Parliament has denied Julius Malema and other State of the Nation Address (SoNA) stage-storming Economic Freedom Fighters (EFF) MPs' claims that they are being "abused" because they are opposition party members – and says their court bid to halt the disciplinary proceedings against them is "hypothetical" and should be dismissed.

Parliamentary authorities are also unconvinced by the EFF's claims that it is seeking to challenge the rules that govern disciplinary processes against MPs out of genuine concern about their constitutionality – and say the opposition party should be ordered to pay the costs of this "self-interest" litigation.

In papers filed at the Western Cape High Court on Tuesday night, the chief legal adviser to Parliament, Zuraya Adhikarie, said a "central theme" in the case being brought by Malema and the five other EFF MPs was their claim they were "being subjected to abuse because of their political affiliation as opposition MPs".

"But that is misplaced because the applicants are not being subjected to scrutiny because of their political affiliation or membership of a political party, their conduct as individual MPs of the National Assembly is being scrutinised," she said.

"It is important to emphasise, at the outset, that the Economic Freedom Fighters has not been charged with contempt of Parliament. It is only the applicants, as Members of Parliament, that have been charged with contempt of Parliament. Thus, contrary to the contentions made in the founding affidavit, the EFF is not, as a political party, being disciplined. Nor are the applicants being disciplined because of their political affiliation to the EFF. The issue for determination (now by the National Assembly) is thus the conduct of the applicants, as MPs, not as EFF members."

In an urgent application that is due to be heard on 4 December, Malema, EFF deputy president Floyd Shivambu, secretary-general Marshall Dlamini, Vuyani Pambo, Mbuyiseni Ndlozi and spokesperson Sinawo Thambo are seeking to block the progress of the disciplinary process instituted against them by Parliament's Powers and Privileges Committee.

The committee last week found the six EFF MPs guilty of contempt of Parliament. Should they fail in their bid to interdict Parliament from sanctioning them, they also face being suspended from 1 February until 29 February 2024 – meaning they won't be able to attend the SoNA in 2024.

Malema and his fellow MPs want to stop that from happening by seeking to urgently intervene in another legal challenge, launched by EFF MPs who face possible sanction for disrupting a parliamentary hearing where Ramaphosa refused to answer their Phala Phala questions, as a means to interdict the proceedings against them.

In that case, the EFF wants the high court to order that the National Assembly rules and the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 are unconstitutional "to the extent that they fail to provide sufficient guidelines and safeguards necessary to protect Parliament's process for disciplining Members of Parliament".

They argue that MPs should be given the power to subpoena witnesses, in their case the Speaker, to testify in their disciplinary proceedings. 

But, as Adhikarie points out, Malema and his fellow SoNA stage stormers gave no indication that they wished to call any specific witnesses in their hearing and made no request to do so – meaning the case that they wish to intervene in appears to have little to nothing in common with the hearing against them.

According to Malema, however, Parliament's disciplinary processes are tainted by the ANC's majority position in the National Assembly, and fail to "sufficiently curtail the opportunities for the ruling party to abuse its majority and punish its political opposition regardless of the lack of merit".

"Even if the ruling party were able to conduct itself according to the highest standards, the system which regulates the disciplining of MPs must itself limit the scope for such abuse. Put simply, the act and the rules provide the committee with wide powers and discretion without putting in place safeguards to guard against arbitrariness, partiality, bias and abuse," he adds.

Adhikarie says these assertions are "hypothetical" and the EFF's challenge to the rules governing parliamentary disciplinary processes is "devoid of any factual basis". 

"It is simply raised in the abstract," she adds.

In any event, Adhikarie says, the findings made and recommendations given by Parliament's Powers and Privileges Committee in relation to the stage stormers will only become final if and when the National Assembly votes, by a simple majority, to adopt its report.

"As indicated, no adverse decision has been made, yet [Malema, Shivambu, Dlamini, Pambo, Ndlozi and Thambo] have embarked upon a hypothetical analysis of potential issues which they allege amount to reviewable constitutional issues. As will be contended in legal argument, such an approach is fundamentally flawed," she states in court papers. 

Malema and his fellow MPs launched their legal action prior to the hearing by Parliament's Powers and Privileges Committee on the SoNA stage storming, which the EFF leader continues to insist was a peaceful protest. 

While he has argued that it only became violent as a result of the conduct of National Assembly Speaker Nosiviwe Mapisa-Nqakula, Adhikarie says Parliament's Powers and Privileges Committee found that the EFF MPs had advanced on Ramaphosa in a "threatening" manner which justified the involvement of security officials.

After Malema and his cohort last week failed in their application for the disciplinary hearing against them to be postponed, he turned his ire against Parliament-appointed initiator, senior counsel Anton Katz.

"No white man will persecute me, and we are not going to accept to appear before this white man and this kangaroo court. This outcome has already [been] determined even before by yourself and the DA. He is not a man of integrity, and we will never be persecuted by a white man.

"Some of you [committee members] will not come back to this Parliament [after the 2024 elections], especially you chairperson, and many others, you are going to watch Parliament from home. Whatever decision you take, we will still be in Parliament, whether that white man you chose likes it or not, we will be in Parliament."

According to Adhikarie, Malema and his affected colleagues have also reserved their "right to attack the competency of the initiator's [Katz's] appointment". It is unclear at this point what this mooted challenge would be based on.