Parliament accuses activists of abusing court process
#UniteBehind is challenging the constitutionality of Parliament’s new Code of Conduct
Members and supporters of #UniteBehind outside Parliament in August 2022, where they handed over an official complaint to the Joint Committee on Ethics and Members’ Interests. Archive photo: James Stent
- #UniteBehind is challenging the constitutionality of Parliament’s new code of conduct.
- The organisation argues that the code was passed in secret and, like the previous code, lets corrupt MPs off the hook when they resign.
- Parliament’s registrar of members’ interests Anthea Gordon, in an affidavit, accuses #UniteBehind of abusing court processes by changing the focus of its court case from the old code to the new code.
Activist organisation #UniteBehind has been accused by Parliament of “trying to breathe life into a dead case” for continuing its legal challenges against the Code of Conduct for parliamentarians.
#UniteBehind has since 2022 been engaged in legal action against Parliament’s Ethics Committee for not holding to account parliamentarians who were implicated in state capture.
The organisation took Parliament to court in 2023. Initially #UniteBehind’s court case was aimed at the existing Code of Ethics - in particular the secrecy provisions in the code and the fact it let erring MPs off the hook if they resigned.
But in February this year, the organisation submitted an amended notice of motion to the Western Cape High Court, challenging the constitutionality of the new Code of Conduct which, it claimed, had been adopted in “haste” just days before the 2024 general election, without the required public participation and without alerting #UniteBehind to it.
In an affidavit, Anthea Gordon, Parliament’s registrar of members’ interests, on behalf of the speakers of the National Assembly (NA), National Council of Provinces (NCOP) and the chairpersons of the Ethics committee, claims that #UniteBehind is not entitled to change its “cause of action” and attack the new code which was adopted in May 2024.
Gordon stated that #UniteBehind’s attempts to change its litigation is “disingenuous” and an abuse of the court process.
She said #UniteBehind knew that its challenge to the old code had become “moot” and was unwinnable.
She denied that the new code had been adopted hastily, or secretly, saying that the review of the old code had started in 2022. It was published in Parliament’s announcements, tabling and committee reports in March 2024, adopted by the NCOP on 25 April 2024 and the NA on 9 May, she said.
“It was never adopted in haste and was never kept a secret from anyone… Although it is colloquially referred to as a new code, it was just an amendment of the old code and only had a direct effect on the Members of Parliament and no direct effect on members of the public. Accordingly, the public involvement, through representation by Members of Parliament, was reasonable and sufficient.
“Parliament, when adopting rules and codes that seek to regulate its internal affairs, is afforded by the Constitution some discretion to determine the nature and extent of public involvement required, on a case-by-case basis.”
Gordon added that the code had some necessary secrecy provisions to protect personal information.
The “Mbalula escape clause”
In his replying affidavit, #UniteBehind director Zackie Achmat said the contention that the code only affects MPs was self-serving.
“Public participation is not a mere formality but a fundamental aspect of participatory democracy. It is clear that the public were not consulted. The new code, as it stands, undermines public trust and confidence in Parliament as members are able to escape liability for their actions.
“We have come to refer to this amendment colloquially as the ‘Mbalula escape clause’ because it literally justifies Parliament’s failure to hold former Minister of Transport and now secretary-general of the ANC Fikile Mbalula and former chair of the parliamentary committee on Transport Dikeldi Magadzi, accountable for their roles in state capture corruption, mismanagement, maladministration and nepotism,” he said.
“The committee and Parliament continue to protect MPs who are corrupt or unethical from public scrutiny. This, and insisting on a secret complaints process, cannot be justified in an open and democratic society.”
Achmat said the secrecy provisions of the old code which were challenged initially, remain in the new code.
He said appropriate mechanisms such as redaction could be used to “balance interests” and that blanket secrecy undermined public trust and accountability.
“The interests of justice demand that the matters are heard,” he said.
“UniteBehind asks the court to affirm participatory democracy and public involvement in order to rescue Parliament from its folly in this matter.
“We are confident that the court will see the benefit to Parliament in preventing MPs from escaping justice. Parliament cannot conduct its procedures to hold our representatives accountable in secret, once again, that is bad for society and the institution.
“UniteBehind does not only see this as a matter of justice to hold some of those who assisted in the virtual destruction of the Passenger Rail Agency of South Africa (PRASA) accountable. But we need to ensure that Parliament uses its oversight powers over MPs and organs of state to help build a society based on democratic values, social justice and fundamental rights,” Achmat said.
The hearing has been set down for 7 August.
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