Parliament is unlikely to succeed in pursuing contempt charges against EFF MPs who protested against the attendance of former president FW de Klerk at the state of the nation address (Sona) in February.

Advocate Ncumisa Mayosi, the external initiator (prosecutor) appointed by parliament to lead evidence against the conduct of EFF MPs, said while the presiding officers were lenient to the EFF and did not invoke all the rules at their disposal, there was also a deficiency with the joint rules applying to joint sittings.

The EFF protest caused a delay of more than an hour to the start of the annual address as they, rising on numerous points of order, objected to De Klerk's presence in the joint sitting.

“I'm not convinced that the presiding officers used all the tools at their disposal,” Mayosi told the institution's powers and privileges committee on Friday.

“First of all, the rules are not helpful. If the rules were more explicit, in the same way as the National Assembly, this difficulty would not have been there,” she said.

Mayosi said the strategy adopted by the presiding officers that evening was somewhat “more lenient”, which was to say “you are repeating something, now sit down” and members sat down.

“I am not convinced that this is a very clear-cut case of contempt of parliament or that the prospect of charges of contempt of parliament will succeed,” she added.

While it was a difficult and problematic session in which things did not go according to plan, the presiding officers had certain tools available to bring the session to a place where it could run accordingly, but those tools were not invoked, she said.

Mayosi said if there was a hearing on the matter, the presiding officers would need to explain why they had opted for a rule that deals with directing an MP to discontinue his or her speech instead of the rule that orders an MP to withdraw immediately from the chamber.

“In order for charges of contempt of parliament to have a somewhat reasonable prospect of succeeding, it is important that the presiding officers be able to demonstrate that they used all the tools at their disposal during the particular session, the tools that are given to them in relation to the applicable rules.

“That those tools didn't work and that the members involved deliberately flouted those tools and therefore were contemptuous of parliament. I'm not convinced that this is such a case,” said Mayosi.

She noted that the joint rules setting out what happens in a joint sitting were “somewhat cryptic” and not as explicit as the National Assembly rules.

The National Assembly rules were specific that when a presiding officer made a ruling on a point of order, that ruling was final, including when a member was not permitted to raise a point of order relating to an issue that the presiding officer had already ruled on.

“[They are] specific in dealing with the kind of conduct that was playing out. Unfortunately those are not the rules that apply here.”

ANC MP Grace Tseke conceded that the committee did not have prospects of succeeding if it proceeded with the case.

“The spurious points of orders of the EFF were properly calculated and properly planned,” she said.

“The presiding officers were not decisive in terms of dealing with the members who were contravening the rules of the sitting,” she added.

Committee chairperson Phil Mapulane was also of the view that presiding officers did not use to the fullest the instruments available to them and this would make it difficult to proceed with the case.

He proposed that the deficiency in the joint rules, especially relating to repetition in terms of the points of orders, be corrected and should explicitly say when a point of order had been raised. If people continued to raise the same point of order, they would be contravening the rules.

“It might be the issue that made the presiding officers tread carefully on the day in question,” added Mapulane.

EFF MP Mbuyiseni Ndlozi argued that there was no case to begin with and that what unfolded was “robust debate”, essential in a democratic parliament.

He objected to speaker Thandi Modise referring to the EFF as a party and not to individual MPs to the powers and privileges committee.

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