In July last year, public enterprises minister Pravin Gordhan had to be whisked to safety as EFF MPs charged towards him in an attempt to prevent him from delivering his annual budget speech.
Now, nearly 18 months later, the EFF has said it will go to court to challenge the parliamentary rules and laws the institution is relying on to discipline the MPs involved in the fracas.
The party also wants a retired judge or a senior counsel to preside over the process, saying the current composition of parliament's powers and privileges committee would unfairly prejudice EFF members.
Sixteen EFF MPs are facing contempt of parliament charges for their role in the disruption, which saw Gordhan escorted away from the podium. The MPs accused Gordhan of being “a constitutional delinquent” after adverse findings against him by public protector Busisiwe Mkhwebane regarding his role in the establishment of the so-called Sars “rogue unit”.
None of the affected MPs attended their disciplinary hearing, which started in parliament on Tuesday.
Advocate Kameel Premhid, on behalf of the EFF and the affected MPs, told the powers and privileges committee - which is conducting the hearing - that it was just cause for his clients not to present themselves before the hearing.
He cited a slew of procedural and substantive concerns which the lawyers had raised with the acting secretary to parliament, Baby Tyawa, before the hearing.
The EFF argues that the process followed by the committee was flawed, causing a serious breach of its MPs' rights to a fair hearing.
It also raises concerns about “the political nature” of the committee, saying this was reflected by its membership with an in-built ANC majority. This, the EFF says, will not produce a fair outcome.
“Given the political context of the events in respect of which our clients have been charged, it is not unreasonable to assume that the ANC will use its majority to find our clients guilty by default,” reads a legal letter to Tyawa.
“The ANC majority on the committee are clearly incentivised to find our clients guilty so as to punish them, given that they are political opponents.
“This is particularly the case where the potential sanction that our clients may be subjected to includes, but is not limited to, suspension from parliament and, or, without pay,” the letter continues.
The lawyers argued that either, or both, of these consequences constituted significant incursions into the political rights of the EFF and its voters.
Among the EFF's demands was for a retired judge and, or, practising senior counsel to preside over the hearings.
'They should have been here'
ANC and DA MPs, as well as Ncumisa Mayosi, the advocate of the Cape Bar appointed by parliament to lead evidence in the matter, rejected the EFF's concerns as having no basis - and pushed for the hearing to continue.
Mayosi said issues of procedural fairness don't arise at all, as the committee spent the morning session on Tuesday hearing the concerns raised in numerous correspondence to the legislature.
She also didn't believe there was just cause for affected EFF MPs' absence on the basis of procedural complaints raised and substantive reasons and demands made, as these were unfounded and the committee had decided on them.
“They should have been here. They should have come to argue their case here,” agreed committee chairperson Philly Mapulane of the ANC.
He said the committee was properly constituted and had a right to proceed with disciplinary proceedings against errant MPs.
“Their legal representative has argued their case and the committee has disagreed,” said Mapulane.
In light of the decision to proceed, Premhid said he had received an instruction from his clients that they would be challenging in court, the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act and the rules of parliament as the basis upon which the process was proceeding.
His clients, he said, had also instructed him to withdraw from the process so that he is not seen as legitimising an unfair process.
