IN THE HIG H COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )

Case number : 2724 /2022

In the matter between :

JULIUS SELLO MALEMA Applicant

and

THE SPEAKER OF THE NATIONAL ASSEMBLY N.O. First respondent

THE CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES N.O. Second respondent

MOJI LYDIA MOSHODI MP N.O. Third respondent

BEKIZWE SIMON NKOSI MP N.O. Fourth respondent


JUDGMENT DELIVERED ON 21 MAY 2025


THE COURT :

Introductio n

1. Does a member of Parliament leave his obligations under Parliament’s code of
ethics by the door (like a discarded jacket) when he goes off on business other
than parliamentary work?

2. This is an application1 for the judicial review and setting aside of a decision taken
by the respondents (“Parliament”) in considering whether t o discipline the
applicant – a member of Parliament - under the Code of Ethic al Conduct and
Disclosure of Members’ Interests for Assembly and Permanent Council Members
(“the Code”) . Counsel confirmed in the course of oral argument that the relief
was sought both under the Promotion of Admin istrative Justice Act 3 of 2000
(“PAJA ”), and on the basis of the principle of legality.

3. Two fundamental questions arise from these proceedings.2

4. The first question is whether it is competent for the National Assembly (“NA”)
which, in te rms of the Constitution, designates six persons from amongst its
members to serve on the Judicial Services Commission (“JSC”), to investigate,
discipline , and sanction such members by virtue of their conduct while serving on
the JSC . This arises specifically in the context of members of Parliament (“MPs”)
who continue to hold the position of MPs while serving on the JSC.

5. If the first question is answered in the affirmative, the second question is whether
in so acting in the present case, the NA committed a reviewable irregularity in its
adoption of a report titled “Report of Joint Committee on Ethics and Members'
Interests on Complaint against Honourable JS Malema, MP ”.

6. The parties hold directly opposing views on each of the se questions . This matter
therefore raises constitutional issues pertaining to the measure of accountability
that may be demanded from MPs who serve on the JSC, and the role of the NA
in ensuring that those whom it designates to the JSC conduct themselves in a

1 The application was launched in two parts: Part A sought an urgent interim interdict, and Part
B sought the review relief that is the subject of this judgment.
2 In the answering papers the respondents took a non -joinder point, which was abandoned
during argument. Nothing more needs to be said about it.
lawful and credible manner.

7. We proceed to set out the relevant legislative framework which underlies these
issues . The facts will be dealt with thereafter , and the grounds of review
assessed within the particular factual and legal context.

The relevant legislative framework

8. Item 1 of the Code defines the “ public interest ” as “ an outcome which affects any
right of the public, public finances or the public good ”.

9. Item 2.1 of the Code describes the purpose and scope of the Code as providing
“a framework of reference for Members of Parliament when discharging their
duties and responsibilities” . It “outlines the minimum ethical standards of
behaviour that South Africans expect of public representatives, including
upholding proprietary, integrity and ethical values of their conduct.” The Code
aims, in terms of Item 2.3 thereof, “to create public trust and confidence in public
representatives and to protect the integrity of Parliament ”.

10. The Code defines a “conflict of interest ” as “ a situation in which a member
contrary to the obligation and duty to act for the benefit of the public exploits the
relations hip for personal or pecuniary benefit ”.

11. The members to which the Code apply are simply defined as “ a member of the
Assembly or Permanent Council Member ”.

12. The s tandards of ethical conduct expected of members are cast in broad
language in Item 4.1 of the Code:3

“Members must:
4.1.1 abide by the principles, rules and obligations of th is Code ;
4.1.2 by virtue of the oath or affirmation of allegiance taken by all elected

3 Emphas is added.
members, uphold the law;
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
interests;
4.1.5 maintain public confidence and trust in the integrity of Parliament and
thereby engender the respect and confidence that society needs to
have in Parliament as a representative institution; and
4.1.6 in the performance of their duties and responsibilities, be committed to
the eradication of all forms of discrimination. ”

13. A member of Parliament breaches the Code if he or she contravenes, inter alia,
clause 4.1 of the Code.4 Item 10.1.1.3 provides that a member breaches the
Code if such member “ contravenes clauses 4.1, 5.1, 6.1, 6.2, 6.3, 7.1, 8.1, and
9.19.4 and 9.19.5 of this Code … ”

14. There is no express provision in the Code that limits its application to specific
instances, such as where MPs are engaged in parliamentary work. For present
purposes, therefore, the Code itself does not state that it does not appl y to MPs
when they are dealing with matters falling outside of their particular duties as
MPs, such as where they are sitting as commissioners on the JSC.

15. Whether such an exclusion must be inferred depends on the proper interpretation
of the provisions of the Code within the relevant constitutional framework . The
principles underlying the interpretation of documents as set out in Natal Joint
Municipal Pension Fund v Endumeni Municipality5 are by now trite. In the more
particularised context of statutory interpretation, the Constitutional Court in Cool
Ideas 1186 CC v Hubbard and another6 articulated these principles as follows:

“A fundamental tenet of statutory interpretation is that the words in a statute
must be given their ordinary grammatical meaning, unless to do so would

4 See Item 10.1 .1.3 of the Code.
5 2012 (4) SA 593 (SCA) para 18.
6 2014 (4) SA 474 (CC) para 28.
result in an absurdity. There are three important interrelated riders to this
general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must b e properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is,
where reasonably possible, legislative provisions ought to be
interpreted to preserve their constitutional validity. This proviso to the
general principle is closely related to the purposive approach referred to
in (a). ”

16. Whilst the Code is not a statute, it is a public policy document of considerable
importance, and we are bound to consider it within this now established
framework.

17. We agr ee with the submission by counsel for Parliament that there are two
fundamental constitutional principles that loom large in the se proceedings .

18. The first principle is that no person or organ of state may interfere with the
functioning of the courts : “Organs of state, through legislative and other
measures, must assist and protect the courts to ensure the independence,
impartiality, dignity, accessibility, and effectiveness of the courts ”.7 Section 165 of
the Constitution confirms that the judicial authority of the Republic is vested in the
courts, which are independent and subject only to the Constitution and the law.

19. The second principle is that Parliament is bound by section 195(1) , rea d with
section 195(2), of the Constitution in respect of the “basic values ” of (amongst
others) a high standard of professional ethics ,8 the provision of services
impa rtially, fairly, equitably , and without bias , 9 and the value of accountability
transpa rency .10

20. Reverting to these proceedings specifically, o ne of the spheres in which MPs

7 Section 165(4) of the Constitution.
8 Section 195(1)(a) of the Constitution.
9 Section 195(1)(d).
10 Section 195(1)(f) and (g).
may become involved by virtue of their office, and which falls outside of pure
parliamentary work. is the selection of judges to the high and appellate courts in
South Africa via the JSC . The JSC is not an ordinary portfolio committee of
Parliament, but an entity established by the Constitution.11

21. The composition of the JSC is prescribed by section 178 of the Constitution.
More particularly, section 178( 1)(h) of the Constitution provides that the JSC
consists, inter alia , of “six persons designated by the National Assemb ly from
among its members, at least three of whom must be members of opposition
parties represented in the Assembly ”. In the present matter, the applicant was
one of the opposition party members designated by the NA under section
178(1)(h) to serve on the JSC for the purposes of its hearing during April 2021.12

22. As we have indicated, s ection 165(4) of the Constitution o bliges all organs of
state to assist and protect the courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.13 The authority of courts and
obedience of their orders is the very foundation of a constitutional order founded
under the rule of law. It depends on public trust and respect for the courts. The
NA is an organ of state as contemplated by paragraph (b)(i) of the definition in
section 239 of the Constitution.14 It thus carries the responsibility to assist and
protect the courts , and not to take steps which will undermine their
independence, impartiality, dignity, accessibility , and effectiveness .

23. As to the criteria to be considered when designating an MP to the JSC, the Court
was of the view that the “ overarching p urpose of the JSC's composition is to
safeguard judicial independence and to ensure public confidence in the

11 Democratic Alliance v Hlophe and others 2025 (1) SA 169 (WCC) para 64.
12 The NA’s decision to designate six of its members to the JSC amounts to administrative
action under PAJA : Democratic Alliance v Hlophe supra para 57.
13 Democratic Alliance v Hlophe supra para 61.
14 Section 239: … ”organ of state” means -
(a) any department of state or administration in the national, provincial or local sphere of
government; or
(b) any other functionary or institution -
(i) exercising a power or performing a function in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation,
but does not include a court or a judicial officer;… ”
appointment process of judges. ”15

24. The Constitutional Court has previously held16 that, “ [s]ince courts play a crucial
role in our constitutional democracy, without doubt the JSC's function of
recommending appointments to the senior judiciary is of singular importance.
Bearing in mind the importance of thi s functi on, I do not think it unreasonable to
expect that those that bear the responsibility of nominating, designating or
electing individuals for membership of the JSC will take their responsibility
seriously and identif y people who are suitably qualified for the position ”.

25. How, then, do these principles come to play in the present matter?

The factual background

26. The facts underlying this application are essentially common cause. It all started
with an urgent application instituted against the Economic Freedom Fighters
(“EFF”) in the Gauteng Local Division, Johannesburg.

Manuel v Economic Freedom Fighters and others

27. In a judgment17 delivered on 30 May 2019 by Matojane J, it was ordered as
follows:

“1. The allegations made about the applicant, Trevor Andrew Manuel, in
the statement titled 'The EFF Rejects SARS Commissioner Interview
Process' dated 27 March 2019, are defamatory and fa lse.
2. It is declared that the respondents' unlawful publication of the
statement was, and continues to be, unlawful.
3. The respondents are ordered to remove the statement, within 24 hours,
from all their media platforms, including the first and third re spondents'
Twitter accounts.

15 Democratic Alliance v Hlophe supra para 63.
16 Helen Suzman Foundation v Judicial Service Commission 2018 (4) SA 1 (CC) para 37.
Emphasis supplied.
17 Manuel v Economic Freedom Fighters and others 2019 (5) SA 210 (GJ) at 230F -231A .
4. The respondents are ordered, within 24 hours, to publish a notice on all
their media platforms, on which the statement had been published, in
which they unconditionally retract and apologise for the allegations
made about th e applicant in the statement.
5. The respondents are interdicted from publishing any statement that
says or implies that the applicant is engaged in corruption and
nepotism in the selection of the commissioner of the South African
Revenue Service.
6. The r espondents are ordered jointly and severally to pay damages of
R500 000 to the applicant.
7. The respondents are ordered jointly and severally to pay the applicant's
costs on an attorney and client scale. ”

28. The Supreme Court of Appeal (“SCA”) subsequently considered an application
for leave to appeal against the High Court’s order . On 17 December 202018 it
refused leave on the majority of the grounds advanced. The SCA did , however,
grant leave i n respect of the award of damages on motion . This was because
established procedure in claims for unliquidated damages was that they be
brought by action . Any development of that procedure to allow such claim to be
brought on motion had been inadequately motivated , and the ramifications of any
such d evelopment required careful consideration .19 As to the alternative relief
sought - referral of the quantum of damages to oral evidence - such was
appropriate in the circumstance of the limited material in the affidavits going to
quantum , and the High Court 's brief reasoning thereon.20 As the issue of
retraction and apology was inextricably entwined with the question of damages, it
was appropriate that th at issue too be referred to oral evidence.21

The JSC meeting of 15 April 2021

29. The applicant was a member of the JSC when it sat on 15 April 2021 to interview,

18 The judgment of the SCA is reported as Economic Freedom Fighters and others v Manuel
2021 (3) SA 425 (SCA).
19 Economic Freedom Fighters v Manuel supra paras 27, 92, 108, 111, and 113.
20 Economic Freedom Fighters v Manuel supra paras 114, 116, and 119.
21 At para 130.
amongst others, Justice Matojane , who was applying for a position in the SCA . At
the time that the JSC meeting was underway, there was a pending application
before the Constitutional Court in rel ation to the SCA’s order. The Chief Justice at
the time (who sits on the Constitutional Court) was chairing the JSC meeting on
the day.

30. The impugned exchange between the applicant and Justice Matojane on 15 April
2021 was reported as follows on News24:22

“A 'reluctant' Julius Malema, a member of the Judicial Service
Commission , on Wednesday questioned Supreme Court of
Appeal (SCA) judge candidate Elias Matojane over his decision
to award Trevor Manuel R 500 000 in damages in a defamation
case against the EFF.
Matojane, in 2019, found against the EFF, ruling that the party
pay the former finance minister R500 000 for claiming he
oversaw a "corrupt" process to appoint South African Revenue
Service commissioner, Edward Kieswetter.
The EFF took the case to the SCA, which referred the
determination of the possible sanction to another court. There
now has to be a trial to decide the award.
Manuel took the case to the Constitutional Court and wants the
cost order reinstated. Ma lema, who is also the leader of th e
EFF, admitted he was 'reluctant ' to ask the question because
he was an interested party in the matter.
Malema said: The quantum was referred back to oral evidence.
How did you arrive at the conclusion that it was appropriate for
you to award R 500 000 wi thout any of the parties leading any
oral evidence?
“I know that Manuel is now appealing to the Supreme Court. but
the SCA has referred that matter back to you and said there
must be oral evidence led - so that whatever figure you arrive at

22 https://www.news24.com/News24/reluctant -malema -confronts -sca-judge -candidate -over-
efftrevor -manuel -defamation -case -20210415 . Emphasis supplied.
is on the basis of that oral evidence."
Matojane, who is applying for a seat on the SCA, answered:
"Mark Twain said nothing spoils a good story than the arrival of
an eyewitness. This matter is pending before the Constitutional
Court and I don't think the chief just ice [Mogoeng Mogoeng] is
interested in my musings, so my simple answer to you, Mr
Malema, is that I cannot second -guess the decis ion that is
going to be made by the Constitutional Court .
''The matter is now out of my hands. I have said what I had to
say and, if the SCA has upheld me, we don't know what the
chief justice is going to say. I am constrained to be seen as
second -guessing what the decision of the Constitutional Court
might be."
Malema responded: "Fair enough.'"

31. That was the end of the exch ange.

The complaint, and the Ethics Committee’s findings

32. On 19 May 2021 Mr P . Naidoo , the executive secretary of the Council for the
Advancement of the South African Constitution (“CASAC”) lodged a complaint23
about the applicant to Parliament’s J oint Committee on Ethics and Members'
Interests (“the Ethics Committee”) . There were three elements to the complaint,
namely (a) statements made by the applicant at a press conference on 30 March
2021 concerning the Zondo Commission; (b) comments made by the applicant
during an interview of Justice Pillay in the JSC; and (c) relevant to the present
case, the comments made by the applicant in the course of interviewing Justice
Matojane in the JSC. In this regard, CASAC complained that the applicant
“obviously [had] a vested interest in undermining Judge Matojane by seeking to
cast doubt on the ruling and implying some improper motive on the part of the
judge” .

23 Under Item 10.2.2.2 of the Code : “Any person or body may submit a complaint to the office of
the Registrar concerning a breach of the Code, as contemplated in clause 10.1 of the Code
by a Member. The Complaint may be in the form of a sworn affidavit or an affirmation stating
the facts upon which the Complaint is based. ”

33. On 20 May 2021 Parliament’s Acting Registrar24 advised the applicant of the
complaint and afford ed him an opportunity to respond to it within 7 working
days.25 The applicant reacted on the same day: “ He is talking rubbish. That's my
official response. ”

34. The Ethics Committee convened a meeting on 30 August 2021 at which a video
clip of the JSC interview of 15 April 2021 , with the exchange between Justice
Matojane and the applicant , was shown . After deliberation, the Ethics Committee
accepted a draft report tabled by the Acting Registrar . In the draft report, the
Acting Registrar recommended a finding that the a pplicant had breached Item
10.1.1.3, read with Items 4.1.3 and 4.1.4 , of the Code ,26 as he had not act ed in
accordance with the public trust placed in him as a representative of th e NA on
the JSC when he asked a question to Justice Matojane concerning a judgment
that related to the political party to which he was affiliated.27 The draft report
recommended that it be found that the applicant had not place d the public
interest above h is own when he asked questions that related to a court matter in
which he was personally involved.

35. We have indicated earlier that CASAC’s compliant to Parliament comprised three
elements. The Committee ultimately found that the comments made by the
applic ant in respect of the Zondo Commission fell “within the realm of politics as
politicians express different sentiments on the Zondo Commission”. The
Committee found further that the questions in relation to Justice Pillay were in the
interests of the public. These two elements of the complaint were therefore
dismissed.

36. The engagement with Justice Matojane stood, however, on a different footing.
The Committee found that the applicant’s comments to Justice Matojane in this
respect constituted a breach o f Item 10.1.1.3, read with Item 4.1 (in particular ,
Items 4.1.3 and 4.1.4) of the Code. The Committee Report put the issue as

24 From the Office of the Registrar of Members’ Interests.
25 Under Item 10.2.2.6 of the Code.
26 Quoted above.
27 The finding was made under item 10.1.1.3 of the Code.
follows :

“The Committee noted that the member entered a question to Judge Matojane
that related to an award of R500 000 against t he 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 the Member engaged in a matter that
concerned his 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
Matojane as he represents the National Assembly on the Judicial Services
Commission and should not h ave used the platform for his personal interests.
FINDING
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 4.1.4).”

37. The applicant was informed of the Ethics Committee’s finding on 9 September
2021 , and he was invited to provide written representations on an appropriate
sanction by 7 October 2021.

38. On 4 October 2021 the applicant's attorneys of record responded by requesting
various documents and information relating to the complaint and the manner in
which it had been processed by the Ethics Committee. The Committee
responded on 7 October 2021 , and indicated too that the applicant's deadline for
submission of written representations on sanction would be extended to 13
October 2021 .

39. The applicant's representations were submitted on 14 October 2021 . The
applicant contended that no sanction should be imposed against him in respect
of the complaint as such sanction would be in contravention of his constitutionally
protected rights. In the alternative, he contended that “should the Committee
proceed to impose a sanction, such s anction should be the least punitive
measure, commensurate with this Committee's appreciation of the need to
protect MPs freedom of speech. ”

40. Notably , in the applicant' s representations it was expressly stated that the
question to Justice Matojane had been asked by the applicant “in his capacity as
a member of the National Assembly on the JSC, and the question asked was the
view of the Supreme Court of Appeal ”. We return to this aspect later in this
judgment.

41. On 22 November 2021 the Ethics Committee adopted the following
recommendation in respect of sanction:28

“That the Member enter an apology in the House by specifically apologizing to
Judge Matojane, and the Judicial Services Commission for his question to Judge
Matojane during the interview process that related to the quantum of R500 000
damages .”

42. The Ethics Committee ’s report and recommendations served before the NA on 7
December 2021 . The report and recommendations were adopted, with 193
members of the NA in favour , 64 members abstain ing, and 34 members vot ing
against. The Speaker has explained, on behalf of Parliament in the answering
papers in these proceedings, the reasons for the NA’s agreement with the Ethics
Committee’s stance.

43. The first reason was the fact that the EFF (of which the applicant is a member)
was a party to the litigation before Justice Matojane and the SCA.

44. Second, the question that the applicant asked Justice M atojane was: "How
did you arrive at the conclusion that it was appropriate for you to award R500
000 without any of the parties leading any oral evidence?”. Justice Matojane
had however already addressed the reasons for his order – he had done so in
his judgment. There was accordingly no legitimate purpose to be served by
the applicant asking this question after judgment had been given and in

28 Under item 10.7.7.2 of the Code: “ … in the event of the Committee finding that a Member is
guilty of contravening clauses 10.1.1.3 or 10.1.2 of this Code, the Committee shall not impose
any of the above sanction[s], but shall recommend any greater sanction it deems appropriate
to the House, and the House shall decide on the appropriate sanction to be imposed after
consideration of the recommendation of the Committee. ”
circumstances whe re the SCA had already determined the appeal.

45. Third, the applicant was aware that a further appeal was pending in the
Constitutional Court, and that the Chief Justice would be one of the judges
hearing the appeal.

46. Fourth, the applicant himself acknowledged his "reluctance" to pose the
question because, as he explained, " somehow I am involved" . The applicant
therefore said that he would deal with the question at "a high level. This
notwithstanding, the applicant ventured into a very specific question
concerning Justice Matojane’s reasoning.

47. Fifth, given the absence of any legitimate basis for the question posed by the
applicant, and given that it concerned litigation in which the EFF was a
litigant, the purpose of the que stion was undeniably to cause public
embarrassment to Justice Matojane, and to utilize an extra curial platform for
an interrogatory in respect of a judgment in which the EFF was party. This
was done in circumstances where the other party to the pending li tigation did
not serve on the JSC, and had no such opportunity to engage Justice
Matojane on his judgment.

48. On these facts, the NA’s view was that the applicant had used his role as a
member of Parliament on the JSC to interrogate a sitting judge on a matt er
where he had ruled against the EFF. According to Parliament , it is significant
that the applicant did not question Justice Matojane on aspects of his
judgment which were confirmed by the SCA. The applicant thus put his own
interest (and that of his part y) above the public interest , and failed to act in
accordance with the public t rust placed in him.

49. On 26 January 2022, therefore, the Speaker addressed correspondence to the
applicant , advising him of the adoption of the report and recommendations. The
adoption of the report meant that the House agreed to impose the following
sanction on the applicant :

“That the Member enter an apology in the House by specifically apologizing to
Judge Matojane an d the Judicial Services Commission for his question to Judge
Matojane during the interview process that related to the quantum of the R 500
000 damages. '

50. In keeping with the sanction agreed to by the House, the applicant w as requested
to take steps by no later than 28 February 2022 to ensure compliance with the
decision.

51. On 15 February 2022, the applicant launched these proceedings , seeking (in Part
A of the notice of motion ) an order interdicting and suspending the
implementation of the Committee ’s report pending the finalization of the review
relief sought in Part B of the notice of motion. On 25 February 2022 the interdict
was granted ,29 suspending the implementation of the sanction pending the
outcome of the review application.

The grounds of review advanced by the applicant

52. The applicant seeks two substantive orders at this stage. The first is an order
reviewing, declaring as unlawf ul, and setting aside the Committee Report. The
second is an order r eviewing, declaring as unlawful , and setting aside the NA's
adoption of the Committee ’s report on 7 December 2021.

53. The applicant identifies three decisions as the subject of the challenge , namely
the Committee’s finding that the applicant had acted in breach of the Code , the
Committee’s sanction, and the NA’s adoption of the Committee’s report . Scrutiny
of the papers reveals, however, that all of the grounds of review essentially relate
to the finding. The applicant’s stance is that, if this Court reviews and set aside
the finding, the sanction and adoption automatically falls to be reviewed and set
aside. The converse is, of course, then also true: if none of the grounds of review
relating to the finding succeed, it follows that no reviewable irregularity has been
demonstrated in relation to the sanction or the adoption. Counsel confirmed at

29 Reasons for the order were delivered on 20 April 2022.
the hearing of the application that this approach may be followed.

54. This manner of considering a review challenge raised in relation to different
decision s is obviously not appropriate in all cases, but it does work in the present
case because of the nature of the review grounds raised by the applicant. The
five grounds of review upon which the applicant relies are the following:

54.1. The finding was made under an error of law because the Committee and
the NA were of the view that the applicant “represented” the NA on the
JSC, whereas he had in fact been “designated” by the N A to the JSC. In
oral argument this was the ground of review upon which particular
emphasis was placed.

54.2. The finding was ultra vires the Committee's power s, particularly in that the
Committee usurped the JSC’s own powers of discipline and control.

54.3. The Committee disregarded relevant facts and circumstances when
making the finding, more particularly the fact that when the applicant
asked the impugned question, “there was no conceivable basis on which
he could have gained a personal benef it”.

54.4. The finding is unconstitutional because the applicant was effectively
sanctioned for having exercised his right to free speec h.

54.5. Lastly, at the time when the Committee made the finding it was of the view
that the presence of the Chief Justice on the JSC panel meant that the
JSC was a court of law. It therefore, according to the applicant, took an
irrelevant consideration into account.

55. The recurring thread throughout the applicant’s argument of these grounds of
review is that the Code did not apply to the applicant while he was engaged in
the activities of a commissioner on the JSC. The Committee should therefore
have found, from the outset, that the applicant’s conduct could not be
investigated and sanctioned unde r the Code.

56. We – the Court - put ou r cards on the table at this juncture, because it simplifies
the discussion of these review grounds. T he key question in this application is
whether the Code applies to MPs except when they serve on the JSC. In our
view, the answer to this question must be “no”.

57. This is cle ar from a proper interpretation of the extracts of the Code to which we
have already referred , in particular the purpose and scope of the Code . It is clear,
too, from the broad statement of the standards of ethical conduct imposed on
members, and the fact that, in terms of clause 10.1.1.3. of the Code, an MP
breaches the Code if he or she contravenes (amongst others) clause 4.1. All
indications in the Code are that the Code applies to MPs ir respective of where
their conduct takes place or in what other capacity it occurs. Clause 4.1.3, for
example, applies on "all occasions", and clause 4.1.4 requires a discharge of
obligations in terms of the Constitution to Parliament “and the public at lar ge”.
This is indicative of the Code having a wider rather than narrower ambit of
application . The legal framework within which MPs operate therefore allows for
the NA to investigate, discipline and sanction MPs, in whichever capacity they
operate. That t his is the case follows from the plain language of the Code, as
well as upon a contextual and purposive interpretation thereof.30

58. It follows that i n the absence of any indication that the Code ceases to apply to
MPs when they serve on the JSC, the Committee and the NA derive their powers
to investigate, rule on , and sanction the applicant from the Code . They were, in
fact, obliged to do so under the Code.

59. We consider the applicant’s grounds of review in this context.

The first ground of review: e rror of law

30 See Kubaya v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC) para 18: “ It is well
established that statutes must be interpreted with due regard to their purpose and within their
context. . . . legislation must be understood holistically and, it goes without saying, interpreted
within the relevan t framework of constitutional rights and norms. However, that does not
mean that ordinary meaning and clear language may be discarded, for interpretation is not
divination and courts must respect the separation of powers when construing Acts of
Parliament .”

60. As indicated , section 178(1) of the Constitution provides for the composition of
the JSC. It requires (in terms of section 178(1)(h)) that the NA “ designate ” to the
JSC six persons from among its members, at least three of whom must be
members of opposition parties re presented in the NA.

61. The Committee remarks as follows in its report : “… 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 personal ly. He serves on the JSC to further the interest
of the public and not in his private interest. “

62. The applicant seeks to emphasis e the difference in meaning between the
concepts of “represent ” and “ designate ” to establish this ground of review. He
argues that the Committee’s and the NA’s reference to the applicant as
representing the NA at the JSC is an incorrect foundational premise. The
applicant is designated to the JSC by the NA, but does not represent it. As such,
when the applicant acts in his capacity as a JS C commissioner, he is not
performing any of his parliamentary duties , and does not act as an agent of
Parliament in representing it. He wears a different hat, so to speak.

63. According to the applicant, he can therefore not be subject to the disciplinary
standards imposed on him by the Code, which only applies to his conduct when
he is engaged in his parliamentary duties.

64. This argument has no merit , and it is not necessary to undertake an extensive
exercise in the interpretation of section 178(1) to decide the issue . The purpose
of section 178(1) is simply to cater for the composition of the JSC, and to identify
the pool of per sons from which commissioners may be drawn. It does not seek
to regulate or interfere with any of the powers or obligations that may intrinsically
attach to the members of that pool by virtue of their positions – in the present
matter, as MPs.

65. To “design ate” means to nam e or appoint someone to a position , whereas
“represent ” refers to acting on someone’s behalf. This distinction however is of no
moment on the facts of this matter. This is because, although the a pplicant is
designated by the NA to serve on the JSC , he remains an MP. He serves on the
JSC by virtue of being a member of the NA. As such, the duties imposed on the
applicant by the Code continue to find application while he serves on the JSC ,
even though he acts independently while ther e. The effect of the NA's
enforcement of the Code against the applicant was not to direct the applicant as
to who he should be supporting on the JSC, but rather that he should adhere to
the rules of engagement as set out in the Code.

66. In any event, neither the Committee’s nor the NA's decision is based on any
assumption that, because the applicant is elected to the JSC by the NA, he
serves on the JSC by way of a mandate -style appointment. He was not expected
to “represent ” Parliament’s views on the J SC. The Speaker confirms, in the
answering affidavit delivered on Parliament’s behalf, that the issue of a mandate -
style appointment (or any other appointment apart from a simple designation
under section 178(1) of the Constitution) had no bearing on the N A's decision (or
the Committee' s decision).

67. That the underlying and essential theme of his position as MP was not lost on the
applicant becomes clear when regard is had to what the applicant himself had to
say (in his representations to the Committee for the purposes of sanction)
regarding the capacity in which he served on the JSC in his representations to
the Committee for purposes of sanction.

68. He contended that the line of questioning complained of by CASAC was done in
accordance with his parliamentary mandate, "as Parliament's representative on
the Judicial Services Commission" . The posing of the question was an exercise
of an MP’s – particula rly an opposition MP’s – freedom of speech. When the
applicant questioned Justice Matojane; he did not do so in his personal capacity,
with a view to advancing his own personal agenda, but, instead, “ the question
was asked by the member in his capacity as the representative of the National
Assembly on the JSC , and the question asked was the view of the Supreme
Court of Appeal” . Thus, “… as the JCEMI [the Committee] alluded to, the
Member is a representative of the National Assembly on the JSC , therefore
section 58 of the Constitution guarantees him the right to freedom of speech, and
immunizes him from any punishment for anything said in the pursuance of his
political and constitutional role” .

69. The applicant thus contended, in his rep resentations, that the failure of the
Committee to recognize this, w ould result in it assailing the applicant’s right as
MP to fulfil his parliamentary mandate. In the representations, the applicant did
not regard himself as having worn any hat at the JSC other than that of an MP.

70. We return to the fact that the relevant question is not whether the applicant
represents Parliament as an institution on the JSC, but rather whether the NA
was entitled to enforce the Code against the applicant.

71. We have already indicated that, in our view, and o n a proper interpretation of the
Code, t he ethical duties of MPs in terms of the Code do not exclude the conduct
of MPs outside of Par liament. On the contrary, all indications in the Code are that
the Code applies to all MPs irrespective of where their conduct takes place or in
what other capacity it occurs.

72. In conclusion on this ground of review: the applicant is not subject to the Code by
virtue of the Committee (and the NA) having noted that he is a representative of
the NA on the JSC . The applicant is subject to the Code because, on its plain
wording, it applies to him. This is so because he remains an MP while he serves
on the JSC.

The second ground of review: t he finding was ultra vires the Committee's power s

73. The applicant argues , in advancing his second ground of review, that the
Committee made the finding against him in terms of the Code when, “in fact, the
complaint is against him in his position as a Commissioner of the JSC. ”

74. The problem with this s cenario, so the applicant submits , is that the Co mmittee
made the finding despite not having the power to do so. In making the finding,
the Committee usurped31 the role of the JSC, as it was the JSC that was t he
appropriately placed body to deal with the applicant’s impugned conduct. This is
because the JSC, in terms of section 178(6) of the Constitution, is entitled to
determine its own procedures, which includes disciplinary procedures that it
might wish to enforce against a JSC commissioner. The JSC, i n turn, does not
have the power to enforce the Code against the applicant.

75. According to the applicant, t he Committee's approach deprived him of an
opportunity to challenge any findings against him on all fronts within the context
of where the offensive co nduct is said to have occurred , which was the JSC. By
targeting the applicant through the enforcement of the Code , Parliament has
made the matter political.

76. If one accepts, as we do, that the Code continued to apply to the applicant
despite (and during the exercise of) his role on the JSC, this ground of review
clearly does not withstand scrutiny . In fact, the underlying premise of this ground
of review, namel y that the complaint was made against the applicant in his
position as a commissioner of the JSC, is wrong.

77. CASAC expressly lodged its complaint against the applicant given his position as
an MP , designated by the NA to serve as a commissioner on the JSC . In
CASAC’s words:

“This affidavit is lodged with the Registrar of Members' Interests in support of a
complaint in terms of section 10.2.2.2 of the Code of Ethical Conduct and
Disclosure of Members' Interests for Assembly and Permanent Council members
('Code'). The complaint is brought against the conduct of Mr Julius Sello Malema
MP of the Economic Freedom Fighters, a member of the National Assembly
('Assembly') .
In addition to being a Member of Parliament, Mr Malema is one of the Assembly's
six delegates to the Judicial Service Commission ('JSC') delegated in terms of

31 In oral argument counsel referred to Parliament as having “forum -shopped”.
section 178( 1)(h) of the Constitution of the Republic of South Africa. ”

78. The Committee therefore derived its power t o deal with the complaint against the
applicant from clause 12 4 of the Joint Rules of Parliament, which stipulates that
the Joint Committee on Ethics and Members Interests must implement the Code,
and develop standards of ethical conduct for Assembly and Council members.
The Committee must further, amongst other func tions, exercise the powers
reasonably assigned to the Committee in the Code and in terms of resolutions
adopted in both Houses.

79. In acting under the Code, as it was entitled to do, the Committee did not usurp
any of the J SC’s powers . The question of whethe r a complainant has recourse
before the JSC , or that the JSC may determine its own disciplinary process, is of
no consequence to Parliament’s reaction to the complaint. Parliament’s reaction
is underpinned by the fact that the applicant is an MP and therefore bound by the
Code , even though the breach occurred while the MP was serving on another
body. If t here is a complaint that an MP breached the Code, this is subject to an
investigation and a finding which m ust be implemented .

80. The NA therefore did not seek to enforce a provision of the JSC‘s rules against
the applicant. Parliament was enforcing its own Code against an MP. The
question – to which one returns time and again whichever way this application is
approached - is whether the Code continued to apply to the applicant at t he time
of the alleged breach . We have already found that it did.

81. This ground of review must therefore fail.

The third ground of review : The Committee's disregard of relevant circumstances when
making the finding

82. The applicant argues that the Committee disregarded the fact that Justice
Matojane was functus officio when the applicant asked him the question at the
JSC interview. The re was thus no basis on which the applicant could have
gained a personal benefit from the engagement with the judge.

83. The applicant makes much of three so-called “ striking features ” of the interaction
between him and Justice Matojane . These are th at the question was asked in
broad terms and not in an adversarial way; that Justice Matojane was not drawn
on the question but effectively shut it down as being inappropriate for discussion;
and, lastly, the fact that the applicant did not take the matter an y further after
having been rebuffed.

84. None of these features, however, relate to the fundamental problem identified by
the Committee, namely whether the applicant should “have entered a question
that relates to a case which concerns him person ally” at all . That is the nub of
the finding. It is common .cause that , as at the time that the JSC meeting was
underway on 15 April 2021, there was a pending application before th e
Constitutional Court. The Chief Justice , who would be involved in the
determination of the pending application, was chairing the JSC meeting. There is
no shying away from the fact that the applicant engaged Justice Matojane in a
matter in which he and the party to which he is affiliated had a personal interest,
and which was the subject of an application for leave to appeal to the
Constitutional Court.

85. In any event, the applicant's stance in this litigation is entirely inconsistent with
the position taken before the JSC at the time, when he seemingly accepted that
he should not be pursuing that line of questioning . The crux of the find ing is that a
commissioner should not be permitted to question a judge about a matter in
which they were a litigant because , in so doing, they are placing their own
interests above the public interest and are failing to act in accordance with the
public trust that has been placed in them. This is all the more so when an
application for leave to appeal against that decision is pending before an
appe llate court.

86. It is common cause that Justice Matojane was functus officio at the time of the
JSC hearing. This does not change the applicant’s position one way or the other.
From the exchange between the applicant and Justice Matojane it is clear that
the latter adopted the view that he had stated the necessary in his judgmen t, and
that the Constitutional Court would be the final arbiter . The a pplicant responded
''Fair enough". There was thus, as far as the applicant himself was concerned,
nothing to be tested . The applicant accepted that the judgment spoke for itself.

87. Whether the applicant derived any benefit from the question that he posed is also
not a decisive factor . That is not the only mischief addressed by the Code , and
was not the crux of the complaint: t he applicant' s transgression was that given
that the EFF w as a party to the litigation before Justice Matojane, the applicant
violated the public trust that had been placed in him and compromised the public
interest in an endeavo r seemingly to advance the interest s of the EFF. The
question sought publicly to emba rrass Justice Matojane for his r uling on the
damages claim , and to attempt to interrogate him , unfairly so, in a matter that
was pending before the Constitutional Court.

88. There is, in any event, a basic hurdle in the way of this ground of review. W e
have indicated earlier that, despite having been afforded the opportunity to make
representations in respect of the finding prior to the Committee’s first meeting ,
the applicant declined to do so . He was content with stating that the complainant
was “talking rubbish ”. None of the issues raised by the applicant in these
proceedings as “relevant circumstances ” in relation to the finding were thus
placed before the Committee or the NA. They were deliberately excluded from
consideration by the applicant himself .

89. There is therefore no question of the respondents having “failed ” to consider
these circumstances so as to give rise to a viable ground of review .32

The fourth ground of review : the finding was unconstitutional

90. The applicant argues that “a function of the right to freedom of expression ” is that
he “must be able to exercise his mandate while serving on the JSC without any
fear of repercussions for what is said. ” This is especially so, he says, w here his

32 See, for example, Ulde v Minister of Home Affairs and another 2009 (4) SA 522 (SCA) para
11; Eskom Holdings Ltd and Another v New Reclamation Group (Pty) Ltd 2009 (4) SA 628
(SCA) para 6 (failure to consider relevant considerations under PAJA).
intention in doing so was to question , in an innocuous manner, a senior member
of the judiciary for the purpose of their further advancement. Th e crux of the
argument is that, in fulfilling his constitutional mandate, he asked a question that
was legitimate and protected. JSC commissioners are expressly invited to ask
candidates questions about, amongst others, their judicial philosophy and
approach. Parliament 's attempt to sa nction the applicant for exercising that right
to free speech in this context is a breach of the applicant’s constitutional rights.

91. The applicant remarks that, ironically, Parliament's conduct in sanctioning the
applicant under the Code prima facie amounts to a violation of section 8 of the
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act
4 of 2004. Section 8 of that Act, which applies to MPs in the performance of their
duties pr ohibits any person from improperly influencing an MP through "fraud,
intimidation, force , insult or threat of any kind, or by the offer or promise of any
inducement or benefit of any kind, or by any other improper means".

92. The applicant is of the view tha t this Act does not apply to him in his capacity as
a JSC commissioner, but he makes the point that , just as it would be
unconstitutional for Parliament to sanction the applicant pursuant to a complaint
for utterances in the House (which enjoy absolute protection), Parliament cannot
now through a “vanguard” disciplinary action seek improperly to influence how
the applicant performs his JSC duties by trying to discipline him as an MP . We
express no opinion on t he applicability of the Act , as it is not before us for
consideration.

93. We are, however, not in agreement with the applicant’s line of argument in
relation to his right to free speech.

94. The applicant’s contentions again skirt the real issue. The applicant essentially
argues for an untramme lled right to question candidates for judicial appointment
irrespective of the subject matter of the questions , and its implications for the
administration of justice and the integrity of the process. This plainly cannot be
so. The processes before the JSC can never be such so as to undermine core
constitutional objectives.

95. There is an other reason why this ground of review must fail . This is that the
applicant has not sought to impugn the restrictions, such as they are, placed
upon him by the Code – his argument is that the Code does not apply to him at
all in the context of his role on the JSC. Clearly, t he applicant’s right to freedom
of expression was in no way constrained by either the Committee or the NA in
deciding upon the complaint after the even t. The applicant is (as we have found)
bound by the provisions of the Code, which outlines the minimum ethical
standards of behaviour that South Africans expect of public representatives such
as the applicant . It is therefore the Code (not Parliament) that places such
limitation s as there are upon the applica nt, and t he legality of the Code has not
been attacked at all in these proceedings .

96. There is thus no merit in this ground of review.

The fifth ground of review: t he Committee's consideration of irrelevant circumstances
when making the finding

97. The applicant contend s that , when making the finding, the Committee was of the
view that the Chief Justice ’s presence on the JSC panel on that day meant that
the JSC was effectively a c ourt of law.

98. There is no factual basis on record for this contention . A consideration of the
Committee’s report s as well as the minutes of the meeting held on 30 August
2021 , to which the applicant refers as support for its argument, clearly indicates
that the Committee’s references to a “court of law” were references to the
Constitutional Court , where the litigation was in fact pending . That this was the
case was also explained, in no uncertain terms, in the answering affidavits
delivered in these proceedings. There is no reason to reject this explanation on
the papers.33

Conclusion

33 See Plascon Evans Paints (Tvl) Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at
634E -635C.

99. For all of the reasons addressed above , we are of the opinion that there is no
merit in any of the grounds of review.

100. It is common cause that, aside from the powers of the Committee and the NA ,
and the constitutionality of their action, the applicant raises no procedural
irregularities in respect of the events leading up to the finding .

101. Lastly, the applicant did not rais e any issue with Parliament’s dismissal of
CASAC’s complaints against him relating to the Zondo Commission and Justice
Pillay. He was content to let the process take its course in relation to these
elements. The applicant cannot have it both ways. If Parliament can let him off
the hook in relation to two elements of the complaint , then Parliament can
discipline him in respect of the third element.

Costs

102. Is the applicant entitled to be shielded from a costs order under the so -called
Biowatch principle?34 We do not think so. In Biowatch35 the Constitutional Court
qualified the principle as follows:

“Merely labelling the litigation as constitutional and dragging in specious
references to sections of the Constitution would, of course, not be enough in
itself to invoke the general rule …. T he issues must be genuine and
substantive, and truly raise constitutional considerations relevant to the
adjudication. …”

103. In the present case, t he applicant raised constitutional i ssues in pursuit of what is

34 With reference to Biowatch Trust v Registrar Genetic Resources and others 2009 (6) SA 232
(CC) para 43.
35 Biowatch supra para 25. See also Bo-Kaap Civic and Ratepayers Association and others v
City of Cape Town and others [2020] 2 All SA 330 (SCA) para 86: “ As has been stated by this
court in National Home Builders' Registration Council & another v Xantha Properties 18 (Pty)
Ltd [2019] ZASCA 96; 2019 (5) SA 424 (SCA) at para 26, the mere labelling of litigation a s
'constitutional' is insufficient. For the Biowatch principle to apply the case should raise
genuine, substantive, constitutional considerations. The rule does not mean risk -free asserted
constitutional litigation .”
essentially a political dispute. The grounds of review were patently without merit,
and t he proceedings did not entail any serious constitutional challenge.

104. There is thus no reason why costs should not follow the result .36 In the exercise
of our discretion under Rule 67A,37 we regard the issues raised in the matter as
sufficiently complex to warrant counsel’s fees taxed on Scale C in relation to fees
incurred from 12 April 2024 onwards.

Order

105. In the circumstances, the application is dismissed, with costs, including the costs
of two counsel where employed. C ounsel’s fees incurred from 12 April 2024
onwards are to be taxed on Scale C.


_____________________
C. M. FORTUIN
Judge of the High Court


____________________
L. G. NUKU
Judge of the High Court


____________________
P. S. VAN ZYL
Acting Judge of the High Court


Appearances:

36 See Sackville West v Nourse and anot her 1925 AD 516.
37 See the discussion in Wanga v Road Accident Fund (case number 4503/2021, unreported
judgment of the Western Cape High Court (per Adams AJ) delivered on 19 November 2024)
paras [7] -[11].

For the applicant : Mr M. Ka -Siboto , instructed by Ian Levitt
Attorneys

For the responden ts: Ms K. Pillay, instructed by the State
Attorney, Cape Town
(Heads of argument were prepared by Ms
K. Pillay and Ms N. Mayosi)