National Assembly Speaker Nosiviwe Mapisa-Nqakula said Economic Freedom Fighters (EFF) leader Julius Malema violated public trust when he used Judicial Service Commission (JSC) interviews "to advance the self-interest of the EFF" – by asking a judge about his ruling against the party.

In papers filed at the Western Cape High Court, Mapisa-Nqakula defended Parliament's right to hold Malema accountable – as a Member of Parliament – for his unethical questioning of then-Gauteng High Court Judge Elias Matojane during JSC interviews held in 2021. 

Matojane, who Malema questioned about a ruling he'd given against the EFF two years earlier, was vying for possible appointment to the Supreme Court of Appeal (SCA) at the time.

"[Malema's] transgression was that given the EFF was a party to the litigation: (a) he violated the public trust that had been placed in him; and (b) he compromised the public interest in an endeavour to advance the self-interest of the EFF," Mapisa-Nqakula stated.

"In any event, I submit there was a benefit that was derived from the questioning. It was to publicly embarrass Justice Matojane for his ruling on the damages claim and to attempt to interrogate him (unfairly). It was also to preemptively engage in a matter that was pending before the Constitutional Court."

In 2019, Matojane had ordered the EFF to pay former Finance Minister Trevor Manuel R500 000 in defamation damages for claiming he oversaw a "corrupt" process to appoint South African Revenue Service commissioner Edward Kieswetter. 

The EFF took the case to the SCA, which sustained Matojane's defamation finding but referred the determination of the sanction that the opposition party should receive back to the high court, where it would be decided through a further trial process. 

In an application that was later dismissed, Manuel appealed to the Constitutional Court and asked that the damages ordered by Matojane be reinstated. 

At the time that he questioned Matojane about his ruling, Malema knew that the apex court had yet to rule on Manuel's appeal – and admitted he was "reluctant" to ask his question because he was an interested party in the case. 

Malema nonetheless asked Matojane: "The quantum was referred back to oral evidence. How did you arrive at the conclusion that it was appropriate for you to award R500 000 without any of the parties leading any oral evidence? 

"I know that Manuel is now appealing… but the SCA has referred that matter back to you and said there must be oral evidence led - so that whatever figure you arrive at is on the basis of that oral evidence." 

Matojane answered: "Mark Twain said nothing spoils a good story than the arrival of an eyewitness. This matter is pending before the Constitutional Court, and I don't think the Chief Justice [then Mogoeng Mogoeng] is interested in my musings, so my simple answer to you, Mr Malema, is that I cannot second-guess the decision that is going to be made by the Constitutional Court. 

"The matter is now out of my hands. I have said what I had to say, and if the SCA has upheld me, we don't know what the Chief Justice is going to say. I am constrained to be seen as second-guessing what the decision of the Constitutional Court might be." 

Malema responded: "Fair enough."

In response to a complaint lodged by the Council for the Advancement of the SA Constitution (Casac) in 2021, Parliament's Joint Committee on Ethics and Members' interests found that Malema should not have used the JSC as a "platform for his personal interests" by asking Matojane questions about a case that directly involved him and his party.

It ordered the EFF leader to apologise to the judge and the JSC.

The EFF leader had originally responded to the ethical complaint levelled against him by Casac's Lawson Naidoo by stating: "He is talking rubbish. That's my official response."

Malema is now seeking to review and set aside the ethics committee's findings and recommendations, in a case that Mapisa-Nqakula has described as characterised by "manifest inconsistency."

The EFF leader's fight to avoid apologising to Matojane and the JSC preceded criticism of his recent attacks on East London magistrate Twanet Olivier, who he accused of incompetence and corruption after she refused to summarily acquit him of firearm discharge charges. He provided no evidence of his claims, which Judges Matter has urged him to retract and unconditionally apologise for.

The justice department, meanwhile, has slammed Malema's claim that Olivier had been called by President Cyril Ramaphosa, Public Enterprises Minister Pravin Gordhan, and/or prosecutions head Shamila Batohi before she delivered her ruling a "conspiracy theory."

As yet, Parliament says no one has laid a formal complaint against Malema regarding these accusations, which will cast a pall over his ongoing gun trial.

Unfolding litigation with regard to his unethical conduct as a JSC commissioner could, therefore, not have come at a worse time for Malema, who remains resolute that he won't apologise for unsubstantiated attacks on Olivier. 

In papers filed in the Western Cape High Court in the Matojane apology case, the Speaker has strongly rejected Malema's claims that only the JSC can sanction him in relation to his conduct at the commission – despite the fact that there is presently no code of conduct for commissioners.

Malema insisted it was "untrue" that he sought to advance his own interests in his questioning of Matojane and argued that the JSC "has decided not to sanction me on account of my line of questioning while serving on that body."

"It is only Parliament, through the report, that seeks such sanction," he said.

"In other words, Parliament seeks to punish me in terms of its code for my conduct before another body in another capacity and in circumstances where that body itself did not find my conduct to be objectionable or in breach of its rules and procedures," he added.

Mapisa-Nqakula does not buy that argument.

The Speaker is adamant that Malema's behaviour – in and outside of the National Assembly – must be governed by Parliament's Code of Ethical Conduct and Disclosure of Members' Interests for Assembly and Permanent Council Members.

"When [Malema] serves on the JSC, he does not cease being a Member [of Parliament]. On the contrary, he serves on the JSC by virtue of being a Member and having been designated as such," she said.

According to Mapisa-Nqakula, there are five reasons why Malema's questions to Matojane constitute a clear violation of the Ethics Code.

Firstly, the EFF was "a party to the litigation in question";

Secondly, Malema's question to Matojane covered a topic that he had already addressed in the judgment he had given against the EFF. According to Mapisa-Nqakula: "There was accordingly no legitimate purpose to be served by [Malema] asking this question after judgment had been given and in circumstances where the SCA had already determined the appeal and set aside certain aspects of Justice Matojane's judgment and order";

Thirdly, she adds, Malema "was fully aware of the fact that the matter was on appeal to the Constitutional Court and that the Chief Justice (who serves on the Bench of the Constitutional Court) would be hearing the appeal";

Fourthly, Mapisa-Nqakula points out that Malema had himself expressed "reluctance" to put his question to Matojane because "somehow I am involved." While Malema had said he would address a "high level" question to Matojane, "he nevertheless ventured into a very specific question concerning why Justice Matojane considered it appropriate to award R500 000 on damages claim in the absence of any of the parties leading any oral evidence"; and

"Fifth, given the absence of any legitimate basis for the question posed by [Malema] and given the fact that it concerned litigation in which the EFF was a litigant, the purpose of the question was undeniably: (a) to cause public embarrassment to Justice Matojane; and (b) to utilise an extra-curial platform for an interrogatory in respect of a judgment in which the EFF was party – this, in circumstances where the other party to the pending litigation [Manuel] did not serve on the JSC and had no such opportunity to engage Justice Matojane on his judgment." 

"On these facts," Mapisa-Nqakula argued, "[Malema] clearly used his role as a Member of Parliament on the JSC in order to interrogate a sitting judge on a matter where he had ruled against the EFF.

"It is significant that [Malema] did not question Justice Matojane on aspects of his judgment which were confirmed by the SCA. In so doing, [Malema] put his own interest (and that of his party) above the public interest and failed to act in accordance with the public trust placed in him."