Hundreds of activists marched from Cape Town's civic centre to parliament on Tuesday as the civil society coalition #UniteBehind challenged the constitutionality of a new code of conduct by parliament which they argue lets MPs accused of wrongdoing evade justice.
UniteBehind lodged complaints in 2022 against six MPs implicated in state capture by the state capture inquiry at the Passenger Rail Agency of South Africa (Prasa). In April 2023 it took parliament's ethics committee to court for failing to act on the complaints.
Parliament argued the outcome of the case would be academic or moot because a new code of conduct did not make provision for MPs who resigned to be investigated. UniteBehind seeks to have the new code declared unconstitutional.
Protesters gathered shortly after 10am and made their way to parliament via Adderley Street. They carried placards reading “gatvol of corruption” and “don’t protect corrupt MPs”. They also chanted “phansi corruption, phansi”.
Outside parliament Imam Rashied Omar addressed the crowd, saying they were not enemies of the state but “conscientious and responsible South African citizens”.
“This code of ethics or code of conduct, it's not a safeguard for integrity; it is a shield for corruption. It allows MPs who are implicated in serious allegations of corruption to simply walk away from justice by resigning before investigations are completed,” he said.
He said the new code of conduct was passed “quietly and without any transparency”.
Omar said corruption was not a victimless crime: “Every rand, every cent stolen, is a classroom not built, a clinic without medicine, a train that never arrives at the station.”
Sechaba Lerotholi from Nyanga told activists he had never been able to use a train due to living with disabilities. “If I have to use the trains, I have to be lifted,” he said.
He attended the rally to show solidarity in the fight against corruption at Prasa.
“If the trains come back, they must create a ramp so a person in a wheelchair can go inside without asking people for assistance,” he said.
The matter was heard at the Western Cape High Court before three judges.
In its application, #UniteBehind said its central demands were the building of a safe, reliable, affordable, efficient and quality public transport system, particularly a commuter rail service, according to director Zackie Achmat.
“This is sought to be achieved by taking positive steps to end the following in respect of Prasa: the endemic corruption; its capture; political interference by the executive; and incompetence and maladministration. We are committed to ensuring commuter rail services are devolved to local and provincial governments in line with the constitution, legislation and long-standing government policy,” he said in the founding affidavit.
“It is a notorious fact that a large number of politicians and other high-profile individuals have been implicated in unlawful activities, including corruption and mismanagement in the affairs of Prasa. State capture at Prasa, its mismanagement, maladministration and collapse must be attributed to the individuals, some of whom are members of parliament.”
The complaints were lodged against Sfiso Buthelezi, Dipuo Peters, Mkhacani Joseph Maswanganyi, Fikile Mbulula, Mosebenzi Zwane and Dikeledi Magadzi.
Gregory Solik, on behalf of the applicants, said they should not lose sight of what the complaints were about.
“They are about people who travel on trains that are defective and don’t fit the railways. It is about my clients who are subject to violence on a daily basis when they use public transport,” argued Solik.
“Former MPs can resign to avoid being held accountable for their conduct while in office. There is nothing in the new code preventing a former member from resigning to avoid discipline and then being reappointed as a MP, thereby escaping accountability.”
In an answering affidavit, Anthea Gordon, acting registrar of members' interests of parliament, said they objected to the application She called it an attempt to “breathe life into a dead case” and said it should be dismissed with costs.
The review of the code started “in earnest in 2022 and culminated with the adoption of the new code by the National Assembly [NA] in May 2024”, she said.
Between August 16 and 19 2022, she said, presentations were made to MPs on “key issues and processes affecting their performance. During the presentation on the work of the ethics committee and on ethical standards of MPs, the EFF pointed out the code was deficient or outdated in that it did not cater for conduct of members through social media platforms.”
A letter on September 27 2022 by the then-ANC chief whip Doris Eunice Dlakude proposed a review of the code.
“The research unit of parliament was requested to consider comparative foreign law in this regard. During June 2023, the research unit submitted its contribution to the revisions to the administrative team supporting the ethics committee for consideration in the furtherance of the revision,” said Gordon.
After deliberations, Gordon said in the court papers, the ethics committee adopted a revised code, referred to as the new code, after work by the administrative team. The ethics committee report, reflecting the decision, was published in parliament’s announcements, tablings and committee reports on March 26 2024.
“On April 25 the National Council of Provinces (NCOP) considered its members’ statements on the proposed new code.”
Gordon said the NCOP adopted the code after consideration. She said the proposed “new code was similarly placed before the National Assembly, which also considered its members' statements before adopting it. As a result, the NCOP and NA adopted the new code on April 25 2024 and May 9 2024, respectively”.
Zinzile Matebese, who argued for the respondents, said the code of conduct did not have a provision for right of reply.
Judge Lister Nuku reserved judgment.
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