to suspend a parliamentary order that he must apologise for his conduct during the Judicial Service Commission (JSC) interviews last year.

Judgment was reserved to Monday, which is the deadline for Malema to apologise to the National Assembly, the JSC and to judge Keoagile Elias Matojane for his question during the JSC interview process that related to himself, the EFF leader, personally.

Malema approached the high court this week with an urgent application to suspend the implementation of the order that he should apologise, and that he should not be found to be in contempt if he does not apologise by Monday. He said he will be challenging the report of parliament’s joint committee on ethics and members’ interests, which found that he breached the MPs’ ethics code in his questioning of Matojane during the interviews in April.

The ethics committee found that Malema should not have questioned the judge on a matter that personally involved him and his party — a defamation lawsuit against the EFF brought by former finance minister Trevor Manuel.

In his affidavit to the high court, Malema said he believed the ethics committee’s findings were erroneous and that his rights would be severely and unjustly prejudiced if he was bound by the committee’s findings.

“The reason an interdict is necessary to protect my rights is because if I comply with the report, any further rights I would have had in respect of the review (regardless of its merits), would be pre-empted.

“Furthermore, my failure to comply with the report (absent an interdict) also subjects me to a greater risk of punitive sanction by parliament itself (that is being found in contempt).

“The possible sanction includes my suspension from parliament for up to a month, including being deprived of my salary,” said Malema.

Malema argued that parliament doesn’t have the power to discipline him for his conduct at the JSC and that the JSC, being the body whose rules and processes he is alleged to have breached, has decided not to sanction him for his line of questioning.

In response, National Assembly speaker Nosiviwe Mapisa-Nqakula argued that Malema’s application was not urgent as he had known since May 2021 that parliament had received a complaint about his conduct at the JSC hearings.

“Yet the applicant did not  take issue with the competence of parliament to investigate the matter,” she said.

Mapisa-Nqakula added that Malema, his deputy Floyd Shivambu and National Council of Provinces delegate Mmabatho Mokause were all members of the 22-member ethics committee but that Malema and Shivambu have never participated in its meetings since the sixth parliament was installed in 2019. Mokause attended meetings in 2019 and one meeting in November 2021.

“Had the EFF attended the meeting of August 30 2021 (which it ought to have, given that it has three members on the ethics committee), it would have been aware of the recommendation of the ethics committee taken on [that day],” she said.

This was the day the committee adopted a report saying Malema had breached the ethics code and did not act in accordance with the public trust placed in him as a representative of the National Assembly on the JSC when he asked a question to justice Matojane concerning judgment that related to himself, and that he did not place the public interest above his own when he asked questions that related to a court matter in which he was personally involved.

“Any urgency in this matter is entirely self-created. For this reason alone, I respectfully say that this application ought to be struck for want of urgency,” said Mapisa-Nqakula.

She argued that parliament does have the competence and authority to investigate the complaint against Malema and to determine it in terms of the Code of Ethical Conduct and Disclosure of Members' Interests for Assembly and Permanent Council Members as Malema serves on the JSC by virtue of being a member of the National Assembly and is designated as such by the assembly.

“It follows that if the applicant had not been a member of the National Assembly, he would not have been designated to serve on the JSC and would not so serve.

Mapisa-Nqakula said it follows that when serving on the JSC pursuant to a designation to do so by the NA, such person remains while serving on the JSC and therefore remains bound by the code.

The ethical duties of members in terms of the code do not exclude the conduct of MPs and that the code applies to all members irrespective of where their conduct takes place or the other capacity it occurs in.

She said the provisions of the code that Malema was found to have breached applied to him in his capacity as an MP and the National Assembly was enforcing its code against its member.

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