ATC211201: Report of the Joint Committee on Ethics and Members’ Interests on the Complaint Against Honourable J. S. Malema, Mp
Report of the Joint Committee on Ethics and Members’ Interests on the Complaint Against Honourable J. S. Malema, Mp
The Joint Committee on Ethics and Members’ Interests (“the Committee”) having considered the complaint against Hon. Julius Malema, MP, reports its finding and its recommendation on penalty, in terms of item 10.7.8.1 of the Code of Ethical Conduct and Disclosure of Members; Interests (“the Code”), as follows.
Mr. P. Naidoo (known as Lawson Naidoo), the Executive Secretary to the Council for the Advancement of the South African Constitution (“CASAC”) (“the Complainant”) directed a complaint to the Committee concerning conduct by Honourable J.S. Malema, MP (“the Member”). The Office of the Registrar of Members’ Interests received the complaint on 19 May 2021 for an alleged breach of the Code on Ethical Conduct and Members’ Interests (“the Code”).
SUMMARY OF THE COMPLAINT
THE COMPLAINT CONTAINTS THREE PARTS
THE ZONDO COMMISSION
The allegation is that the Members’ political party held a press conference on or about 30 March 2021 and the Member said the following;
“The rule of law in South Africa is applied selectively, and sections of the judiciary are being co-opted into this nonsensical direction.
While we respect the Commission of Inquiry into State Capture, we should state here that the direction that the Zondo Commission has assumed is aimed at satisfying certain factional agendas and programme. (sic)
We do not associate with people who have stolen government money and resources for their own benefit, and we do not associate with any faction in any political party.
We, however correctly observe that the Zondo Commission is now assuming a factional agenda and programme aimed at protecting the white capitalist establishment. Zondo is not our god; he is a human being. We are not going to be scared of a judicial dictatorship. We are not going to keep quiet because he is a judge.”
PART 2 AND 3
THE INTERVIEW OF JUDGES AT THE JUDICIAL SERVICES COMMISSION
The Complainant states that the Members’ utterances at the Judicial Service Commission (JSC) interviews of judges makes him unsuitable to represent the National Assembly (NA) on the JSC. In particular the Complainant refers to the interview of two judges, that is, Judge Pillay and Judge Matojane.
Judge Pillay was accused of being a political activist who aligned to a faction led by Minister P. Gordhan.
Judge Matojane was questioned about the judgment in which the EFF was ordered to pay damages in the amount of R500 000 (five hundred thousand rands) to Mr. T. Manuel.
SUMMARY OF RESPONSE BY THE MEMBER
The Member was given an opportunity to respond and responded as follows:
“He’s talking rubbish. That’s my official response.”
THE ZONDO COMMISSION
The Committee considered the fact that the Member made utterances about the Zondo Commission and starts by saying, “ While we respect the Commission of Inquiry”, this shows that the utterances made during the press conference was within the political scope of the Member and his party commenting on the work of the Commission. All political parties express differing views on various matters.
The Committee was of the view that the sentiment expressed by the Member fell within his constitutional protection of freedom of expression. Accordingly, the Committee found that the Member did not breach the Code.
THE INTERVIEW OF JUDGES AT THE JUDICIAL SERVICES COMMIISSION
PART 2: INTERVIEW OF JUDGE PILLAY
The Committee noted that the comments made by the Member toward Judge Pillay was done in the context of the line of questioning. After questioning Judge Pillay on various matters such as her alleged relationship with Mr. Hanekom and Mr. Gordhan and a quotation in a judgment which omitted a reference to the African National Congress, the Member uttered words along the lines of, I put it to you that you are nothing more than a political activist. To this Judge Pillay replied and said, no. The Committee was of the view that this line of questioning was fair and within the mandate of the Member of the National Assembly on the Judicial Services Commission. Accordingly, the Committee found that the Member did not breach the Code.
PART 3: INTERVIEW OF JUDGE MATOJANE
The Committee noted that the Member entered a question to Judge Matojane that related to an award of R500 000 against the EFF in favour of Mr. Manuel in a case in which the Supreme Court of Appeal ordered oral evidence to be led.
The Committee held the view that he Member engaged in a matter that concerned him and his political party directly. The matter was before a court of law. The Committee further held the view that the Member placed himself in a position of conflict in respect of the comments that he made toward Judge Motojane as he represents the National Assembly on the Judicial Services Commisssion and should not have used the platform for his personal interests.
The Committee found that the Member breached the Code. This is in terms of Item 10.1.1.3 read with item 4.1 (4.1.3 and 4.1.4) of the Code which states:
“A Member breaches the Code if the Member contravenes clause 4.1
4.1 Members must –
4.1.3 act on all occasions in accordance with the public trust placed in them;
4.1.4 discharge their obligations, in terms of the Constitution, to Parliament and the public at large, by placing the public interest above their own interest;”.
The Committee found that the Member breached item 10.1.1.3 of the Code read with item 4.1 (i.e. items 4.1.3 and 1.1.4).
The Member was afforded an opportunity to address written representations to the Committee on sanction. A summary of the written representations is set out below. The Member states that-
- he cannot be sanctioned by the Committee in terms of the Code.
- he asked the question in the context of his right to freedom of speech as a Member of Parliament.
- the Constitutional Court holds that freedom of speech is at the heart of our democracy.
- the Committee when deciding on sanction should take into account the fact that by imposing a sanction it could potentially criminalise and outlaw certain kinds of speech.
- the Committee consideration of the sub-judice rule (that the matter was before a court of law) was misdirected. The Supreme Court of Appeal decision in the Midi Television case is quoted to indicate that the sub-judice rule is only operative when there is real prejudice and that the sub-judice rule cannot be used to limit freedom of expression.
- from the above mentioned point, the Complainant should have showed that the line of questioning by the Member would lead to demonstrable and substantial prejudice.
- he stopped the line of questioning and therefore could not become guilty of breaching the sub-judice rule.
- as the SCA has overturned the decision of Judge Motojane, the Member did not ask the questions to advance his own personal agenda.
- he asked the question in his capacity as a Member of the NA on the JSC about a decision of the SCA.
- he was allowed to ask a question about a previous judgment of a judge which the SCA overturned.
- section 58 of the Constitution guarantees the Member’s right to freedom of speech as a representative of the NA.
- he has constitutionally protected rights which the Joint Committee failed to uphold.
COMMITTEE CONSIDERATION ON REPRESENTATION ON SANCTION/ PENALTY
The Committee noted that its reference to the matter being “before a court of law” was perhaps misconstrued by the Member. The reference was not directed at the sub-juice rule. The reference was made in the context of the fact that the Member was a litigant in the matter and the matter was still active. The Committee considered this in the context of items 4.1.3 and 4.1.4 of the Code of Ethical Conduct and Disclosure of Members’ Interests (“the Code”).
The Committee does not agree that the question to Judge Matojane falls within the protection of freedom of speech. Also, that the question cannot be protected under the constitutional mandate of the Member in his role as a representative of the NA on the JSC. The Member serves on the JSC as a representative of the NA and should not have entered a question that relates to a case which concerns him personally. He serves on the JSC to further the interest of the public and not his private interest.
COMMITTEE RECOMMENDATION ON SANCTION/ PENALTY
The Code determines what penalty must be applied.
Item 10.7.7.2 of the Code states:
“in the event of the Committee finding that that a Member is guilty of contravening clauses 10.1.13 … of this Code, the Committee shall not impose any of the above mentioned sanction, but shall recommend any greater sanction it deems appropriate to the House, and the House shall decide the appropriate sanction to be imposed after consideration of the recommendation of the Committee.
The Joint Committee recommends to the House that the following penalty be imposed-
- That the Member enter an apology in the House by specifically apologising to Judge Matojane, and the Judicial Services Commission for his question to Judge Motojane during the interview process that related to the quantum of the R500 000 damages.
REPORT TO BE CONSIDERD
BEKIZWE NKOSI LYDIA MOSHODI
CO-CHAIRPERSONS OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS’ INTERESTS
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