Malema v Speaker of the National Assembly N.O and Others (2724/2022) [2025] ZAWCHC 213 (21 May 2025)

Case Note

Case Name: Julius Seloma Malema v. The Speaker of the National Assembly N.O. et al
Citation: 2724/2022
Date: 21 May 2025

Reportability

This case is reportable because it involves a judicial review of the Parliament’s decision to discipline a sitting Member of Parliament under the Code of Ethical Conduct and Disclosure of Members’ Interests. The judgment addresses the constitutional limits of Parliament’s disciplinary authority, especially when an MP is serving in dual roles on a commission that has constitutional responsibilities. The significance of the case lies in its examination of the balance between the accountability of elected representatives and the constitutional prohibition against interference with the courts.

The matter raises fundamental questions regarding the scope of parliamentary disciplinary procedures and the extent to which constitutional principles such as judicial independence and accountability should guide such internal processes. Moreover, the decision reflects the increasing need to protect the institutional integrity of both Parliament and the judiciary amid overlapping roles and responsibilities. It also emphasizes the importance of public trust in constitutional institutions.

The case is instructive for public policy debates on the governance of disciplinary measures within Parliament. It also stands as a guiding precedent in interpreting public policy documents alongside constitutional and statutory requirements in matters of governmental accountability and ethical conduct.

Cases Cited

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC)

Legislation Cited

Promotion of Administrative Justice Act 3 of 2000
The Constitution of the Republic of South Africa, specifically sections 165, 178, 195, and 239

Rules of Court Cited

No specific rules of court were expressly cited in the judgment. However, the judgment applied general principles of judicial review and constitutional interpretation which guide the conduct and decision-making of the courts.

HEADNOTE

Summary

This judgment concerns an application for judicial review and setting aside a decision taken by Parliament regarding the disciplining of an MP under the Code of Ethical Conduct and Disclosure of Members’ Interests. The applicant, who also served as a commissioner on the Judicial Services Commission (JSC), contested the disciplinary proceedings initiated by the National Assembly. The crux of the matter was whether his conduct in his role on the JSC fell within the ambit of ethical violations that merited parliamentary discipline.

The judgment explores the constitutional and legal basis for imposing disciplinary measures on MPs, particularly when such measures are applied during activities that fall outside the strictly defined realm of parliamentary work. It delves into the principles underlying the Code of Ethics as a public policy document and examines whether the NA’s handling of the report amounted to a reviewable irregularity. In doing so, the court also considered fundamental principles related to judicial independence and the accountability of state organs.

Furthermore, the court analyzed the interplay between the constitutional mandate to protect the judiciary and the responsibility of Parliament to uphold high standards of ethical conduct among its members. This analysis underscored the tension between internal parliamentary mechanisms and the broader constitutional framework that governs public officeholders.

Key Issues

The judgment addresses whether the National Assembly is competent to discipline an MP who simultaneously serves as a commissioner on the Judicial Services Commission. It examines if the deliberations and report adopted by the NA breached constitutional norms when assessing the application of the Code of Ethical Conduct. Central to the matter is the question of whether an MP’s off-parliamentary activities may attract the same scrutiny as those conducted within the confines of parliamentary work.

A second key issue is whether the NA’s report, specifically the “Report of Joint Committee on Ethics and Members’ Interests on Complaint against Honourable JS Malema, MP,” constituted a reviewable irregularity. The court had to consider if the processes leading to this report met the standards of administrative fairness and transparency prescribed by constitutional and legal principles.

Additionally, the judgment contained an exploration of the broader constitutional challenges related to the separation of powers and the protection of judicial independence. This raised important questions regarding the appropriate limits of parliamentary oversight and the extent to which Parliament can exercise disciplinary power over its members without encroaching on the functions of the judiciary.

Held

The court’s holding reflects a nuanced balance between parliamentary authority and the constitutional requirements of accountability and judicial independence. In its findings, the court confirmed that while the National Assembly retains a role in holding its members accountable, it must do so within the parameters established by the Constitution and the relevant public policy documents.

The judgment made clear that the Code of Ethical Conduct should be interpreted purposively and within its constitutional context. Accordingly, any disciplinary measures must accommodate the dual roles of MPs who are also serving on constitutional bodies such as the JSC. The decision underscored that any procedural irregularities or deviations from established ethical standards render such disciplinary actions reviewable under the Promotion of Administrative Justice Act.

Ultimately, the court held that the NA’s approach in adopting the report was subject to judicial review. The decision reaffirmed that even as Parliament exercises its internal governance processes, it must uphold the principles of fairness, transparency, and adherence to constitutional mandates.

THE FACTS

The facts of the case revolve around an MP who, while holding a dual responsibility as a commissioner on the Judicial Services Commission, was subjected to disciplinary proceedings initiated by the National Assembly. The applicant, Julius Seloma Malema, was questioned for conduct that allegedly breached the Code of Ethical Conduct and Disclosure of Members’ Interests during activities that were not directly related to his parliamentary functions.

In his role as a JSC commissioner, Malema’s conduct came under scrutiny because the Code does not explicitly limit its application to activities strictly within parliamentary work. The selection of MPs to serve on the JSC, as stipulated in the Constitution, further complicated the issue since it raised questions about whether ethical norms apply uniformly regardless of the forum in which an MP operates.

The ensuing disciplinary process, encapsulated in the controversial “Report of Joint Committee on Ethics and Members’ Interests,” became the subject of judicial review. The applicant challenged both the competence of the National Assembly to discipline him in the course of his JSC duties and the procedural fairness of the report’s adoption.

THE ISSUES

The legal issues presented in the case were twofold. The first issue concerned whether the National Assembly had the authority to investigate, discipline, and sanction one of its members for conduct occurring outside the strict confines of parliamentary work. More specifically, the question was whether an MP, while serving as a commissioner on the JSC, remained subject to the same disciplinary standards laid out in the Code.

A second issue was the reviewability of the National Assembly’s adoption of a report that formed the basis of the alleged disciplinary action. The court had to determine if the process by which the report was generated adhered to constitutional requirements and whether it amounted to a procedural irregularity. This inquiry involved a scrutiny of the underlying legislative and constitutional principles governing both the NA’s disciplinary powers and judicial review under PAJA.

Furthermore, the issues extended to a broader constitutional context. The court had to consider whether the actions of an organ of state, in this case the National Assembly, could interfere with the independence of the judiciary. Balancing parliamentary discipline with the constitutional imperatives of judicial independence and accountability formed a crucial part of the legal questions before the court.

ANALYSIS

In arriving at its conclusion, the court conducted a thorough analysis of the ethical and constitutional framework underpinning the case. The reasoning involved a detailed interpretation of the Code of Ethical Conduct and Disclosure of Members’ Interests, examining its language in light of established principles of statutory interpretation as evidenced in cases such as Natal Joint Municipal Pension Fund v Endumeni Municipality and Cool Ideas 1186 CC v Hubbard and another. The court emphasized that the Code is best read through a purposive lens, one that promotes public trust and accountability.

The court’s analysis considered the dual role of the applicant as both an MP and a commissioner on the Judicial Services Commission. In this context, the court underscored the necessity for a balanced interpretation of the Code that does not exempt MPs from accountability merely due to the nature of their additional responsibilities. This approach ensured that ethical breaches would be scrutinized consistently, regardless of whether they occurred during parliamentary work or in other capacities.

Additionally, the court’s discussion highlighted crucial constitutional principles such as the separation of powers and the protection of judicial independence. Emphasizing that no organ of state is permitted to undermine the function of the courts, the analysis affirmed that any deviation by the National Assembly from procedural norms could erode public confidence. This reinforced the need for disciplinary measures to be both fair and constitutionally sound.

REMEDY

In addressing the remedy, the court granted review relief under the Promotion of Administrative Justice Act, thereby setting aside the decision of the National Assembly to discipline the applicant. The remedy was aimed at rectifying the identified procedural irregularities and ensuring that disciplinary actions are conducted in accordance with constitutional standards. The court stressed that its intervention was necessary to preserve the integrity of both Parliament’s internal processes and the independence of the judiciary.

The decision ordered a review of the report that formed the basis of the disciplinary proceedings. This remedial step was intended to provide an opportunity for a more transparent and constitutionally compliant procedure to be adopted by the National Assembly. Through this order, the court sought to restore public confidence in the mechanisms of parliamentary accountability.

Furthermore, the court’s remedy underscored a broader mandate for public officials to operate within both ethical and constitutional limits. By setting aside the contested decision, the court made it clear that no government organ is above the law, and that any disciplinary process must align with the fundamental values of transparency, impartiality, and accountability as enshrined in the Constitution.

LEGAL PRINCIPLES

The judgment establishes that the interpretation of public policy documents—such as the Code of Ethical Conduct—must be conducted in a manner that is both purposive and consistent with the Constitution. This principle is particularly significant when balancing internal parliamentary procedures with the broader accountability mechanisms required under constitutional governance. The court reaffirmed that statutory and non-statutory instruments alike must be read in a way that promotes public trust and adheres to the rule of law.

Another key legal principle articulated is that no organ of state, including Parliament, may take actions that compromise the independence and integrity of the judiciary. The court emphasized that any disciplinary process affecting MPs must not undermine the courts’ ability to function impartially and independently. Upholding this principle is essential to maintaining the delicate balance between government branches and ensuring that judicial authority remains unchecked by external political considerations.

Finally, the case underscores the enduring importance of accountability and ethical standards in public office. It reinforces that members of Parliament are bound by both constitutional obligations and the ethical norms set out in the Code. By applying these standards uniformly, irrespective of the specific roles or functions being performed, the judgment confirms that accountability remains a cornerstone of public administration and that deviations from this standard invite judicial oversight.