- Parliament’s Joint Committee on Ethics and Members’ Interests unlawfully closed the complaints against Fikile Mbalula and Dikeledi Magadzi after they resigned as MPs.
- The committee must now consider the Registrar’s reports and make findings on both complaints, which relate to alleged failures in parliamentary oversight of PRASA.
- The High Court dismissed a challenge to the previous ethics code’s confidentiality provisions, and found it did not have jurisdiction to decide the constitutional challenge to the replacement code.
Parliament’s Joint Committee on Ethics and Members’ Interests cannot avoid deciding complaints against members just because they resign, the High Court in the Western Cape has ruled.
The court set aside the committee’s April 2023 decisions to close the complaints against Fikile Mbalula and the late Dikeledi Magadzi, finding that the committee was required to consider the Registrar’s reports and reach findings under the parliamentary ethics code.
In a judgment delivered on 13 October 2026, Judge HM Slingers, Acting Judge EJ Jonker, and Judge L Nuku held that the committee had acted unlawfully when it closed the files concerning Mbalula and Magadzi after they resigned from Parliament.
The consolidated applications were brought by #UniteBehind NPC, political activist Abdurrazack ‘Zackie’ Achmat, and Zukiswa ‘Vuka’ Fokazi. They challenged the committee’s handling of complaints lodged in September 2022 about six members of Parliament and their conduct relating to the Passenger Rail Agency of South Africa (PRASA).
The complaints were based on findings from the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State. They alleged failures to uphold ethical standards and parliamentary oversight responsibilities, though not all allegations were determined in these proceedings.
Mbalula, who had served as transport minister, and Magadzi, who had chaired Parliament’s Portfolio Committee on Transport, resigned as MPs in March 2023. On 17 April 2023, the Joint Committee on Ethics and Members’ Interests closed their complaint files, arguing that because they were no longer members of Parliament, the code no longer applied to them. Magadzi died on 28 December 2025, at the age of 75.
The applicants argued that the committee was still required to complete the investigations. They relied on Clause 10.7.10 of the old Code of Ethical Conduct and Disclosure of Members’ Interests, which states, “If a Member resigns at any stage of the investigation, the investigation process will continue for the Committee to make a finding.”
Committee was required to consider the Registrar’s reports
The judges found that the committee could not use its general powers to close the files in these circumstances without first considering the Registrar’s reports and making findings. The judgment explained that Clause 10.6 required the committee to consider the Registrar’s report, while Clause 10.7.10 specifically dealt with what happens if a member resigns during an investigation.
The court said that allowing MPs to avoid the consequences of investigations by resigning would undermine the committee’s oversight role and Parliament’s constitutional responsibilities. “The Joint Committee’s duty to ensure accountability and integrity and to address malfeasance would be undermined if members of Parliament could avoid the outcome and consequences of any investigations that result from complaints against them by simply resigning their position only to be reappointed,” the judges said.
Because the committee did not consider the reports, it failed to meet its obligations under the code. The court declared the committee’s decisions unlawful, reviewed them, and set them aside. The complaints are now back before the committee, which must consider the Registrar’s reports and make findings.
Challenge to new ethics code falls outside High Court’s jurisdiction
The applicants also tried to challenge the replacement parliamentary ethics code, which took effect on 28 May 2024. They argued that it kept confidentiality provisions, limited the committee’s jurisdiction over former MPs, and was adopted without enough public participation.
They also alleged that Parliament changed the rules while litigation over the previous code was still pending, without properly informing the public about the process. However, the judges refused the applicants’ application to amend their notice of motion to include the challenge.
They found that the supplementary affidavit meant to support the amendment had not been properly commissioned, and that the applicants did not provide a full and satisfactory explanation for their delays in fixing the problems and complying with court directions.
The judgment described the affidavit problem as more than just a technicality, because it affected whether evidence had properly been put before the court.
Even if the amendment had been allowed, the court found it did not have the jurisdiction to decide the challenge, as it involved Parliament’s alleged failure to fulfil its constitutional duties regarding public participation. Section 167(4)(e) of the Constitution gives the Constitutional Court sole power to decide whether Parliament or the President has failed to fulfil a constitutional obligation.
Because the applicants’ challenge required the court to determine whether Parliament had properly facilitated public participation in adopting the new code, the issue fell under the Constitutional Court’s exclusive jurisdiction. The High Court, therefore, did not decide whether the new code was constitutionally valid.
Previous confidentiality provisions challenge dismissed
The applicants also asked for a declaration that Clauses 10.3.4 and 10.6.12 of the old code, which required confidentiality during the complaints process, were inconsistent with the Constitution and therefore invalid.
The court dismissed this part of the application because the old code had already been replaced, and the confidentiality periods for the complaints in question had mostly expired.
The judges found that declaring the provisions invalid would have no real practical effect. The confidentiality rules for the current complaints process are in the new code, which was not properly before the court.
Zwane review dismissed as moot
The applicants also challenged the committee’s 17 April 2023 decision concerning former MP Mosebenzi Zwane, who had chaired the Portfolio Committee on Transport.
The complaint alleged that Zwane failed in his oversight responsibilities concerning PRASA and the transport minister. The committee found the complaint unfounded and found no breach of the code in relation to the alleged oversight failure.
The judges dismissed the review concerning Zwane because it was no longer a live issue for the court to decide. The decision was not dismissed on its merits.
Costs order
The court ordered each party to pay its own costs in the application challenging the old code, and in the interlocutory proceedings about the defective supplementary affidavit.
However, in the review application concerning Mbalula, Magadzi, and Zwane, the first to fifth respondents were ordered to pay the applicants’ costs jointly and severally. This included the costs of two counsel where used, with fees on scale B.
The court found that the applicants had achieved substantial success in challenging the decisions about Mbalula and Magadzi, while the review concerning Zwane was dismissed because it was moot.
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