Section 47(1) of the Constitution delineates clear boundaries regarding eligibility to be an MP. It expressly excludes, or disqualifies, certain categories of people from being able to hold this office to uphold the integrity and credibility of elected representatives. These limitations underscore the importance of accountability and ethical conduct in governance, safeguarding public trust in democratic institutions. These criteria are as follows:

1. Those appointed or in the service of the state, receiving remuneration, excluding specified officials.
2. Permanent delegates to the National Council of Provinces, members of provincial legislatures, or Municipal Council members.
3. Unrehabilitated insolvents.
4. Individuals declared of unsound mind by a court.
5. Individuals convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, until five years after sentence completion.

Controversial Parliamentarians and Corruption Allegations:

However, significant concerns arise due to the presence of individuals within these parties facing serious allegations of corruption or other criminal activities. Thus, although they are currently not convicted and have not been sentenced to more than a year in jail, this still casts a shadow over their suitability, given the absolute need for ethical individuals to oversee executive action and make the nation’s laws. Thus, the presence of MPs facing serious allegations of having committed crimes, such as, but not limited to, corruption, poses serious ethical problems in light of the oath taken and undermines the public’s trust in democratic institutions.

1. Dr John Hlophe (MK):

Dr John Hlophe is a former High Court judge and judge president of the Western Cape Division of the High Court. He faced serious allegations and subsequent impeachment due to accusations of judicial misconduct, stemming from allegations that he attempted to influence court decisions in favour of Jacob Zuma. (The Constitutional Court filed a complaint of judicial misconduct against him, because it alleged he had sought to influence the outcome of a matter relating to Jacob Zuma’s corruption charges. Specifically, he was accused of improperly trying to influence two Constitutional Court judges who were presiding over cases related to Zuma.) This alleged misconduct was seen as a direct challenge to the integrity and impartiality expected of judges, particularly in cases of high political sensitivity.

The Judicial Service Commission (“JSC”), responsible for investigating complaints against judges, conducted a lengthy inquiry into the allegations against Dr Hlophe. The JSC ultimately found him guilty of gross misconduct, leading to the President suspending him from office. He was impeached for judicial misconduct by the previous parliament on 24 February 2024. Importantly, the Constitution only allows for a judge to be removed from office if the Judicial Service Commission finds him guilty of gross misconduct (as they did with Dr Hlophe) AND at least two-thirds of MPs call for him to be removed, i.e. an impeachment vote (section 177).

Despite the above, he is now an MP and the Leader of the MK opposition in Parliament. His impeachment for improper judicial influence stands in stark contrast to the ethical expectations of MPs, sparking widespread criticism and concern. Critics question the ethical implications of allowing someone with such a contentious judicial past to hold a pivotal position in the legislative branch. The move raises serious ethical and governance questions, particularly regarding the standards of integrity and accountability expected from public representatives.

Organisations, like Cosatu, are vocal in their condemnation of Dr Hlophe’s parliamentary role, emphasising the need for rigorous adherence to Parliamentary Codes of Conduct and Constitutional values. They argue that allowing MPs with dubious ethical backgrounds to hold influential positions undermines public trust and the integrity of South Africa’s democratic institutions.

A constitutional law expert asserts that the MK party’s attempt to insert Dr Hlophe into Parliament constitutes election rigging. Dr Hlophe was not on the pre-election candidate list submitted to the IEC, making his inclusion illegal and unconstitutional. Item 17 of Schedule 1A to the Electoral Act, 1998, permits list supplementation only within the first 12 months to fill casual vacancies, not replace elected candidates. The MK party’s actions ignored these stipulations, undermining the electoral process and IEC’s authority (item 14 grants the IEC exclusive authority to designate members of Parliament). The MK party violated this procedure by excluding Dr Hlophe from its candidate list and then replacing candidates with him.

These actions also infringe on the rights of duly elected candidates (section 19(3) of the Constitution), who stood for and were duly elected for public office. The IEC may now challenge this legality under section 5 of the Electoral Commission Act. Additionally, section 21(1)(a) of the Electoral Commission Act makes wilfully hindering IEC functions a criminal offence, punishable by a fine or imprisonment.

The controversy deepens as Dr Hlophe has been appointed a delegate to the JSC, the body responsible for judicial appointments and disciplinary proceedings. This move meets significant opposition from civil society organisations and legal experts, who argue that appointing someone found guilty of gross misconduct by the JSC to the same commission compromises its independence and credibility.

2. Duduzile Zuma-Sambudla (MK):

Duduzile Zuma-Sambudla, daughter of former President Jacob Zuma, has emerged as a controversial figure in South African politics, embodying contentious ties and alleged involvement in significant political events. She has been prominently associated with inflammatory social media posts that seemingly incited unrest, particularly during the aftermath of her father’s arrest in July 2021. Her tweets and public statements, including calls for “another unrest“, have drawn widespread criticism for potentially instigating violence similar to the deadly riots that claimed over 350 lives.

Moreover, Zuma-Sambudla has been implicated in corruption scandals linked to the Gupta family, particularly concerning illegal state capture activities during her father’s presidency. Allegations include her tenure as a director in Gupta-affiliated companies and her purported role in facilitating illicit business dealings that benefited her family and their associates.

The National Prosecuting Authority (“NPA”) has not instituted legal proceedings against her for the tweets. Neither does it appear she is facing prosecution in respect of the corruption allegations.

3. Julius Malema (EFF):

Julius Malema, also a controversial and influential figure in South African politics, has faced a multitude of legal and ethical challenges throughout his career. Initially rising to prominence as the fiery leader of the ANC Youth League, Malema’s tenure was marked by confrontations with the ANC leadership, which eventually led to his expulsion from the party. His subsequent formation of the Economic Freedom Fighters (“EFF”) positioned him as a vocal critic of government corruption, advocating for radical economic transformation and land expropriation without compensation. However, Malema himself has been embroiled in numerous corruption allegations.

One of the most significant scandals involved his alleged involvement in the On-Point Engineering tender fraud, where he and associates were accused of syphoning millions from government tenders in Limpopo. The subsequent VBS Mutual Bank scandal further tarnished his reputation, with accusations of money laundering and benefiting unlawfully from the collapse of the bank, which severely impacted rural communities and depositors.

Malema’s leadership of the EFF has been marked by confrontations with judicial authorities, including accusations of undermining the judiciary’s independence through unsubstantiated attacks on judges. His role on the JSC, tasked with appointing judges, has sparked controversy given his outspoken criticisms of judicial decisions that do not align with his party’s agenda.

Malema has been acquitted of various criminal charges. The NPA is currently charging Julius Malema with several offences. These include violating the Firearms Control Act of 2000 for allegedly firing an assault rifle during an EFF event and money laundering involving R4,58 million related to an irregular tender awarded by the Limpopo Department of Roads and Transport. Additional charges involve fraud and corruption connected to On-Point Engineers and other misrepresentations in tender processes.

If Malema is convicted and sentenced to more than 12 months of imprisonment without the option of a fine, he would be disqualified from serving as a member of Parliament under section 47(1)(e) of the Constitution. This disqualification would last five years after completing the sentence, significantly impacting his political career and ability to hold office.

4. Floyd Shivambu (EFF):

Floyd Shivambu, the Deputy President of the EFF, has emerged as a prominent yet controversial figure in South African politics. Ranked third on the party’s parliamentary list and seen as a potential successor to Julius Malema, Shivambu’s influence is significant. However, his career has been marred by serious allegations of corruption, particularly linked to the VBS Mutual Bank scandal. Accusations surfaced that Shivambu received illicit payments from VBS, which collapsed in 2018, due to a massive fraud scheme. These allegations have not only damaged his reputation but also triggered investigations and calls for accountability.

During coalition negotiations, Shivambu’s political ambitions came under scrutiny when reports emerged that the EFF demanded his appointment as Minister of Finance to join a governing coalition. This demand underscored his pivotal role within the party despite the controversies surrounding him.

He has also been filmed using physical force to push a journalist (i.e. what would be the crime of assault), but this charge was dropped by the Cape Town Magistrate’s Court in June 2022 due to insufficient evidence. Current criminal charges pending against him include those related to the VBS Mutual Bank scandal: Shivambu is accused of money laundering, having allegedly received at least R1,84 million through fraudulent schemes involving his brother’s companies. These funds, intended to support the EFF’s activities and Shivambu’s lifestyle, were part of a larger scheme that defrauded VBS Mutual Bank of over R2,7 billion.

Should Shivambu be convicted and sentenced to more than 12 months imprisonment without the option of a fine, he would be barred from serving as an MP and will remain so for five years after completing the sentence.

5. Zizi Kodwa (ANC):

Zizi Kodwa (former Sports, Arts and Culture Minister) has recently been sworn in as an MP. He faces criminal charges for corruption involving R1,7 million. This development highlights the trouble regarding the implementation of the ANC’s “step-aside rule” and casts a shadow over the ANC’s commitment to clean governance. The step-aside rule, introduced in 2017, mandates that ANC members charged with serious crimes must step aside from their duties to protect the party’s integrity and uphold due process. This rule is part of the ANC’s broader efforts to combat corruption and restore public confidence in its leadership.

If Kodwa is convicted and sentenced to more than a year in jail, without the option of a fine, he would no longer be able to be an MP and will remain barred from being one for five years after completing the sentence.

6. Malusi Gigaba (ANC):

Malusi Gigaba was number 27 on the ANC’s parliamentary list despite serious corruption allegations flowing from his close association with the Gupta family. The Zondo Commission recommended Gigaba be criminally prosecuted under the Prevention and Combating of Corrupt Activities Act, 2004 (“PRECCA”) and the Prevention of Organised Crime Act, 1998 (“POCA”) for corruption and racketeering. Despite these recommendations, Gigaba is not currently facing prosecution.

7. Renaldo Gouws (DA):

Renaldo Gouws, recently elected as an MP for the DA, faces significant controversy and public outcry following the surfacing of racist videos from his past. In these videos, Gouws is seen using derogatory language and advocating violence against black people. The DA has since suspended Gouws who faces an investigation by the DA’s Federal Legal Commission. He has been taken to the Equality Court by the South African Human Rights Commission (“SAHRC”), who believe that his utterances constituted hate speech as contemplated in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (“PEPUDA”).

Gouws is not facing criminal prosecution for the crime of crimen iniuria for making racist statements, although there is precedent for this. (E.g., the cases of Penny Sparrow and Vicky Momberg: both found guilty and sentenced to two- and three-years imprisonment, respectively.)

8. Busiswe Mkhwebane (EFF):

Busisiwe Mkhwebane, the former Public Protector, was impeached by Parliament in 2023. (Her contentious recommendations, such as altering the Reserve Bank’s mandate, have caused economic repercussions, including rand depreciation.) She is an EFF MP despite being prosecuted for two charges of perjury. If she is convicted and sentenced to more than a year in jail, without the option of a fine, she would be barred from being an MP until five years after completing the sentence.

9. Ian Cameron (DA):

Ian Cameron, founder of civil society group Action Society and recently elected as an MP for the DA, is known for the controversy resulting from his heated exchange with former Police Minister, Bheki Cele. (The incident escalated when Cele, visibly angered by Cameron’s criticism of police deployment and crime management, shouted at him to “shut up“. Resulting in Cameron laying charges of crimen iniuria and assault against Cele and the police officers present.) Cameron’s suitability as an MP was drawn into question due to his involvement in a “blackface” incident during a 2012 Afriforum Youth protest (for which he has since apologised). Cameron is not facing any criminal prosecution.

10. Supra Mahumapelo (ANC):

Supra Mahumapelo, former Premier of North West Province, faces multiple allegations of corruption and maladministration. He is not currently being criminally prosecuted.

11. Bonginkosi Madikizela (DA):

Bonginkosi Madikizela, recently sworn in as a DA MP, previously resigned as the DA Western Cape leader after being exposed for falsifying his academic qualifications. The scandal revealed Madikizela had lied about holding a BCom degree, leading to his suspension and subsequent resignation from his position as the MEC for Transport and Public Works. This controversy has raised questions about the DA’s internal vetting processes and the integrity of its leadership.

Although Madikizela is not facing criminal prosecution, his continued presence in Parliament and his ranking at 55^th on the DA parliamentary list underscore concerns about the party’s commitment to transparency and accountability. Critics argue that retaining individuals with questionable ethics tarnishes the DA’s image and undermines public trust in its governance. His case exemplifies the challenges political parties face in maintaining ethical standards while managing internal power dynamics and ambitions.

12. Faith Muthambi (ANC):

Faith Muthambi, ranked 38^th on the ANC national list, has recently been sworn in as an MP despite a controversial tenure as Minister of Communications from 2014 to 2017. This is despite Chief Justice Zondo referring her to the National Prosecuting Authority (NPA) for possible prosecution. Despite these controversies, Muthambi does not appear to be facing criminal prosecution as of the date of writing. Her appointment as an MP has raised concerns about accountability and ethical standards within South Africa’s political landscape. Her ranking on the ANC list and subsequent parliamentary presence without facing disciplinary action for her previous conduct highlight ongoing challenges in ensuring transparency and integrity within the country’s governance structures.

13. Des van Rooyen (MK):

Des van Rooyen, notorious for his brief tenure as Finance Minister appointed by Jacob Zuma during a controversial late-night cabinet reshuffle, was alleged to be a Gupta family “puppet”. He appears to not be facing any criminal prosecution at present and is now an MK MP.

14. Marshall Dlamini (EFF):

Marshall Dlamini, EFF Secretary-General, was convicted of the crime of assault. (He assaulted a police official in Parliament.) He was sentenced to three months in jail or a R6,000 fine. Dlamini remains an MP due to the nature of the sentence not being severe enough to bar him (a year in jail without an option to pay a fine is necessary in terms of the Constitution for someone to be barred from being an MP). Nonetheless, assaulting a law enforcement officer shows blatant disregard for the law and public order. This is deeply concerning behaviour from an MP who swore to respect and uphold the law, due to it being seen as breaking this oath of office. His position as the EFF’s Secretary-General and his re-election as an MP ranked fifth on the EFF list, highlight his influence within the party.

15. Andile Mngxitama (MK Party):

Andile Mngxitama, an MK MP and previous leader of the Black First Land First (“BLF”), faces allegations of corruption, fraud and money laundering. (These flow from State Capture Inquiry.) Mngxitama dismisses the charges as baseless, accusing the Inquiry of political bias against opponents of White Monopoly Capital.

Despite these allegations, he does not appear to be facing prosecution by the NPA. This allows him to maintain his seat in Parliament.

Conclusion:

The above shows the concerns about accountability and ethical governance raised by the return of MPs who do not respect and keep the law, at best, or who view themselves above it, at worst. MPs must uphold democratic values and public trust in government institutions. This points to the ongoing challenges within South Africa’s political sphere of a shortage of ethical persons.

The return of these MPs raises concerns about Parliament’s integrity and undermines citizens’ confidence in politicians putting South Africa first. It underscores the need for political parties to seriously consider what ethical standards they expect from their members and to enforce these, even at a cost to the party. Lead by example: Do the right thing, even if it hurts, so that only those who seek the welfare of the nation (and not their own) form part of your party’s ranks.

The Constitution disqualifies criminals who have served over a year in jail from running for office for five years post-sentence. Ensuring convicted individuals resign from Parliament immediately is essential for maintaining constitutional integrity and public trust. However, this article also highlights the number of MPs who were recommended for prosecution who are not facing prosecution by the NPA. Strengthening the NPA is crucial: It is currently heavily under-resourced, meaning it cannot prosecute cases effectively. Its strengthening is imperative for ensuring justice and accountability. Perhaps, even the institution of a special unit that focuses on prosecuting those who hold public office can be considered.

Citizens must exercise greater discernment when voting: Voters have the power to hold political parties accountable by demanding transparency and integrity from their representatives. Educating the electorate on the importance of ethical governance and encouraging informed voting can drive change from the grassroots level.

By combining these approaches, we can uphold constitutional principles and promote a governance framework rooted in accountability and integrity.