Economic Freedom Fighters (EFF) leader Julius Malema and fellow party MPs who stormed the stage during President Cyril Ramaphosa's State of the Nation Address (SoNA) claim that the Constitution protects their actions.

Following their antics on 9 February 2023, Malema and five other EFF MPs were found guilty of contempt of Parliament and slapped with a suspension, which bars them from attending the SoNA next month and compels them to apologise publicly in the National Assembly.

The group of MPs have turned to the Western Cape High Court to challenge the constitutionality of certain provisions of the National Assembly rules. The EFF wants the court to declare unconstitutional and unlawful the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. 

The six members are Malema, deputy president Floyd Shivambu, secretary-general Marshall Dlamini, and senior members Vuyani Pambo, Mbuyiseni Ndlozi and Sinawo Tambo.

In court papers, Malema, on behalf of all the affected members, said MPs had a right, under Section 58(1) of the Constitution, to freedom of speech.

They also had the right to exercise every other right contained in the Constitution, including the right to protest and assemble, Malema has argued.

In court papers, he said, "Accordingly, Section 17 provides for a solemn undertaking to citizens and non-citizens alike that everyone has a right, peacefully and unarmed, to assemble, demonstrate, picket and present petitions. The language in Section 17 is unambiguous: everyone has a right to engage in any of the activities that it spells out."

"Everyone is a word of wide import. In its ordinary sense, it is all-inclusive. The only internal qualifier contained in this constitutional provision is that anyone exercising this fundamental right must do so peacefully and unarmed."

Furthermore, Malema argued that an MP's right to freedom of expression could not be divorced from a right to protest.

"Members of Parliament cannot be found guilty for conduct which is protected by the Constitution. In fact, no evidence was led by Mr Masibulele Xaso to a single rule of Parliament that forbids a member from protesting inside the Chamber-rightfully so, as we submit, as no such rule would pass constitutional muster," he said.

Xaso is the secretary to the National Assembly who was called as a witness during the disciplinary hearing of the MPs.

"The fact that the members of the EFF intended to stand in front of the speaker and the president with their placards to raise their concerns on a range of issues, including the Phala Phala scandal and the abject failure of Parliament to hold the president accountable, cannot mean that the conduct is proscribed," Malema said.

He added that video footage showed that the EFF members had not posed a threat to the president or speaker of Parliament.

"That video, viewed objectively, demonstrates that the EFF members were carrying placards with their messages of protest. As they were climbing onto the stage to carry out the protest, they were physically removed from the chamber. The president and the speaker - who are alleged to have been threatened - are in fact shown in the video to be smiling. This shows that the case of the initiator is makeweight," he said.

Malema added that their protest had been met with violence and that the parliamentary security services had not waited for the protest to go ahead.

"Instead, they attacked the EFF without regard to their rights under the Constitution and their rights as Members of Parliament to hold the executive accountable. It is Parliament that allowed police to enter Parliament and use violence against the member of the EFF."

He said they had lodged a complaint regarding the violence, but that "this fell on deaf ears".

A court date for the matter to be heard is yet to be confirmed.