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In the High Court of South Africa
(Western Cape Division, Cape Town)
Case No: 22223/23
In the matter between:
NYIKO FLOYD SHIVAMBU Applicant
and
THE CHAIRPERSONS OF THE JOINT COMMITTEE
ON ETHICS AND MEMBERS INTERESTS First Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES Third Respondent
THE REGISTRAR OF MEMBERS’ INTERESTS Fourth Respondent
Heard: 13 December 2023
Delivered (electronically): 01 February 2024
JUDGMENT
LEKHULENI J
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Introduction
[1] This is an urgent application in which the applicant seeks an interdict against
the respondents. The application is divided into two parts, Part A and Part B. In Part
A, the applicant seeks an order to the effect that pending the finalisation of Part B of
this application, the decision of the Joint Committee on Ethics and Members' Interests
('the Ethi cs Committee') to accept the fourth respondent's report and
recommendations and the decision of the National Assembly to adopt the report of the
Ethics Committee on the complaints against the applicant, be suspended pending the
hearing of Part B.
[2] In Part B, the applicant seeks an order that the National Assembly’s decision to
adopt the report of the Ethics Committee on a complaint preferred against the
applicant be reviewed and set aside. The applicant also seeks an order in Part B that
the report of the Ethics Committee against the applicant be reviewed and set aside
and that the second respondent be directed to refer the complaint to the fourth
respondent for proper investigation. This court is only enjoined to decide Part A of the
applicant’s application.
[3] The applicant's application is premised on the fourth respondent's investigation
of two complaints levelled against the applicant. Pursuant to that investigation, the
fourth respondent submitted her report to the Ethics Committee which, in turn,
compiled a report in which it found that the applicant breached the Code of Ethical
Conduct and Disclosure of Members' Interests ('the Ethics Code'). The Ethics
Committee submitted its report to the National Assembly with a recommendation to
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the house to impose a penalty of a reduction of 9 days salary against the applicant.
On 28 November 2023, the National Assembly adopted the Ethics Committee's report
and subsequently issued a penalty against the applicant in terms of the
recommendations of the Ethics Committee. The implementation date of the penalty
was scheduled to take effect on 15 December 2023.
[4] The applicant brought this application urgently, contending that the adoption of
the fourth respondent's report by the Ethics Committee and the National Assembly has
exposed him and the political party that he represents, the EFF, to immediate and
detrimental harm, which will not be reversible by a court order at a hearing in due
course. As a result, he sought an order in Part A that the decision by the two
parliamentary institutions to accept the fourth respondent’s report be suspended.
Background Facts
[5] This case involves two complaints lodged against the applicant by two
members of Parliament. On 16 October 2018, Ms Karlsen, a member of Parliament,
as she then was, lodged a complaint ('the first complaint') against the applicant with
the Ethics Committee. In her complaint, she alleged that the applicant breached the
Parliamentary Code of Conduct by not declaring specific interests or benefits that the
applicant allegedly received from VBS Mutual Bank through his brother's company,
Sgameka Projects.
[6] In addition, Ms Karlsen alleged that the applicant breached the Parliamentary
Code by not declaring a financial conflict of interest that arose due to the alleged
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benefits or interests when the matters concerning VBS Mutual Bank were discussed
and decided by Parliament's Standing Committee on Finance. This complaint was
premised on a newspaper article in the Daily Maverick of 11 October 2018 in which it
was alleged that the EFF and its Deputy President Floyd Shivambu benefited
financially from the VBS Mutual Bank scandal. The said article also alleged that the
applicant received about R10 million rand through Sgameka Projects owned by his
younger brother, Brian Shivambu, and that the EFF allegedly received R 1.3 million
through VBS Bank. This complaint alleged that the applicant did not declare his
financial interest for 2015, 2016, and 2017 and should have recused himself from the
Standing Committee on Finance meetings, which considered the matter.
[7] On 17 October 2018, the fourth respondent, the acting Registrar of members’
interests, informed the applicant of the said complaint and invited the applicant to
provide her with a written response to Ms Karlsen’s allegation within seven working
days. The fourth respondent also notified the applicant that if he did not provide the
requested written response, the Ethics Committee would investigate the complaint
against him.
[8] According to the applicant, when he received the fourth respondent's letter, to
his knowledge, the report on which Ms Karlsen's complaint was predicated had been
taken on judicial review. On 21 November 2018, the applicant responded to the fourth
respondent's office and expressed his discomfort in engaging o n a report that he
believed was the subject of ongoing legal proceedings. Notwithstanding, he explained
to the fourth respondent that he had not received any payments from VBS and, thus,
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he did not have any conflict of interest relating to VBS Bank, as alleged in Ms Karlsen's
complaint.
[9] The applicant further reiterated that he did not receive any money from VBS
Bank or have any conflict arising from VBS-related matters. He appealed to the fourth
respondent to await the outcome of the judicial review against the report underpinning
Ms Karlsen's complaint. The applicant also invited the fourth respondent to commence
with their investigation process should any issue remain unresolved by the judicial
review application.
[10] Pursuant thereto, and in response to the applicant's assertions, the fourth
respondent consulted with the department at the South African Reserve Bank to
confirm whether a judicial review had indeed been filed. The fourth respondent was
advised that only Mr Msiza had applied to review a select part of the report pertaining
to himself. Upon perusal of Mr Msiza's notice of motion, the fourth respondent avers
that she noted that it related only to the adverse findin g against Mr Msiza. The fourth
respondent subsequently informed the Ethics Committee that the matter that formed
the focal point of the complaint before it was not sub-judice. In the interim, Parliament
was dissolved shortly before the elections in May 2019, and the investigation into this
complaint did not proceed.
[11] Meanwhile, on 17 October 2019, Mr John Steenhuisen, a member of
Parliament, also complained to the Ethics Committee ('the second complaint'). Mr
Steenhuisen alleged that the applicant breached the Parliamentary Code of Conduct.
This complaint (the second complaint) was premised on news reports in the Daily
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Maverick dated 6 and 12 October 2019, which alleged that the applicant benefited
from payments made by Lawrence Mulaudzi into the account of a company called
Grant Azania (Pty) Ltd owned by the applicant's brother , Mr Brian Shivambu, which
funds were then utilized to pay expenses related to the applicant's wedding.
[12] The report also alleged that the applicant failed to disclose the receipt of money
from Sgameka Projects, Brian Shivambu, in his 2017 and 2018 disclosure of member's
interests. In addition, the report alleged that the applicant utilised the savings of
vulnerable VBS depositors and municipalities funneled through Sgameka Projects to
fund his extravagant lifestyle and political aspirations.
[13] Similarly, on 21 October 2019, the fourth respondent provided the applicant
with a copy of Mr Steenhuizen's complaint and again afforded him an opportunity to
respond to the allegation within seven working days of receiving the letter, failing which
the Et hics Committee would investigate the complaint. In the sixth Parliament, the
Ethics Committee decided to revive Ms Karlsen's first complaint, which had laid
dormant, and to combine both complaints against the applicant. The Ethics Committee
accordingly instructed the fourth respondent to investigate the complaint against the
applicant.
[14] On 12 July 2021, the fourth respondent recommended to the Ethics Committee
that the provisional liquidators of VBS be subpoenaed in terms of section 14(2)(a) read
with section 14(2)(b) of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act 4 of 2004, to provide information to the Ethics Committee
which related to the applicant. The Ethics Committee agreed, and the provisional
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liquidator of VBS, Mr Anooshkumar Rooplal, subsequently provided an affidavit, which
included a bank statement revealing payments to the applicant.
[15] The affidavit by the provisional liquidator revealed that the applicant received a
total of R180,000 from Sgameka Projects, computed as follows:
18 August 2017 – R100 000
24 August 2017 – R30 000
26 August 2017 – R50 000
[16] As none of the above-mentioned payments were declared in terms of the Ethics
Code, on 17 April 2023, the fourth respondent recommended to the Ethics Committee
that a finding be made on the available evidence in terms of the Ethics Code that the
applicant b reached item 10.1.1.1 of the Ethics Code for failing to comply with the
requirements of the provisions for disclosing financial interest in respect of the R180
000 that was paid to him in 2017 by Sgameka Projects (Pty) Ltd.
[17] On 17 April 2023, the Ethics Committee deliberated on the matter and found
that the applicant breached the Ethics Code in failing to comply with the requirement
to disclose his financial interests. On 25 April 2023, the Ethics Committee's decision
was communicated to the applicant by email. The applicant was also notified that the
committee intended to deal with the issue of the penalty/sanction at its next meeting,
and it afforded the applicant an opportunity to present written representations on this
issue.
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[18] The applicant averred that neither the fourth respondent nor the Ethics
Committee invited him or his brother, Brian Shivambo, to tender any explanation for
the three payments. Furthermore, the applicant asserted that the fourth respondent
and the Ethics Committee never provided him with the documents they sought to rely
on in considering the allegations against him to afford him an opportunity to assess,
challenge, or respond to them. The applicant asserted that he was denied participation
in the investigation, even though it was against him. According to the applicant, this is
the fundamental premise of his application.
[19] The applicant further stated that on 14 June 2023, he wrote to the fourth
respondent and explained that he did not receive her letter of 25 April 2023. In
response, the fourth respondent forwarded him the said correspondence on the same
day. Applicant aver s that he was “ horrified” to receive this correspondence in which
the fourth respondent disclosed to him for the very first-time what information she and
the Ethics Committee had relied upon in their investigation against him.
[20] According to the applicant , the correspondence of 25 April 2023 was not an
opportunity for him to explain the three payments or to argue why he should not be
found guilty of breaching the E thics Code. Instead, the fourth respondent wrote to
inform him that the Ethics Committee had only considered that he did not disclose the
three payments fro m Sgameka Projects, and that the committee had already found
him guilty of breaching the Ethics code.
[21] On 19 June 2023, the applicant responded to the fourth respondent's letter and
explained that the funds ( mentioned above) his brother paid into his bank account
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were a personal transaction between him and his brother. The applicant further
explained that his brother extended a loan to him. In support of this assertion, his
brother deposed an affidavit in which he confirmed that the three payments were made
pursuant to a loan he made to the applicant. The applicant asserted that he used the
funds that his brother loaned him for payments towards his wedding expenses.
[22] In that correspondence, the applicant appealed to the fourth respondent to
place his explanation before the Ethics Committee and to request the Ethics
Committee to reconsider its decision against him. Notwithstanding, the fourth
respondent and the Ethics Committee did not heed the applicant's request. Instead,
on 2 October 2023, the fourth respondent wrote to the applicant and informed him that
the Ethics Committee had met and decided to recommend to the National Assembly
that a penalty of 9 days reduc tion in the applicant's salary be imposed. The report of
the Ethics Committee was subsequently tabled on 2 October 2023 and was adopted
by the National Assembly on 28 November 2023. A penalty of 9 days' salary reduction
was authorised against the applicant.
[23] According to the applicant, the conduct of the investigation against him was
grossly unfair as he was denied the right to know what allegations he was facing prior
to the decision of his alleged guilt. More so, even if the fourth respondent and the
Ethics committee were under the impression that the payments were a gift of some
kind, the applicant asserted that the Ethics Code equally did not require its disclosure
in this case, as the payments were from his brother. From the applicant's point of view,
item 9.3.6 of the Ethics Code expressly excludes gifts from a family member from the
categories of gifts that should be disclosed.
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[24] The applicant thus sought an urgent interim order in this court, which suspends
the Ethics Committee's decision to accept the fourth respondent's report and the
National Assembly's decision to adopt the Ethics Committee's report against him.
Pursuant to the grant of that order, the applicant believes that his political party, the
EFF, will enjoy a free and fair opportunity to participate in the elections without the
burden of a report that is likely to be set aside on review. Meanwhile, the respondents
implored the court to strike the matter from the roll as they submitted that this matter
is not urgent, and that this application has no merit.
Submissions by the Parties
[25] At the hearing of this matter, Mr Sangoni, the applicant's Counsel, submitted
that the decision taken by the Ethics Committee, which the National Assembly
adopted, impacts negatively on the applicant and his political party. Mr Sangoni
submitted that the conclusion of the Ethics Committee, which the National Assembly
adopted, has a broader impact as it carries a stigma of corruption. Counsel further
submitted that this matter is urgent, and that the applicant's cause of action crystallized
on 28 November 2023, when the National Assembly adopted the decision of the Ethics
Committee.
[26] Mr Sangoni contended that the Ethics Committee and the National Assembly's
decision are causing the entrenchment of a false public narrative that the EFF's deputy
president is being penalized for failing to disclose VBS funds to parliament. This
narrative, the contention proceeded, will have a detrimental and irreversible impact on
the applicant and the EFF. Counsel further submitted that the decision of the Ethics
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Committee and the National Assembly is unlawful as it is procedurally and
substantively unfair. To this end, Counsel contended that the fourth respondent failed
to allow the applicant to respond to the allegation that he was found guilty of. The
allegation also does not constitute a breach of the Ethics Code.
[27] If the respondents are permitted to uphold and execute the decisions, despite
the pending review application, Counsel argued, the decision s will retain their
legitimacy and are reasonably likely to influence voters in the imminent national
elections. According to Mr Snagoni, the problem with the decision of these bodies
transcends the deduction of the applicant’s salary . Counsel implored the court to
suspend the decision of Parliament pending the review application in Part B of this
application.
[28] Mr Jamie, the respondents' Counsel, submitted that there is no urgency in this
matter and that the urgency alleged by the applicant is self -created. M r Jamie
submitted that the relief sought by the applicant in this matter is fundamentally
misconceived, and the decision of the two bodies of Parliament cannot be suspended
as the events have already occurred. When the applicant launched the proceedings
on 6 December 2023, it was already impossible to give effect to the relief sought in
Part A.
[29] Expanding further on this argument, Mr Jamie asserted that the Ethics
Committee had already taken a decision on 2 October 2023 to recommend to the
National Assembly that the applicant's salary be docked by 9 days. This was the end
of the process for the Et hics Committee, and at which stage it was rendered functus
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officio in respect of the applicant. As such, Counsel contended that this court cannot
suspend the decision of the Ethics Committee at this stage.
[30] Supplementing the contention above, Counsel contended that the National
Assembly decided to adopt the report and the recommendation of the Ethics
Committee to dock the applicants' salary by 9 days, on 28 November 2023. At that
point, it became functus officio. Given that the National Assembly has already taken
the decision, this court cannot suspend the decision of the National Assembly.
[31] The only matter that could be notionally suspended, Counsel argued, was the
implementation of the sanction, namely the docking of the applicant's salary for 9 days.
However, this differs from the relief the applicant seeks in his notice of motion. Mr
Jamie implored the court to strike the matter off the roll with costs for want of urgency
or to dismiss the application with costs, including the costs of two Counsel.
Issues to be decided.
[32] From the above discussion, this court is enjoined to determine whether the
applicant was correct in bringing this application on an urgent basis as envisaged in
Rule 6(12)(b) of the Rules of Court. If the matter is urgent , whether the applicant has
made out a case for granting an interdict against the respondents pending the review
application in Part B of this application.
Applicable Legal principles and Discussion
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[33] As discussed above, Mr Jamie took issue with the urgency of this application.
Counsel argued that this matter is not urgent and must be struck from the roll. It is trite
that where an application is brought based on urgency, the rules of court permit a court
to dispense with the forms and service usually required and dispose of it as it deems
fit. (Rule 6(12)(a)). Where the application lacks the requisite element or degree of
urgency, the Court can, for that reason, decline to exercise its powers under Rule
6(12)(a). See Commissioner, South African Revenue Services v Hawker Air Services
(Pty) LTD 2006 (4) SA 292 (SCA) para 9. In other words, where the facts indicate that
the urgency is self -created, an applicant will not be entertained, and the application
will be struck from the roll. (see W.M.W v S.W (26912/17) [2023] ZAGPJHC 710 (15
June 2023)).
[34] In terms of Rule 6(12) of the Uniform Rules of Court, an applicant is, in law,
required to set out the circumstances which justify the hearing of an application on an
urgent basis and the basis on which it contends that it would not obtain substantial
redress at a hearing in due course. Thus, Rule 6(12)(b) requires two things of an
applicant in an urgent application: firstly, the applicant must explicitly state the
circumstances that he avers render the matter urgent and, secondly , why he claims
that he would not be afforded substantial redress at a hearing in due course. (Luna
Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977
(4) SA 135 (W) at 137F; Karino Homeland Distribution (Pty) Ltd v Commissioner for
the South African Revenue Service (21279/2023) [2023] ZAWCHC 329 (27 December
2023)) at para 16.
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[35] The applicant's grounds of urgency in this application are set out in paragraphs
61 to 70 of his founding affidavit. In summary, the applicant avers that the National
Assembly's action against the applicant for complaints which arose about five years
ago comes at a critical time in the country's political space. The applicant contends
that politicians and their political parties are campaigning in preparation for the
imminent national elections. Furthermore, the adoption of the report by the National
Assembly gave rise to an immediate mainstream media and social media tirade
against the applicant and the EFF based on findings that the applicant contravened
the Ethics Code requirements to disclose the funds.
[36] The applicant further contends that the decision and the penalty which was
imposed against the applicant will affect the public perception of the applicant and the
EFF and inevitably influence how some people vote in the elections. If the impugned
decisions are suspended, their legitimacy will be maintained, and they will not affect
the applicant's good name until this court assesses their lawfulness in Part B. To this
end, the applicant implored this court to exercise its discretion to hear this matter
urgently and grant the relief sought in the notice of motion.
[37] I have considered the submissions of the parties, and I am of the view that this
matter is not urgent. If anything, the urgency that the applicant pleaded was self -
created. The following reasons bear out this finding. The fourth respondent notified the
applicant on 25 April 2023 of the decision made by the Ethics Committee, which found
the applicant guilty of contravening the Ethics Code of Conduct. I am mindful that the
applicant contended that he did not receive this correspondence. However, on 19 June
2023, the applicant became aware of the Ethics Committee's decision. The
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correspondence of 25 April 2023 was brought to his attention. Despite his knowledge
of the Ethics Committee's conclusion, the applicant took no action then to challenge
the decision in court notwithstanding his allegation that it impacted his reputation and
that of his political organisation.
[38] Notably, on 3 October 2023, the applicant's political party released a media
statement advising that the applicant intends to take Parliament to court to overturn
the Ethics Committee's “ irrational and opportunistic conclusion and sanction” .
Furthermore, on 05 October 2023, the applicant's legal representative wrote a letter to
the fourth respondent in which they apprised the fourth respondent of the alleged
irregularities that allegedly underpinned the fourth respondent and the Ethics
Committee's investigation. In that correspondence, the applicant's legal representative
demanded that the applicant be provided with certain documents by 10 October 2023,
failing which the applicant would launch urgent proceedings. The applicant's attorney
sought an urgent undertaking from the National Assembly that it would suspend all
further processes related to the complaint against the applicant by the close of
business on 6 October 2023, failing which he would launch urgent court proceedings.
[39] On 11 October 2023, the fourth respondent provided the applicant with all the
documents the applicant requested. The fourth respondent also dismissed the
applicant’s concerns regarding the unfairness of the investigation. Notwithstanding,
the applicant took no action to impugn the decision of the Ethics Committee. Instead,
the applicant took two months to bring this application on an urgent basis with
truncated timelines and on the same grounds set out in the letter of 05 October 2023.
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[40] In my view, if the applicant wanted to bring this application urgently, since the
decisions of the two Parliamentary institutions allegedly damaged his reputation, the
applicant could have done so immediately upon receipt of the registrar's rejection of
his plea on 11 October 2023. The applicant filed his urgent application on 06
December 2023, exactly two months after he threatened to institute an urgent court
application. His application was predicated on the same grounds enunciated in his
correspondence of 05 October 2023.
[41] Crucially, the applicant approached the court on the same allegations as
contained in his attorney's letter dated 05 October 2023. As correctly stated by the
respondent's Counsel, the urgency was clearly self-created. The applicant was aware
of the finding against him at least since 14 June 2023. The applicant did nothing to
challenge the decision in court despite various threats made in correspondences as
explained above. The decision to approach this court on an urgent basis, based on
the same grounds that were in effect three months prior to the institution of the
application, was ill-conceived.
[42] Upon perusal of the applicant's application, the only issue that I thought could
support his case for urgency was the imminent implementation of the sanction.
However, at the hearing of this application, Mr Sangoni informed the court that this
was not the basis of the applicant's application. The court was further informed that
the applicant is mainly concerned with the damage to his reputation and that of his
political organisation. As a result, the applicant believes that he will not be afforded
substantial relief at the hearing in due course as the investigation and findings of the
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Ethics Committee are detrimental to him and the EFF and will harm their preparations
for the coming elections.
[43] This submission, in my view, lacks validity and is unsustainable. It is important
to note that the EFF is not a participant in this case. This court cannot be expected to
issue an order in favour of or against an individual or organization that is not cited or
involved in these proceedings.
[44] Furthermore, the applicant alleges that the foundational premise of his urgent
application is that he was allegedly not afforded an opportunity to tender an
explanation in respect of the payments received, that he was not provided with the
documents relied on for making the finding, and that he was not afforded an
opportunity to challenge or respond to the allegations against him. The respondents,
conversely, disputed that the applicant was not afforded an opportunity to respond
when the investigation was done. The respondents referred the court to the relevant
documents forwarded to the applicant's personal email address relating to the
investigation of the matter. In my view, the issue pertaining to the alleged non-
compliance with the audi alteram partem principle is a matter that will be dealt with in
Part B of this application.
[45] I am further of the view that the urgency the applicant pleaded in his application
is self-created. The applicant knew of the decision of the Ethics Committee in June
2023 and threatened in October 2023 to bring an urgent application but failed to do
so. The applicant could not provide a plausible explanation why the application was
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filed in December 2023, six months after receiving the decision of the Ethics
Committee and two months after initially planning to file this urgent application.
[46] In my view, the matter was brought on an urgent basis in unwarranted
circumstances. More so, I am of the view that the applicant will be afforded substantial
redress in due course when Part B of the application is heard.
[47] Given all these considerations , this matter falls to be struck off the roll.
Furthermore, nothing was presented to warrant a departure from the norm that costs
follow the event.
Order
[48] In the result, the following order is granted:
48.1 The application is struck off the roll and the applicant is ordered to pay the costs
of this application, including the costs of two Counsel where so employed.
__________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
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APPEARANCES
For the Applicant: Mr F Sangoni
Instructed by: Ian Levitt Attorneys
75 Maude Street
Sandown
Johannesburg
For the Respondents: Mr Jamie SC
Mr M Vassen
Instructed by: The State Attorney
22 Long Street
Cape Town