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Parliament has lost yet another legal matter – this time, it was found by the court to have flagrantly disregarded the Constitution, fundamental rules of procedural justice and the code of ethics of MPs.
This is the second such ruling since March 31, when a Constitutional Court judgment found the National Assembly acted in a manner that was “inconsistent with the Constitution”, and acted unlawfully over its handling of findings by the Public Protector and remedial actions.
This time, the Western Cape High Court ruled in favour of the DA and its leader, Mmusi Maimane, who had taken the joint committee on ethics and members’ interests, its chairpersons, the registrar of members’ interest Fazel Mohamed and National Assembly Speaker Baleka Mbete to the court.
Earlier this year, the committee ruled that Maimane breached the code of conduct for MPs for allegedly failing to declare financial sponsorship towards his campaign to become DA leader and recommended a penalty, which was a fine of seven days’ salary (R20 000) and a reprimand in the House.
But the committee came to its conclusion without even informing Maimane that there was a complaint against him, or telling him what the nature of the complaint was. He was also not notified of any investigation or asked to make any representation or respond to allegations.
And when Maimane sought to appeal the committee’s findings and recommendations, and challenged the process they followed, the committee simply dismissed him and upheld its original positions.
Maimane and the DA went to court. They wanted the high court to give an order reviewing and setting aside the decision of the committee, and asked for penalties to be reviewed and set aside.
The code requires the registrar of members’ interests to maintain a register of members’ interests and it requires members of Parliament to disclose to the registrar particulars of all the registrable interests as defined in
the code.
The deadline for the disclosure of interests last year was June 30, but Mbete extended it to July 30 2015.
According to the court papers, Maimane completed and submitted his declaration of interest for 2015 on July 30. “At that stage, the registrar gave him no indication that his declaration was insufficient.”
Maimane claimed that he first discovered on October 29 from an ANC press statement that he was accused of doing something wrong. He argued that, at that stage, the registrar had not published the declarations that had been submitted to her and did not know how the ANC would have known what was contained in the declaration of interest before it was published, unless Mohamed was providing the ANC with information not available to other political parties or the general public. Maimane believed his initial declaration had complied fully with the code.
He stated that he did not receive any direct financial sponsorship or assistance from nonparty sources in the DA leadership race.
Maimane wrote to the committee to withdraw its finding, but the committee wouldn’t budge, saying its process was correct and it upheld its findings and penalties.
In his judgment on Thursday, Judge Robert Henney agreed with Maimane that the committee prejudged the matter against him. Henney also agreed with Maimane that members of the committee who adjudicated the matter may not participate in its reconsideration, saying it would be untenable to permit the same committee to continue to make a decision against Maimane.
“I also agree with the first applicant [Maimane] that the committee did not follow fundamental rules of procedural justice, the Constitution and at least the very code of ethics they are required to enforce.”
