Parliament Secretly Passed New Code of Conduct Without Public Comment

• Parliament’s ethics committee changed the Code of Conduct in May 2024, just days before the dissolution of Parliament ahead of the national election.
• Now #UniteBehind is asking the court to declare it unconstitutional because this was done without public participation.
• The change came months before a scheduled trial against Parliament’s ethics committee for failing to investigate MPs implicated in state capture and the collapse of the Passenger Rail Agency of South Africa (PRASA).
• #UniteBehind director Zackie Achmat said, “This undermines the integrity of Parliament and erodes public trust.”

Parliament’s Joint Committee on Ethics and Members’ Interests acted “underhandedly” and “unlawfully” when it adopted a new code of conduct without any public participation, says #UniteBehind director Zackie Achmat.

This is the latest development in the activist group’s lengthy litigation over the code.

In 2022, #UniteBehind laid official complaints urging the ethics committee to investigate matters of state capture, corruption, maladministration and mismanagement, related to six ANC MPs accused of facilitating the collapse of the Passenger Rail Agency of South Africa (PRASA).

The organisation’s complaints were based on findings by the State Capture Commission, the Public Protector, the Auditor-General, the courts and other investigations implicating former ministers, deputy ministers and chairs of portfolio committees in state capture.

Then, in April 2023, #UniteBehind took the ethics committee to court for failing to act on the complaints. Calling for more transparency and an open public participation process, they wanted the Code of Conduct’s secrecy provisions declared unconstitutional.

In a second application, which was later consolidated with the first, #UniteBehind sought to review a decision by Parliament to allow former transport minister and current secretary-general of the ANC, Fikile Mbalula, and the former chairperson of the parliamentary committee on transport and later deputy transport minister, Dikeledi Magadzi, to “evade justice” when they resigned from the National Assembly.

The trial date was set down for February this year. But in the run-up, #UniteBehind’s lawyers discovered that the Code of Conduct had been changed by the ethics committee in May 2024, just days before the dissolution of Parliament ahead of the national election. The code was then ratified – with no public participation or debate – by the National Assembly and the National Council of Provinces in October.

Achmat, in a supplementary affidavit filed in the Western Cape High Court, said that the new code “strips the legislature of any jurisdiction over members of Parliament who resign, thereby creating a legal escape route for itself, Mbalula, Magadzi and future miscreants”.

Parliament failed to inform #UniteBehind, the court and the public of its new code of conduct, he added.

“It can be reasonably construed as an attempt to obstruct justice on behalf of powerful politicians implicated in state capture,” said Achmat. “Our legal counsel discovered this about seven months after the code was altered and two months before our application was to be heard.”

“The behaviour of Parliament and its representatives in this case shows contempt for people and process in dealing with corrupt members of Parliament,” he said.

Achmat said the new code was “hastily” adopted before the national election. “Clearly the committee wanted to evade scrutiny of its decision to unlawfully remove Parliament’s jurisdiction over members who resign while being investigated for unethical and unlawful conduct,” he said.

He said at no stage in the months leading up to the trial – which eventually had to be postponed – did Parliament disclose that a new code had been adopted, even though it was central to the litigation. Because of this, #UniteBehind requested all documents relating to the adoption of the code. These were never provided.

He said the new code retained confidentiality provisions which were unconstitutional. “This undermines the integrity of Parliament and erodes public trust,” Achmat said.

“The timing was suspect, the review process has been ongoing for ten years, it is curious that Parliament would suddenly rush through a new code a few days before the dissolution of Parliament,” he added.

#UniteBehind has amended its notice of motion and is now asking for an order declaring the new code unconstitutional. The respondents will have to file further papers before the matter is set down for trial again.

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