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[2016] ZAWCHC 210
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Economic Freedom Fighters v Speaker of the National Assembly; Malema and Another v Speaker of the National Assembly of the Republic of South Africa (14667/2015; 17666/2015) [2016] ZAWCHC 210 (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Coram:
Steyn, J
et
Henney,
J
CASE
NO: 14667/2015
In
the matter between:
ECONOMIC
FREEDOM
FIGHTERS Applicant
and
THE
SPEAKER OF THE NATIONAL
ASSEMBLY Respondent
CASE
NO: 17666/2015
In
the matter between:
JULIUS
SELLO
MALEMA First
Applicant
ECONOMIC
FREEDOM FIGHTERS
Second
Applicant
and
THE
SPEAKER OF THE NATIONAL
ASSEMBLY Respondent
OF
THE REPUBLIC OF SOUTH AFRICA
JUDGMENT:
14 DECEMBER 2016
HENNEY,
J:
Introduction
[1]
There are two cases before this court for adjudication. In case
number 14667/2015, the Applicant is the Economic Freedom Fighters
(“the EFF”) and the Respondent is the Speaker of the
National Assembly of the Republic of South Africa (“the
Speaker”). In case number 17666/2015, the Applicants are Mr
Julius Sello Malema (“Mr Malema”) and the EFF, and
the
Respondent is once again the Speaker. Mr Malema is the
president of the EFF and serves in the National Assembly as an
elected representative of the EFF. The EFF is the third largest
political party represented in the National Assembly of the Republic
of South Africa. It secured 6.35% of the national vote and acquired
25 seats in the National Assembly during
the
last general elections in April 2014. Mr Ngcukaitobi appeared
for the Applicants, while Mr Duminy SC and Ms R Williams
SC appeared
for the Respondent.
[2]
On 30 July 2015, all parties in the National Assembly, except the
EFF, adopted what was then known as Rule 53A. This Rule deals
with
the removal and suspension of a member of the National Assembly who
refuses to leave the Chamber when ordered to do so in
terms of Rule
70. I will at a later stage deal with the Speaker’s reasons for
the adoption of the Rule.
[3]
On 26 May 2016, the National Assembly approved a revised set of Rules
and the previous Rule 53A is now known as Rule 73 (I will
henceforth
for the sake of convenience and to prevent any misunderstanding refer
to it as Rule 73). The Rule, which is entitled
“
Removal of
members from Chamber and precincts”, states:
“
1) If a member
refuses to leave the Chamber when ordered to do so by the presiding
officer in terms of Rule 70 or 71, the presiding
officer must
instruct the Sergeant-at-Arms to remove the member from the Chamber
and the precincts of Parliament forthwith.
2)
If
the Sergeant-at-Arms is unable in person to effect the removal of the
member, the presiding officer may call upon the Parliamentary
Protection Services to assist in removing the member from the Chamber
and the precincts of Parliament.
3)
Unless
already suspended in terms of Rule 71, a member who is removed from
the Chamber in terms of Subrule (2) is thereby immediately
automatically suspended for the period applicable as provided for in
Rule 74, and may not enter the Chamber or the precincts for
the
duration of the suspension.
4)
If
a member resists attempts to be removed from the Chamber in terms of
Subrule (1) or (2), the Sergeant-at-Arms and the Parliamentary
Protection Services may use such force as may be reasonably necessary
to overcome any resistance.
5)
No
member may, in any manner whatsoever, physically intervene in,
prevent, obstruct or hinder the removal of a member from the Chamber
in terms of these Rules.
6)
Any
member or members who contravene Subrule (5) may, on the instruction
of the presiding officer, also be removed from the Chamber
and the
precincts of Parliament forthwith.
7)
If
proceedings are suspended for the purposes of removing a member or
members, all other members must remain seated or resume their
seats,
unless otherwise directed by the presiding officer.
8)
When
entering the Chamber on the instruction of the relevant presiding
officer-
(a)
members
of the Parliamentary Protection Services may not be armed; and
(b)
members
of the security services may not be armed, except in extraordinary
circumstances in terms of security policy.
9) Members who have
been removed from the Chamber will be escorted off the precincts by
Parliamentary Protection Services personnel
and will not be allowed
to enter the House or precincts of Parliament as the Rules prescribe.
10) If, after having
been removed from the Chamber, a member(s) offers resistance to being
removed from the precincts, members of
the security services may be
called upon to assist such removal.
11) In the event of
violence ensuing in the Chamber as a result of a member(s) resisting
removal, the presiding officer may suspend
proceedings, and members
of the security services may be called upon by the Speaker during
such period of suspended proceedings
to assist with the removal of
members from the Chamber and the precincts of Parliament forthwith in
terms of Section 4 (1) of the
Powers and Privileges Act; provided
that the security services may intervene directly anywhere in the
precincts and in the Chamber
in terms of Section 4 (2) of the Act
when there is immediate danger to the life or safety of any person or
damage to any property.
12) Whenever a member
is physically removed from the Chamber in terms of this Rule, the
circumstances of such removal must be referred
by the Speaker, within
24 hours, for consideration to a subcommittee of the Rules Committee
appointed for that purpose.
13) The House may
approve standard operating procedures, recommended by the Rules
Committee, for the exercise of this function,
in particular in
relation to the use of the Parliamentary Protection Services and
members of the security services.
14) For the purposes
of this Rule, “precincts” excludes the Chamber.
[4]
On 5 August 2015, the EFF under case number 14667/2015 instituted
proceedings in this court in which the following relief is
claimed in
relation to the then Rule 53A (now Rule 73):
1)
An order
declaring that Rule 73 of the Rules of the National Assembly is
unlawful, unconstitutional, invalid and of no force or
effect.
2)
In the
alternative to the relief sought above:
2.1 An order declaring
that no person employed by the South African Police Service or the
National Defence Force shall qualify to
be appointed into the
Parliamentary Protection Services.
2.2 An order declaring
that Rule 73 (3) be severed from the provisions of Rule 73.
[5]
This application was brought by the Deputy President of the EFF, Mr
Floyd Shivambo, who is also the Chief Whip of the party
in the
National Assembly.
[6]
After these proceedings were instituted, a debate on the report of
the Marikana Commission of Inquiry was held in the National
Assembly,
on 13 August 2015, during which Mr Malema made certain utterances to
the effect that Mr Cyril Ramaphosa, the Deputy President
of the
Republic of South Africa, with others, “
premeditated the
killing of mine workers in Marikana
” and that “
they
engaged in what is known in law as conspiracy to commit murder”.
Furthermore, that “
Mr Cyril ‘Worker Murderer’
Ramaphosa played a central role in influencing the police.”
[7]
When Mr Malema made the remarks there was an objection by one of the
members of the House as to whether or not these remarks
were
unparliamentary. The Chairperson at that stage, Miss M G Boroto,
deferred her ruling, which she later made on 9 September
2015.
According to her ruling, the remarks made by Mr Malema reflects on
the integrity of a member of the House and imputed improper
or
unworthy motives or action to that member.
[8]
According to her ruling, a member can only bring improper conduct on
the part of another member to the attention of the House
by way of a
separate substantive motion, comprising a clearly formulated and
properly substantiated charge. As such, the remarks
made by Mr Malema
in relation to Mr Ramaphosa were unparliamentary. Mr Malema was
required to withdraw the remarks. He refused
and rather replied
“
Cyril is a murderer ... and Cyril participated in the
conspiracy to murder workers”
.
[9]
At that stage, numerous interjections and points of order were raised
by other members in the House. Miss Boroto, notwithstanding
these
interruptions, once again requested Mr Malema to withdraw his
remarks. To which Mr Malema once again replied “
Cyril is a
murderer ... and Cyril participated in the conspiracy to kill the
workers in Marikana”.
The Chairperson then inquired from
him whether he was not prepared to withdraw these remarks, to which
he replied “
You can take me to jail for that. Cyril has got
blood of innocent people … (sic).
He further said,
“
I will never withdraw that. I will never apologise to
Cyril. Cyril must rot in jail.”
[10]
When he uttered these statements, there was a reply from some members
saying “
Yes
”. He further proceeded to say, “
He
is a murderer! He killed our people!”
The Chairperson
once again asked him to withdraw. Mr Malema’s microphone was
switched off and he requested that it be
switched back on. The
Chairperson refused and he stated that he would not listen to her
either. The Chairperson thereupon requested
Mr Malema to leave the
House. To this he replied “
I’m not leaving. I’m
not leaving”.
The Chairperson tried to speak to him
several times and requested him to leave. While trying to do so, Mr
Malema said “
call those people, to come and remove me …
to come and kill us here in the same way you killed the people in
Marikana!”,
which I suspect is a reference to the
Parliamentary Protection Services.
[11]
According to the Hansard records, several interjections were made by
other members during this encounter between the Chairperson
and Mr
Malema
.
[12]
At this stage the Chairperson informed the House that she would be
requesting the Sergeant-at-Arms to come into the House to
remove Mr
Malema from the Chamber. There were further interjections after she
made this decision and she requested from members
that order be
restored in the House. She was continuously interrupted and was
constrained to remark that there was no order in
the House. She
requested members to allow her to deal with the issue at hand,
whereafter she informed the House, that she had been
informed by the
Sergeant–at- Arms that Mr Malema would not leave the House.
[13]
The Chairperson once again informed Mr Malema that she had given him
an opportunity to comply with her directive to leave the
House with
the assistance of the Sergeant-at-Arms, and that his conduct was
interfering with the ability of the House to conduct
its business.
She then informed the House that she would call upon the
Parliamentary Protection Services to assist the Sergeant-at-Arms
to
remove Mr Malema from the Chamber so that the House could proceed
with its business. As a result of his removal from the House,
Mr
Malema was also automatically suspended.
[14]
As a result of this decision, Mr Malema instituted the proceedings
under case number 17666/2015 in this court on 11 September
2015. He
requested the following relief:
1)
An order
declaring that the decision of the Respondent on 9 September 2015 to
suspend him and to prevent him from carrying out his
responsibilities
as an elected member of the National Assembly is unconstitutional,
invalid and of no force or effect.
2)
An order
declaring that Rule 73 is unlawful, unconstitutional, invalid and of
no force or effect.
It
will be convenient to firstly deal with the EFF and Mr Malema’s
case against the adoption of Rule 73 as raised in both
cases.
The
EFF and Mr Malema’s arguments regarding the constitutionality
of Rule 73
[15]
The arguments of the EFF and Mr Malema, as contained in their
respective founding affidavits, are exactly the same. They argue
that
in an attempt to silence the EFF, the ANC’s representation in
Parliament pushed for an amendment to the Rules in order
to grant the
Speaker greater powers than she originally had in order to stifle the
ability of the EFF to ensure that there is accountability
of the
executive.
[16]
According to them, the Respondent is clearly not neutral and is
motivated by improper political consideration in protecting
the ANC
rather than promoting the Constitution of the Republic of South
Africa. They further argued that the Rule was devised -
and intended
for application - by members representing the majority political
party in the National Assembly against members representing
minority
political parties, especially the EFF. Also that the removal Rule was
devised specifically to prohibit and inhibit EFF
members
participating in the National Assembly the way they did when dealing
with the so-called Nkandla and Marikana reports.
[17]
According to the Applicants, they objected to these Rules on the
basis that the it would infringe upon section 58 of the Constitution
and that it was simply an attempt to divert from the real issue,
which is the political pressure resulting from the failure of
the
National Assembly to call upon the President to give effect to the
findings and determinations of the Public Protector. They
do,
however, accept that section 57 of the Constitution permits the
National Assembly to pass Rules with respect to its internal
arrangements, proceedings and procedures.
[18]
A further argument is that the removal of a member of the National
Assembly from the Chamber amounts to a violation of section
19 of the
Constitution, since it limits the member’s ability to represent
the constituency. For this they rely on a decision
of this court by
Davis J
[1]
,
that conduct directed at members of the National Assembly may impugn
upon the right of voters under section 19 of the Constitution.
However, they do not submit that members of the National Assembly may
not be punished for improper behaviour, including punishment
by
removal from the National Assembly.
[19]
Any removal from the National Assembly must, however, take place in
accordance with section 36 of the Constitution, and under
that
section the right may only be limited by a law of general
application. A law of general application exists in the form of
the
Powers, Privileges and Immunities of Parliaments and Provincial
Legislatures Act, 4 of 2004 (“PPI”). The Rules,
more
especially Rule 73, do not constitute a law of general application
and any removal of a member from the National Assembly
must comply
with the PPI. While the PPI is indeed a law of general
application, Rule 73 was not adopted in terms of that
act and is in
direct conflict with it. Section 12 (3)
[2]
of that act, clearly entitles members accused of contempt to a prior
disciplinary enquiry before a standing committee in accordance
with
the procedure as set out therein, that is reasonable and procedurally
fair, followed by resolution of the House.
[20]
This argument was later abandoned during the hearing of this matter,
although persisted with in the heads of argument as well
as the
supplementary heads filed on the day of the hearing. I suspect that
this cause of action was embarked upon in light of the
majority
judgement of
Madlanga
J
, in
Democratic
Alliance v Speaker, National Assembly and Others
[3]
(‘the DA case’)
,
where it was held at para [47], that in terms of the provisions of
section 58 (1) (a) only “
Rules
and orders of Parliament may limit freedom of speech in Parliament
and nothing else.
Limiting
this freedom by means of an Act of Parliament is at variance with
this Constitutional stipulation.”
[21]
Mr Ngcukaitobi, as a result of this changed tack, submitted that
while the applicants conceded that there may be occasions
when the
removal of a member is necessary, any Rule of Parliament adopted
pursuant to section 58 (1) (a) permitting the removal
of a member,
should be in line with the threshold as set out by
Madlanga
J
in
the
DA
case.
Specifically where it was held that, “
Interference
and disruption that may be sufficient for the removal of a member
must be of a nature that hamstrings and incapacitates
Parliament from
conducting its business. Even so, there must be no anticipation of
resumption of business within a reasonable time.””
[4]
[22]
According to Mr Ngcukaitobi, Rule 73 does not meet this threshold.
He maintains that the Rule must further appreciate
what
Parliament is about and it must appreciate the role of the Speaker,
which is to mediate different political views. He
further
argued that when a member who refuses to leave but does nothing
further, and he or she also does not interfere with the
business of
the House, there would be no justification for his or her removal. In
such an instance a member can be charged. He
argued that there
may well be instances where there is a disruption, but such
disruption would not incapacitate the House. In such
an instance,
there would be no need for the Rule. Even then, as
Madlanga
J
held, there must be no anticipation of resumption of business
within a reasonable time.
[23]
He further argued that all members have freedom of speech in the
National Assembly in terms of section 58 of the Constitution.
A
member cannot therefore be removed from the National Assembly for
conduct which is protected by section 58 of the Constitution.
This
court, as well as the Constitutional court, in the
DA case
(supra), ruled section 11 of the PPI to be unconstitutional where it
holds that a person referred to in the section would also
include a
member of the National Assembly, who creates a disturbance in
Parliament, and that such a person may also be arrested
and removed
from the precincts of Parliament on the order of the Speaker.
[24]
Rule 73 (3) allows the automatic suspension of a member pursuant to
Rule 74 which, according to applicants, is unlawful for
the following
reasons:
1)
It is not
rational, because it does not permit the procedural fairness due to
the affected member prior to the imposition of drastic
penalties, as
contemplated in Rule 74.
2)
It further
serves no legitimate purpose because if the purpose of the Rule, as
contemplated by Rule 73 (1) and (2), is to ensure
that the business
of the Chamber may continue uninterrupted, there is simply no point
in imposing punishment on a member who has
in any event been removed
from the Chamber.
3)
Any
sanction of suspension must comply with the provisions of section
12
[5]
of the PPI. That section
entrenches the right of any member to procedural fairness under the
auspices of the Standing Committee
in the event of any alleged
misconduct and suspension is to be weighed as one of the possible
sanctions after a member has been
permitted the right to a hearing.
The Applicants contend that the use of such power, to suspend without
any hearing, is arbitrary.
[25]
He also argued that the use of force as sanctioned by Rule 73 is in
direct violation of section 58 of the Constitution, which
provides
for freedom of speech in the Assembly. According to the Constitution,
members of the Assembly may not be arrested and
are immune from civil
liability for any statement made in the Assembly. The right to
freedom of speech is essential to protect
the foundational values of
the Constitution, which includes multi-party democracy, and so as to
permit members of the Assembly
to execute their responsibilities
effectively. Therefore, any threat of force to be deployed on members
of the Assembly, threatens
the right to freedom of speech, which is
guaranteed by the Constitution.
[26]
Regarding the Speaker’s reliance on the fact that other
Parliaments have comparable Rules for the removal of members
from the
House, as attached to the secretary of Parliament’s
affidavit
[6]
, the Applicants
argued that neither of them (secretary of Parliament and the Speaker)
discussed these Rules in any detail nor did
they mention which
jurisdiction they emanate from, nor why and in what respects they are
comparable to our Rules. It is also difficult
to understand,
particularly given the history of this country, how the Rules applied
in other countries can be of any assistance
to this court.
[27]
The Applicants further submit that this Rule breaches the separation
of powers doctrine by permitting the newly formed Parliamentary
Protection Services to assist in forcibly removing a member. The
Parliamentary security service includes the police and army, which
are under the control of the executive. The Constitution expressly
prohibits members of the security forces and the police from
acting
on partisan instructions. The EFF understands that members of the
Parliamentary Protection Services are recruited from the
ranks of the
police. If so, this constitutes a breach of the separation of powers.
Removal
and suspension of Mr Malema
[28]
Mr Malema argued that when he made remarks to the effect that
Mr Cyril Ramaphosa is a murderer, his opinion was informed
by the
fact that Mr Ramaphosa participated in the conspiracy to commit the
murder of 34 workers at Marikana in August 2012.
It was further
based on the common knowledge that Mr Ramaphosa was a shareholder and
director of Lonmin, the company that had employed
the workers who
were killed, and on publicly available material which had been
disclosed during the Marikana Commission of Enquiry.
[29]
His conclusions were also based on the fact that Mr Ramaphosa: 1)
described the workers who were employed by Lonmin and had
been
involved in the 2012 strike as “criminals,” and their
conduct as “dastardly criminal”; 2) called for
“concomitant action” to be taken against the workers; 3)
was in a unique position to influence political and state
actors,
being a member of the National Executive Committee of the African
National Congress and also the National Chairperson of
the National
Appeals Committee on disciplinary matters; 4) enjoyed sufficient
proximity of power but, also in fact, used
his power to exert
pressure on politicians to act in a pointed way; 5) called for the
deployment of the army in the context of
a strike, and that such a
call for the militarisation of the situation was tantamount to
calling for the killing of more employees;
5) advised the Minister of
Police on 12 August 2012 that more police were needed on the ground;
6) advised the Minister of
Minerals and Energy that her silence and
inaction, about what was happening in Marikana, was bad for her and
the government; 7)
advised the Minister of Police that what was
transpiring at Marikana was a criminal act when he knew that in fact
it was a strike
about wages; 8) on 15 August 2012 advised the
Minister of Minerals and Energy that she should “correct”
the characterisation
of the labour dispute into one of a “criminal
act” and to “get” the Minister of Police to act in
a “more
pointed way.”
[30]
Mr Malema alleged that, in his opinion, based on these facts which
are public knowledge, this amounts to conspiracy to commit
murder and
that Mr Ramaphosa is therefore a murderer. He states that Mr
Ramaphosa must clearly have foreseen that there would be
an
escalation of violence resulting from the deployment of security
measures. According to him it was further established at the
Marikana
Commission, that two commissioners of the South African Police
Service had taken into account improper political considerations
when
they made a decision to escalate the use of force at Marikana. The
Commission has also referred the matter to the National
Prosecuting
Authority, for an investigation into the allegations of murder.
[31]
According to Mr Malema, and the EFF, one of the persons who must be
charged for murder is Mr Ramaphosa and to this end he laid
a criminal
charge against him at the Marikana police station. Therefore, in his
view, there is an on-going investigation into the
murder charges
against Mr Ramaphosa. He contends that it was based on these
considerations that he made his remarks, all of which
are based on
publicly available information. It is also for these reasons that he
refused to withdraw his remarks. In his view,
he was entitled to
refuse to withdraw the remarks and was also entitled to refuse to
leave the House because the decisions affecting
him were unlawful and
unconstitutional.
[32]
Furthermore, he argues that his refusal to withdraw his comments
while debating in the House did not cause any disturbance
of the
proceedings, or any threat to any person’s life or property.
According to him, the decision to call him to withdraw
the remarks in
relation to Mr Ramaphosa, as well as the decision to eject him from
the House, was invalid and of no force and effect
for the following
reasons:
1)
His
comments were protected by freedom of speech, in terms of section 58
of the Constitution.
2)
He made
the comments in the context of a discussion about a matter of immense
public interest.
3)
Mr
Ramaphosa’s role in the Marikina tragedy is widely known and
according to Mr Malema he is entitled to hold and express
an opinion
on the matter, particularly bearing in mind the high political office
which Mr Ramaphosa occupies.
4)
There was
no rational basis for his ejection at the time, as he was not
disrupting the proceedings. And if his conduct constituted
misconduct, he should have been subjected to a proper disciplinary
enquiry under the PPI Act. He submits that the sanction
imposed
on him, without the procedures of the PPI having been followed, was
improper, because in terms of section 11 (2) of that
act members can
only be suspended after lawful due process had been followed.
5)
The
ejection was motivated by political considerations to silence the EFF
and to protect high-ranking officials of the ANC from
any criticism.
6)
There was
no procedural fairness observed in the decision and it was in breach
of the requirements of legality and the
Promotion of Administrative
Justice Act, 3 of 2000
.
7)
There was
no reason to eject him from the House as there was no threat to life
or property, and there was no disruption to the proceedings
which
could have justified such a drastic measure.
The
Speaker’s Case
[33]
According to the Speaker the National Assembly approved a revised set
of Rules. The Rules which are relevant to this application
are Rule
66, which deals with order in public meetings and rules of debate,
and the revised Rule 73, which deals with the removal
and suspension
of a member who refuses to leave the Chamber when ordered to do so.
The manner in which the Rules are to be implemented
is set out in the
Standard Operating Procedure in appendix C to the Rules.
[7]
According to her understanding, the Applicants’ objection is
not to the wording of the Rules, but to the notion that the
National
Assembly Rules provide for the removal of a member, and that member’s
suspension, which is dealt with in Rule 73.
[34]
The Speaker denies that this Rule is unconstitutional, unlawful or
invalid. According to section 57 of the Constitution, the
National
Assembly may determine its own internal arrangements, proceedings and
procedures, and make Rules and orders concerning
its business with
due regard to representative and participatory democracy,
accountability, transparency and public involvement.
Rule 73 was
adopted in July 2014, some 8½ months before the Constitutional
Court delivered judgement in the
DA case,
(supra) and it was
referred to by the court, without criticism. In relying on the PPI,
the Applicants overlooked the following:
1)
that
section 12 (13), which provides for the powers of the person
presiding at the meeting of the House, or a committee or joint
committee, is not affected by section 12; and
2)
the
inter-relationship between section 57 of the Constitution, which
permits the National Assembly to determine its own internal
arrangements, proceedings and procedures.
[35]
The allegation by Mr Malema that the Speaker is cynically undermining
the principle of separation of powers by using the police
to eject
members from the National Assembly, “
by simply renaming
them”
(meaning the police) as Parliamentary Protection
Services, is untrue and the contention is without merit for the
following reasons:
1)
The PPI
defines security services to mean those referred to in section 199 of
the Constitution, and the presence of security services
in the
Parliamentary precinct, including the Chamber in which the
proceedings of the House are conducted, is expressly permitted
in the
PPI (section 4, read with sections 2, 3 and 11).
2)
In terms
of section 199 (1) of the Constitution, the security services of the
Republic consist inter alia, of a single Police Service
established
in terms of the Constitution. The objects of the Police Service are
set forth in section 205 (3), which include “
to
prevent, combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce the law”.
3)
The
Security Policy of Parliament (“the policy”) established
the Parliamentary Protection Services to render protection
and
security in Parliament. The policy, amongst others, provides that
members of the Parliamentary Protection Services will take
action
inside the Chamber only when requested to do so by the presiding
officer concerned or when emergency circumstances so demand.
4)
Although
there has always been a police presence in Parliament, it is not
permissible for members of the SAPS to function
as a police
force in the Parliamentary precinct, since this would be in conflict
with section 199 (1) of the Constitution, read
with section 205
thereof.
5)
Furthermore,
in terms of section 4 (1) of the PPI, policing functions performed by
the security services of Parliament may occur
with the permission and
the authority of the Speaker or the Chairperson of the NCOP. Only in
the limited circumstances defined
in subsection (2) of the PPI, may
members of the security services intervene without permission in
terms of the Act, where there
is immediate danger to the life or
safety of any person or damage to any property.
6)
According
to the Speaker, there is nothing in the application that explains why
members of the SAPS or the SANDF should not be eligible
for
employment as members of the PPS.
[36]
The Speaker argues that the object of ordering a member to leave the
Chamber is as a means of last resort or penultimate resort
reserved
for the most serious cases. It is only applied to preserve and
restore the ability of the National Assembly and
all members to
fulfil their Constitutional functions and not to punish members for
misbehaviour.
[37]
The Applicants’ argument that the removal of a member should
only follow on an enquiry and report, followed by a resolution
of the
House, as contemplated in section 12 of the PPI, is wholly
unrealistic and impractical. If that approach should be followed
it
would mean the National Assembly’s proceedings can be brought
to a standstill by any member intent on causing disruption
(in a
proscribed manner), and that Parliament can be stymied in this way
until the committee and other processes under section
12 of the PPI
have run their course.
[38]
The Speaker states that experience has shown that those proceedings
take time and are capable of being delayed and dragged
out. The
approach of the Applicants would put the implementation of
parliamentary democracy under our Constitution at the mercy
of an
individual (or minority) that, according to the Applicants’
hypothesis, is behaving improperly. The revised Rules,
which are the
result of a multi-party process and enjoy the support of all parties
save for the Applicants, seek to prevent that
result.
[39]
Parliaments in other democracies have comparable Rules for the
removal of members from the House. The procedure in the
National Assembly is regulated by the Constitution, the National
Assembly Rules (“NA Rules”), the National Assembly
Guide
to Procedure 2004 (“the Guide”), the PPI, rulings by
presiding officers and conventions and practices. Rulings
on
procedure are made in accordance with the Parliamentary Rules, and
the conventions and practices, some of which are contained
in the
Guide as well as in precedent. Presiding officers are required to act
impartially and in the interest of the National Assembly
and
Parliament, according to the Constitution and the PPI (where it
applies). They seek to observe and apply the applicable NA
Rules and
follow the Guide.
[40]
The NA Rules and the Guide provide, and explain, the framework within
which the debates take place in the House, which has
to be done in an
orderly and decorous fashion. Order is necessary in the conduct of
the debates which can sometimes be robust,
to ensure that all members
have fair opportunities to participate. And, as stated in the Guide,
maintaining order in the House
is one of the Speaker’s vital
functions while presiding in the National Assembly.
[41]
In her Answering Affidavit she refers to the various Rules in terms
of Chapter 5 that are applicable during public meetings,
and the
Rules of debate which are applicable, and which members needs to
comply with. I will refer more fully to the Rules
applicable in
this case at a later stage.
[42]
The Speaker in her Answering Affidavit highlights a series of events
which led to the disruption of the proceedings in Parliament
on
different occasions, which demonstrated the need for a Rule to ensure
that Parliament could continue to function efficiently
and
effectively, where members had been ordered to withdraw in terms of
Rule 70 or 71 for proscribed behaviour, but refused to
comply. These
events illustrate the principle that the power to order a member to
leave the Chamber must be supported by the appropriate
power to
attain the removal of a member who refuses to comply. The debates
around the Public Protector’s report (which has
become known as
the Nkandla report), were severely disrupted on several occasions,
resulting in the business of the House as a
whole being suspended,
and members being ordered to withdraw from the House.
[43]
When members refused removal by the Sergeant-at-Arms, and where
necessary, the Parliamentary Protection Services were called
upon to
assist with the removal. In the ordinary course, where a member is
directed to withdraw a remark and refuses, such member
would be
ordered to withdraw from the Chamber. When a member withdraws there
would be compliance with the order of the Chair. The
Speaker cites,
as a further example, that on 21 August 2015 the House met at 14h10
for the President’s question time, however
at 14h58 she had to
suspend the business of the House due to grave disorder and the
business only resumed after 16h15.
[44]
In this regard, the Speaker made available real evidence in the form
of video and audio recordings of these proceedings. According
to her,
when there is deliberate contravention of the Rules, grossly
disorderly conduct and defiance of the authority of the Chair,
it
detracts from the rights of the other members whose participation in
the proceedings and fulfilment of their Constitutional
mandates, is
hindered or denied.
[45]
On 13 November 2014, once again the proceedings in the National
Assembly were disrupted on a number of occasions, which is
evident
from the video footage taken in the National Assembly on that date,
as well as a minute which was annexed.
[8]
This occured again during the State of the Nation address on 12
February 2015.
[9]
On 11
March 2015
[10]
, there were
disagreements among the members with numerous interjections and
interruptions.
[46]
On 18 June 2015
[11]
the
parties, in terms of the agreed party sequence, were expected to put
questions to the President for reply on that day, and
6 questions
were put to the President. However, shortly after the session
commenced, members of the EFF raised various points,
said to be
points of order, which resulted in the Speaker having to suspend the
business of Parliament to afford the Chief Whips
an opportunity to
meet, consult and agree upon how to address the disruptions that had
occurred up to that point.
[47]
When the proceedings continued at 15h52, she was informed that all
the parties, except the EFF, had agreed to continue with
the
proceedings scheduled for the session. The EFF’s Chief Whip
expressed the party’s disagreement. The Speaker said
that
despite her attempts to enable the House to proceed on that day,
members of the EFF continued to raise purported points of
order, many
of which she considered to be invalid. On the occasions that she
recognised the President, one or more of the members
of the EFF would
raise an alleged point of order, which effectively prevented the
purpose of the question session being achieved,
namely holding the
executive to account. She was therefore constrained to adjourn the
House due to the gravely disorderly conduct
and continued
disruptions.
[48]
According to her these events are illustrative of the necessity for a
Rule such as Rule 73, which can be used in extreme cases,
to maintain
order. According to her such a Rule is necessary to ensure that
Parliament can execute its Constitutional mandate,
which includes
holding the executive to account. As a result of this, the
multi-party subcommittee, which was in the process
of reviewing the
Rules of the National Assembly, was mandated to review the National
Assembly Rules to consider measures to address
the disruptions in the
House.
[49]
Regarding the allegations made by Mr Malema, the Speaker argues that
the Applicants have no reason to fear that Rule 73 will
be used to
their detriment, since it will only be invoked if a member acts in
the proscribed manner to such a degree that it justifies
its
invocation. According to her, it has become evident that the power to
remove members in the circumstances as contemplated in
Rule 73, is
necessary to support the proper functioning of the National Assembly.
[50]
The allegation by the Applicants that the new Rules will be abused by
the Speaker, to the detriment of the EFF, is without
foundation.
Contrary to their assertion, it will however advance multi-party
democracy and the right of free speech to all members
of the National
Assembly. The Speaker further denies that Mr Malema was arbitrarily
suspended without any regard to the provisions
of the Rules or the
Constitution.
[51]
He was suspended lawfully and validly and with due regard to the
Rules of the National Assembly and the Constitution. The proceedings
on 9 September 2015 were severely disrupted by Mr Malema, and the
disruptions would in all probability have continued had Rule
73 not
been applied. According to her, Mr Malema was not exercising his
right to free speech, but if anything he detracted from
the rights of
others to do so. This is evident from Hansard and the video footage
relevant to this event. She states that his behaviour
was not only
gravely disorderly, but he also treated the presiding officer with
contemptuous disrespect.
[52]
Mr Malema’s suspension was reported to a multi-party committee
within 24 hours, and he could have used this opportunity
to state his
case to the committee regarding his suspension when the matter was
considered. The Speaker further denies that
the invocation of
the Rule was a punishment, but it was rather aimed at addressing
disruptions in the National Assembly. Mr Malema
fails to distinguish
between members’ rights in terms of section 58 of the
Constitution, and disorderly and otherwise proscribed
behaviour in
the National Assembly.
[53]
There is no basis for Mr Malema’s assertion that the Rule was
motivated by an ulterior motive to protect the President.
The
Rule was unanimously adopted by all the other parties. The language
used by Mr Malema was manifestly unparliamentary and he
was required
to withdraw his remarks. The Chairperson, according to her, was
clearly entitled (and obliged) to require him to do
so.
[54]
She further argues that he admits that he refused to do so and did
not endeavour to express himself in a manner which complied
with the
requirements of parliamentary decorum. In addition, Mr Malema further
admits that he refused to comply with any of the
directions of the
presiding officer and defied her authority.
[55]
The Speaker submits that when Mr Malema made these remarks it was not
a question of whether he was right or wrong, but rather
whether his
behaviour fell within the scope of the conduct proscribed at the
time.
[56]
Whether Mr Malema’s utterances were protected in terms of
section 58 of the Constitution is not the issue, but that the
freedom
of speech afforded by section 58 is subject to the Rules and orders
of the National Assembly. According to Chapter 11 of
the Guide,
[12]
it is not for the Chair to judge the accuracy or otherwise of
statements made in the House and it would be inappropriate,
therefore,
for her to comment on the correctness or otherwise of the
allegations Mr Malema made in the House, which he repeated in his
affidavit.
[57]
The language used by him on 9 September 2015 was plainly
unparliamentary and contravened the old Rule 63 (now Rule 68). The
Rule at that stage, prior to the Rules being revised in May 2016, was
that where a member wished to bring alleged improper conduct
of
another member to the attention of the House, or impute improper
motives to others, or cast personal reflections on their integrity
as
members, it should be done in a clearly formulated and properly
substantiated substantive motion in accordance with the standing
order that regulated such procedure at the time.
[58]
Mr Malema’s contentions that there had been no threat to life
or property is correct as far as he mistakenly seems to
contend that
those are the only circumstances under which Rule 73 can be invoked.
The Speaker denies that the Rule was adopted
to silence the EFF.
She contends that it does not deal with silencing any member of any
party. The contention that it was
adopted to stifle the ability of
the applicants to deal with the decisions of the Public Protector is
also incorrect. The Rule
was not adopted to give greater powers to
the Speaker, because the Speaker is not the only person who presides
over the proceedings
in the National Assembly. His references to and
reliance on Section 12 (3) of the PPI overlooks Section 12 (13)
[13]
of that act.
[59]
The Speaker contends that only a member who behaves in a proscribed
manner, and then refuses to comply with an order to withdraw,
faces
possible removal from the House.
[60]
She further denies that the Rule breaches the separation of powers
doctrine. The removal of a member from the Chamber does
not
constitute a violation of section 58 of the Constitution. Members who
are removed are neither arrested nor held civilly liable.
She
contends that at any stage when Rule 70 is employed, a member can
withdraw voluntarily. In such cases, there is no suspension.
The
manner in which the Rules are framed means that removal only takes
place where there has been a further refusal to obey the
order to
withdraw, and a refusal to leave when approached by the
Sergeant-at-Arms as directed by the presiding officer.
[61]
According to the Speaker a period of suspension may be discharged or
reduced under Rule 75 on a member’s written and
approved
expression of regret. She denies that when members are removed
from the chamber, they are assaulted. In this regard,
she refers to
the operating procedure
[14]
adopted by the National Assembly and the relevant video footage of
this incident.
[62]
She further denies the allegation that any mere disruption justifies
invocation of Rule 73 and refers to the provisions of
Rules 69 and
70. Any removal, and consequent suspension, is in any event
considered by a multi-party committee.
[63]
Issues for consideration
1)
Whether
Rule 73 is unlawful, unconstitutional, invalid and of no force or
effect due to the fact that it infringes a member of Parliament’s
right to freedom of speech in the National Assembly;
2)
And if
not, whether Miss Boroto on 9 September 2015, could have ordered the
Sergeant-at-Arms to remove Mr Malema when he refused
to withdraw from
the House;
3)
And
whether she was justified in calling on the Parliamentary Protection
Services to forcibly remove Mr Malema from the House.
Evaluation
[64]
I do not agree that the amendment of the Rules seeks to grant the
Speaker greater powers than she originally had, in order
to stifle
the ability of the EFF to hold the executive accountable, for the
simple reason that the EFF does not argue that the
amended Rules are
only applicable to them and not to other parties in the National
Assembly. There is therefore no merit in this
argument and it needs
no further discussion. There is also no merit in the argument that
the amended Rule was devised, and intended
for application, by
members representing the majority political party in the National
Assembly against members representing minority
political parties, and
especially the EFF. It is common cause that all the political
parties, including other minority parties
of which some are smaller
than the EFF, agreed to the adoption of these amended Rules
[15]
– the EFF being the exception.
[65]
The critical question for serious consideration is whether Rule 73
can be constitutionally justified in terms of the provisions
of
section 58 of the Constitution. Freedom of speech in the
National Assembly and its committees is guaranteed by the
Constitution
in terms of the provisions of section 58 (1) (a)
[16]
.
As
Madlanga
J
held in
DA
case
(supra) at paragraph [38]: “
the
privilege contained in ss 58 (1) (a)
[17]
and 71 (1) (a) can never go so far as to give members a licence so to
disrupt the proceedings of Parliament that it may be hamstrung
and
incapacitated from conducting its business. This would detract from
the very raison d’être of Parliament. Section
57 of the
Constitution provides that the National Assembly may determine and
control internal arrangements, proceedings and procedures
and make
Rules and orders concerning its business. Of this power, Mahomed CJ
tells us in De Lille: ‘There can be no doubt
that this
authority [contained in s 57 (1)] is wide enough to enable the
Assembly to maintain internal order and discipline in
its proceedings
by means which it considers appropriate for this purpose. This would,
for example, include the power to exclude
from the Assembly for
temporary periods any member who is disrupting or obstructing its
proceedings or impairing unreasonably its
ability to conduct its
business in an orderly or regular manner acceptable in a democratic
society. Without some such internal
mechanism of control and
discipline, the Assembly would be impotent to maintain effective
discipline and order during debates.”’
[18]
[66]
Madlanga
J
at
paragraph [39] states: “
More
pertinently, ss 58 (1) (a) and 71 (1) (a) of the Constitution make
freedom of speech in the two Houses subject to ‘the
Rules and
orders’ envisaged in ss 57 and 70. That must mean Rules and
orders may – within bounds that do not denude
the privilege of
its essential content – limit parliamentary free speech.”
In
De
Lille and Another v Speaker of The National Assembly
[19]
,
Hlophe J (as he then was)
at
para [35] expressed the view that freedom of speech conferred by
section 58 (1) of the Constitution is an absolute freedom in
the
sense that it is subject only to the Rules and orders of the
Assembly. It is not subject to the limitations clause contained
in
section 36.
[67]
Both the Supreme Court of Appeal and the Constitutional Court have
recognised that the National Assembly undoubtedly has the
ability and
powers to maintain internal order and discipline in its proceedings,
including the power to exclude from the Assembly,
temporarily, any
member(s) who is disrupting or obstructing its proceedings, or
impairing unreasonably its ability to conduct its
business, in terms
of section 57 (1). The Rules dealing with public meetings and Rules
of debate is dealt with in Chapter 5 of
the National Assembly Rules
and can be regarded as the internal mechanisms of control and
discipline in the Assembly. I referred
to these Rules earlier on in
the judgment, but I will deal with them in more detail hereunder.
Rule 73 is one such mechanism,
together with other Rules,
dealing especially with the conduct of members in the House.
[68]
A member of the National Assembly therefore has freedom of speech in
the Assembly and its committees, subject to these Rules
and
orders adopted in terms of section 57 (1). These Rules not only
include Rule 73, but also Rules 69, 70, 71 and 74. These
Rules are
interrelated and have a sequential effect. Rule 69 deals with gross
disorderly conduct and states that members
may not engage in
grossly disorderly conduct in the House, which includes: a)
deliberately creating serious disorder or disruption;
b) in any
manner whatsoever, physically intervening, preventing, obstructing or
hindering the removal of a member from the House
who has been ordered
to leave the House; c) repeatedly undermining the authority of the
presiding officer, or repeatedly refusing
to obey rulings of the
presiding officer or repeatedly disrespecting and interrupting the
presiding officer while the latter is
addressing the House; d)
persisting in making serious allegations against a member without
adequate substantiation or following
the correct procedure; e) using
or threatening violence against a member or other person; or f)
acting in any other way to the
serious detriment of the dignity,
decorum or orderly procedure of the House.
[69]
In terms of Rule 70 (1) the presiding officer may, if he or she is of
the opinion that a member is deliberately contravening
a provision of
these Rules (under chapter 5), or that a member is disregarding the
authority of the Chair, or that a member’s
conduct is grossly
disorderly, order the member to leave the Chamber immediately for the
remainder of the day’s sitting.
Under Sub-Rule 2 of Rule 70, a
member who is ordered to leave the Chamber must immediately withdraw
from the precincts of Parliament.
[70]
Rule 71 provides for the naming or suspension of a member. It reads:
“
If a presiding
officer is of the opinion that a contravention committed in terms of
Rule 70 by a member of the House is of so serious
a nature that an
order to leave the Chamber for the remainder of the day’s
sitting is inadequate, the presiding officer may
-
(a) if he or she is the
Speaker, suspend the member for a period provided for in Rule 74 and
order him or her to leave the Chamber
immediately; or
(b) if he or she is not
the Speaker, name the member and order him or her to leave the
Chamber immediately and not participate in
any parliamentary
activities until the Speaker, after consultation with the presiding
officer, has announced what action is to
be taken against the member
in terms of these Rules, including whether such member will be
suspended for a period provided for
in Rule 74; provided that the
Speaker’s decision must be announced within two working days
after the member has been named.”
[71]
The Applicants in this matter do not attack the validity and/or the
constitutionality of any of these Rules mentioned above.
They also do
not attack any of the other Rules dealing with order in public
meetings and Rules of debate, except Rule 73 and more
specifically 73
(3) of Chapter 5. It would seem that the manner in which the Rules
are structured is such that Rule 73 only finds
application when a
member refuses to leave the Chamber when ordered to do so by the
presiding officer in terms of Rule 70 or 71.
This will only happen in
the case when the presiding officer, in terms of Rule 70, is of the
opinion that a member is “
deliberately contravening a
provision of these Rules, or that a member is disregarding the
authority of the chair, or that a member’s
conduct is grossly
disorderly as described in Rule 69”
and the member is
ordered to leave the Chamber immediately for the remainder of the
day’s sitting, and refuses to leave the
Chamber. Should the
member leave the Chamber as instructed to by the presiding officer
there would be no need for the presiding
officer to exercise his or
her powers in terms of Rule 73.
[72]
Should this not happen the presiding officer must instruct the
Sergeant-at-Arms to remove the member from the Chamber and precincts
of Parliament. Parliament has adopted Standard Operating
Procedures
[20]
that have to be
complied with when a member is removed from the Chamber and precincts
in terms of Rule 73. In terms of the Standard
Operating Procedure,
the Sergeant-at-Arms approaches the member(s) to explain in a
respectful manner that the instruction of the
presiding officer must
be complied with and that failure to do so can constitute a grave
offence and have serious implications,
including that the member(s)
may need to be physically removed from the Chamber.
[73]
Should the Sergeant-at-Arms be successful in removing the member from
the Chamber then there would be no need for the presiding
officer to
call on the Parliamentary Protection Services to assist in removing
the member from the Chamber and the precincts of
Parliament. In terms
of Sub-Rule 2 of 73, if the Sergeant-at-Arms is unable, in person, to
effect the removal of the member, the
presiding officer may call upon
the Parliamentary Protection Services to assist in removing the
member from the Chamber and the
precincts of Parliament. Before that
happens, however, in terms of the Standard Operating Procedure the
Sergeant-at-Arms indicates
to the presiding officer that the
member(s) refuses to comply, where after the presiding officer would
then inform the House that
the Parliamentary Protection Services are
to be called upon to assist. Furthermore, in terms of the Standard
Operating Procedure,
the Parliamentary Protection Services personnel
enter the Chamber upon the instruction of the presiding officer and
proceed to
remove the member(s) under the direction of the
Sergeant-at-Arms.
[74]
What Rule 73 clearly indicates is that the removal from the Chamber
by force is a measure of last resort against a recalcitrant
member(s), following measures which include a voluntary request to
leave the Chamber, as well as a request by the Sergeant-at-Arms
to
leave the Chamber with his or her assistance. If regard is to
be had to the structure of the Rules there is a progression
from a
voluntary manner in which a member is required to leave the Chamber
when requested to do so by the presiding officer, to
a less forceful
and unrestrained manner, where such a request is made by the
Sergeant-at-Arms, to a more forceful removal, as a
last resort, by
the Parliamentary Protection Services.
[75]
Clearly before a member is forcefully removed, non-forceful means are
first exhausted. Then only is this forceful removal of
a member
embarked upon, and only under circumstances where such member resists
removal from the Chamber by the Sergeant-at-Arms.
The forceful
removal of a member, in my view, is not resorted to in an arbitrary
and capricious manner. I also agree with the Speaker
that it would be
wholly unrealistic and impractical to apply the provisions of section
is 12 (3) of the PPI under circumstances
where the conduct of a
member(s) is such that it hamstrings and incapacitates Parliament
from conducting its business and where
order and discipline needs to
be summarily restored in order for Parliament to proceed with its
business after it had been disrupted.
Should the proceedings, as
contemplated in section 12 (3), first be embarked upon Parliament can
be stymied in this way until the
committee and other processes under
section 12 of the PPI have run their course. The Speaker has clearly
made out a case given
the circumstances she has highlighted and the
evidence that she has presented in this application. It is not
disputed by the Applicants
that there is indeed a dire need and
necessity for such a Rule.
[76]
The Speaker, in my view, has shown beyond any doubt that there are
instances of interference and disruption that justify the
removal of
a member who hamstrings and incapacitates Parliament from conducting
its business. She has also shown in the evidence
that has been
presented by means of Hansard, as well as real evidence (video and
audio recordings), that such incidents of disruption
would make it
impossible for the House to resume with the business of Parliament in
the ordinary course. It is accepted, as stated
in
Democratic
Alliance v African National Congress and Another
[21]
that: “
Political
life in democratic South Africa has seldom been polite, orderly and
restrained. It has always been loud, rowdy and fractious.
That is no
bad thing. Within the boundaries the Constitution sets, it is good
for democracy, good for social life and good for
individuals to
permit as much open and vigorous discussion of public affairs as
possible.”
[77]
However, it can surely not be the exercise of political free speech
and activity, as contemplated by section 58 (1) of the
Constitution,
to deliberately contravene the Rules of Parliament, behave in a
grossly disorderly manner, to defy the authority
of the
Chairperson, to show contempt to a Chairperson or presiding officer,
or to deliberately and without legitimate reason raise
purported
points of order, to stifle political free speech of another member
even when you have utter disregard or contempt for
such a member. It
also cannot be that when a member(s) acts in a grossly disorderly
manner as defined and set out in Rule 69 that
such conduct can be
characterised as free political speech and activity
[78]
Such incidents and conduct can surely not be “
within the
boundaries which the Constitution sets
”. None of this is
disputed by the Applicants. On the contrary, such conduct is rather
shameful, disgraceful and irresponsible,
not befitting the holders of
the office of a member of Parliament, who are the guardians of
democracy, who should set an example
for society and the electorate
who voted them into power. It is conduct that is at odds with the
noble values of our Constitution.
[79]
It is for these very reasons that the Constitution empowers
Parliament, in terms of section 57, to control its internal
arrangements,
proceedings and procedures which would include the
power to exclude from the Chamber any member disrupting or
obstructing its proceedings,
or unreasonably impairing its ability to
conduct its business in an orderly or regular manner acceptable in a
democratic society.
It is also for this very reason that section 58
(1) of the Constitution provides that members of the National
Assembly have freedom
of speech in the Assembly and its committees,
subject to its Rules and orders
. (emphasis added)
[80]
The reasons advanced, based on the evidence for the adoption of the
Rules, are eminently reasonable and rational. The fact
that it was
adopted by all other political parties, even those smaller than the
EFF endorses this view. Also given that such
disruptions and
the incidents of disorderly conduct, went far beyond exercising
Parliamentary free speech. The means adopted therefore,
which is the
forceful removal of a member for proscribed behaviour that would
only
disrupt and incapacitate the business of Parliament, would be
proportionate to achieve order and discipline in Parliament to
proceed
and conduct its business in an orderly or regular manner
acceptable in a democratic society.
[81]
I do not think that there is any merit in the argument that if a
member of the South African Police Service or the National
Defence
Force is appointed into the Parliamentary Protection Services, that
it will offend against the doctrine of separation of
powers. When
appointed to the Parliamentary Protection Services, such persons will
render protection and security services in Parliament
in terms of the
security policy for Parliament, and not function independently from
the authority of Parliament. Furthermore in
terms of section 4 (1) of
the PPI, members of the security services may enter upon and remain
in the precincts for the purpose
of performing any policing function,
only with the permission and under the authority of the Speaker or
the Chairperson. Any function
performed not in accordance with
section 4 (1) of the PPI will therefore be unlawful. The Applicants
have not made out a case that
the security services, by being part of
the Parliamentary Protection Services, will usurp the functions - and
undermine the authority
- of Parliament.
[82]
The next question to consider is the rationality of the automatic
suspension of a member, in terms of Rule 73 (3), who has
been removed
in terms of Rule 73 (2) for the period provided for in terms of Rule
74, and its interrelationship with section 12
(3) of the PPI. In
terms of chapter 4 of the PPI, section 12 states the following:
Disciplinary action against members
for contempt-
12(1)
Subject
to this Act, a House has all the powers which are necessary for
enquiring into and pronouncing upon any act or matter declared
by or
under section 13
[22]
to be contempt of Parliament by a member, and taking disciplinary
action provided therefore.
(2) A House must
appoint a standing committee to deal with all enquiries referred to
in subsection (1).
(3) Before a House
may take any disciplinary action against a member in terms of
subsection (1), the standing committee must-
(a) enquire into the
matter in accordance with a procedure that is reasonable and
procedurally fair; and
(b) table a report on
its findings and recommendations in the House.
[83]
A series of sanctions is set out in subsection 5 of section 12 of the
PPI, which can be imposed on a member when a House finds
a member
guilty of contempt, ranging from a formal warning, reprimand, order
to apologise to Parliament or the House or any other
person, the
removal or suspension of a member for a specified period from any
parliamentary position occupied by the member, a
fine not exceeding
the equivalent of one month’s salary and allowances payable to
the member and the suspension of the member
with or without
remuneration for a period not exceeding 30 days.
[84]
I agree with the argument of the Applicants that if the purpose of
removing a member from the Chamber is to prevent disruptions
and to
restore discipline, so that Parliament can continue with its business
in an orderly or regular manner acceptable in a democratic
society,
and further to prevent undisciplined members from disrupting its
proceedings, then once that member has been removed,
an automatic
suspension without hearing is unnecessary.
[85]
Such automatic suspension is for the period provided for in Rule 74
and as such a member may not enter the Chamber or
the precincts for
the duration of the suspension. This sanction is clearly imposed
without affording such member the opportunity
to state his or her
case before such suspension takes place, which in my view would be
procedurally unfair.
Hoexter:
Administrative Law in South Africa
(2ed)
at 363
says: “
Procedural
fairness in the form of audi alteram partem is concerned with giving
people opportunity to participate in the decisions
that will affect
them, and – crucially - a chance of influencing the outcome of
those decisions. Such participation is a
safeguard that not only
signals respect for the dignity and worth of the participants but is
also likely to improve the quality
and the rationality of
administrative decision-making and to enhance its legitimacy.”
[23]
[86]
It seems that the sanction comes into operation almost immediately,
which is an immediate punishment as a result of a member
being
forcibly removed from the chamber. This, in my view, is arbitrary and
irrational. Nothing prevents the Chairperson or Speaker,
or an
appropriate committee, from instituting further disciplinary
proceedings in the manner contemplated in section 12 (3) of
the PPI,
which provides for such a procedure before such sanction is imposed.
If there is a real need to impose a further sanction.
[87]
I am of the view that when a member disrupts the proceedings in
Parliament, or makes themselves guilty of grossly disorderly
conduct,
or disregards the authority of the chair, that such conduct would
clearly fall within what constitutes contempt of Parliament
in terms
of section 13, and as such the provisions of section 12 (3) of the
PPI would be applicable.
[88]
The Speaker, in my view, has failed to make out a case as to why a
member should be suspended without giving him or her a hearing
in
terms of the provisions of section 12 (3) of the PPI.
[89]
I am therefore in agreement with the Applicants that Rule 73 (3)
which allows for the automatic suspension of a member pursuant
to
Rule 74, is unlawful and unconstitutional, and falls to be set aside.
The
Constitutionality of the decision to remove Mr Malema from the
National Assembly
[90]
Mr Malema seeks an order declaring that the Chairperson,
Miss Boroto’s, decision taken on 9 September 2015,
to suspend
him and to prevent him from carrying out his responsibilities as an
elected member of the National Assembly is unconstitutional,
invalid
and of no force or effect. It is clear from the evidence presented,
and it is also common cause, that it was not the Speaker
that made
the contentious decision on 9 September 2015, but Miss Boroto. He
clearly failed to cite Miss Boroto as the appropriate
person who made
the decision. There is no explanation why this was not done. On this
ground alone, I agree with the Respondent
that this prayer should be
dismissed. I will nevertheless deal with the application of Mr Malema
due to the fact that the Speaker
has a real and substantial interest
in the outcome regarding the validity and constitutionality of the
removal of Mr Malema from
Parliament in terms of Rule 73. She
was also correctly cited for the similar relief he seeks, with the
EFF, in terms of Rule
73 and Rule 73(3).
[91]
Mr Malema’s utterances were ruled to be unparliamentary due to
the fact that he made an unsubstantiated allegation against
the
integrity of a member, and imputed improper or unworthy motives to
such member, or cast personal reflections on the integrity
of such a
member, without doing so by way of a separate substantive motion.
This standing order, which follows a ruling made by
a former speaker
of the National Assembly, Dr F N Ginwala on 17 September 1996, forms
part of the Rules and orders of the National
Assembly, which it is
empowered to adopt in terms of section 57 (1) (a) of the
Constitution. All members of the National Assembly
are therefore
bound to comply with these Rules and standing orders.
[92]
Mr Malema’s case, if it is correctly understood, is not an
attack against the validity or constitutionality of the standing
order. It is rather against the decision of the Chairperson that his
conduct, when he made the remarks, was unparliamentary for
his
failure to comply with the standing order. Absent any constitutional
challenge to the standing order, the Speaker or appropriate
Chairperson exercises a discretion to implement the standing order,
which discretion is to be exercised lawfully, i.e. in a manner
consistent with the Constitution and the rights and values for which
it provides. See in this regard, the decision of a full bench
of this
court of
Lekota
and Another v Speaker, National Assembly and Another
.
[24]
[93]
In my view, that is also exactly what the Chairperson did on 9
September 2015, as stated on page 582-583 of the record. She
also did
not Rule that Mr Malema or any member may not make such allegations
but said “
Such
allegations can only be brought to the attention of the House by way
of a properly substantiated motion, supported by evidence.”
She clearly did not make a ruling that Mr Malema may not exercise his
right to free political speech in the manner he did. Such
exercise of
free political speech must be made within the bounds of the Rules and
orders of Parliament as stated in terms of section
58 (1) (a) of the
Constitution.
[94]
She also did not make a decision as to whether the remarks made by Mr
Malema are correct, truthful or accurate. She ruled it
to be
unparliamentary within the confines and boundaries of the standing
order. What Mr Malema did, was to fail to comply with
the provisions
of the standing order. When he uttered the words that Mr Ramaphosa,
‘
premeditated the killing of mine workers in Marikana; Cyril
is a murderer…Cyril participated in the conspiracy to murder
workers’
it was clearly an attempt to bring improper
conduct to the attention of the National Assembly, to impute improper
or unworthy motives
on the part of Mr Ramaphosa (a member) and
clearly an attempt to cast personal reflections on his integrity.
[95]
In
Chairperson
of the National Council of Provinces v Malema
[25]
it was held at para [18] that: “
The
purpose of the standing order is to ensure the parliamentary debates
are not clouded by personal insults. Ad hominem attacks
do not
contribute to democratic discourse, hence they are not protected. But
the standing order does not – constitutionally
cannot –
go as far as impeding political speech. It does not censor criticism
of the government or its ruling party”.
I
respectfully agree with the sentiments expressed by
Ponnan
JA
.
The difference between that case and this case was that in the
present matter the remarks were directed at a member of the
House, Mr
Ramaphosa, personally, whereas in the mentioned case it was not
directed at a
member,
for the standing order to find application. (own emphasis).
[96]
It can hardly be argued that, without substantive proof and without
having been found by a court of law to be implicated in
a murder, a
person may be accused of being a
murderer,
under the guise of
protected parliamentary speech. This is a very serious allegation
against any person including and especially
a person holding the
office of Deputy President of the country. It may well be as Mr
Malema claims, that Mr Ramaphosa may have
used his political
influence to place pressure on the police to act against the mine
workers, which may be capable of being regarded
as a legitimate
criticism against Mr Ramaphosa, but by going so far as to say that he
had planned and premeditated the murder of
the workers of Marikana
and that he is a murderer, is a very serious allegation which cannot
be categorised as free political
speech protected by the
Constitution.
[97]
In terms of section 58 (2), members of the National Assembly are not
liable to civil or criminal proceedings, arrest, imprisonment
or
damages for anything that they have said in, produced before or
submitted to the Assembly or any of its committees, or anything
revealed as a result of anything that they have said, produced or
submitted to the National Assembly or any of its committees.
[98]
In the
DA case
(supra) at para [56]
Madlanga J
said:
“
The text of the Constitution is plain. Sections 58 (1) and
71 (1) do not provide that both free speech and immunities contained
in para (b) of each of the two sections are subject to the Rules of
the two Houses. Only parliamentary free speech under ss 58 (1)
(a)
and 71 (1) (a) is subject to the Rules of the two Houses. On the
other hand, the immunities in ss 58 (1) (b) and 71 (1) (b)
are
absolute
. This appears to be crafted with care
and deliberateness. Yes, the privileges in ss 58 (1) (a) and 71 (1)
(a) and the immunities
in ss 58 (1) (b) and 71 (1) (b) are
interrelated. […] But – at the same time – the
immunities are distinct.”
(emphasis added)
[99]
In my view it is exactly for this reason that the immunities
that deal with the consequence of free speech, as contained
in
section 58 (1) (b),are a necessity for the standing order, which does
not impede or limit free speech, but sets out the circumstances
under
which such free speech should be exercised when a member who wishes
to bring any improper conduct on the part of another
member to the
attention of the House or impute improper motives, or cast personal
reflections on the integrity of other members
or verbally abuse them
in any other way, may do so.
[100]
A member, therefore, due to the provisions of section 58 (1) (b)
would have no recourse against another member who personally
insults,
imputes improper motives, casts personal reflections on his or her
integrity or verbally abuses him or her. That
is exactly what
the standing order seeks to manage and regulate. In my view
Miss Boroto exercised her discretion in a reasonable
and rational
manner when she concluded that the remarks made by Mr Malema were
unparliamentary. She was therefore entitled to request
Mr Malema to
withdraw the remarks which he refused to do.
[101]
Furthermore in terms of Rule 70, Miss Boroto was entitled to request
Mr Malema to leave the chamber, which he
once again refused to
do. He thereafter repeatedly undermined the authority of the
presiding officer and repeatedly refused to
obey her orders. He
further persisted in making the serious allegations against Mr
Ramaphosa. As a result of this, he made himself
guilty of grossly
disorderly conduct and the Chairperson was justified in ordering his
removal from the House in terms of the provisions
of Rule 73. As
found earlier, in my view, the automatic suspension as a consequence
of the forced removal of Mr Malema was unlawful
and unconstitutional
and falls to be set aside.
Costs
[102]
The application was mostly unsuccessful, except for the prayer that
Rule 73 (3), which permits the automatic suspension
of a member who
was forcibly removed from the Assembly, be declared unlawful and
unconstitutional. The Respondent submitted that
in the event of the
application being unsuccessful, the Applicants should be liable for
costs. It is trite that the making of a
costs order falls within the
exclusive discretion of the court. It has also been accepted as far
as constitutional litigation is
concerned that a more flexible
approach is followed, which may have as a consequence that costs
should not follow the result, as
would be in any other ordinary case.
The rationale for this Rule is that an award of costs might have a
chilling effect on litigants
who might wish to vindicate their
constitutional rights. If an application is, however, frivolous or
vexatious or in any other
way manifestly inappropriate, the court
may, notwithstanding the fact that the parties are involved in
constitutional litigation,
grant a costs order against the
unsuccessful applicant. See in this regard
Affordable
Medicines Trust and Others v Minister of Health and Others
at
para 139
[26]
and
Biowatch
Trust v Registrar, Genetic Resources, and Others
[27]
at paras 57-58.
[103]
In the present matter the Applicants have raised important
constitutional points regarding the right to freedom
of speech
in Parliament as well as the impact of the new Rules of Parliament on
such a right. These are important matters of national
importance not
only to members of Parliament, but also to ordinary citizens and the
electorate. Litigants should in future not
be dissuaded from doing so
by virtue of adverse costs orders being made against them. The
Applicants in this case however, should
be held liable for the wasted
costs occasioned by the postponements for their failure to comply
with the Rules of Court, more especially,
their failure to file a
Notice in terms of Rule 16A of the Uniform Rules of Court.
[104]
Order
In
the result, I make the following order:
In cases 14667/2015
and 17666/2015
1)
That the
application for an order declaring that Rule 73 of the Rules of the
National Assembly be declared unlawful, unconstitutional,
invalid and
of no force or effect, is dismissed.
2)
That Rule
73(3), to the extent that it has as a consequence the automatic
suspension of a member subsequent to his or her removal
from the
parliamentary chamber, is declared unlawful, unconstitutional
and invalid and of no force or effect.
In case no 17666/2015
only in respect of Mr Malema
3)
That the
application for the setting aside of the decision of the Chairperson
taken on 9 September 2015 to remove the First Applicant
from the
precincts of the National Assembly, is dismissed.
4)
That the
suspension in terms of Rule 73 (3) of the First Applicant pursuant to
his removal is set aside.
[5]
Costs
In
respect of both cases 14667/2015 and 17666/2015, no order as to costs
is made except that the costs as a result of the postponement
of the
matter occasioned by the Applicants’ failure to comply with the
Rules of court, be paid by the Applicants.
_______________________
HENNEY,
J
Judge
of the High Court
I
agree and it is so ordered.
_______________________
STEYN,
J
Judge
of the High Court
[1]
Economic Freedom Fighters and Others v Speaker of the National
Assembly and Others (21471/2014) [2014] ZAWCHC (23 December 2014).
[2]
See infra at para 82.
[3]
2016 (3) SA 487 (CC).
[4]
Ibid
para 45.
[5]
See infra at para 82.
[6]
MX1 page 512 – 563 record case 1766/2015
[7]
BM 3 record page 130.
[8]
BM16 at page 271, record.
[9]
BM17.
[10]
BM18.
[11]
BM20, 21, 22.
[12]
BM 10 page 149 of the record
[13]
Sec 12(13) reads as follows: “This section does not
affect the power of a person presiding at a meeting of a House
or a
committee, or a joint meeting of the Houses, to maintain order and
discipline in the meeting”.
[14]
BM3 page 328 record.
[15]
At page 603 of the record, Mrs C. Dudley remarks: “The ACDP
has committed to holding the President and his executive
accountable, but we are committed to doing so within the rules of
Parliament and the processes. We do object to being held to ransom
by one party. We do object to the attack on multi-party democracy
coming from one party in the opposition, which we stop all
the other
body from having any say or doing what we need to in terms of
holding the President and his Executive to account”.
[16]
Section 58 (1) provides:
“Cabinet members, Deputy Ministers and members of the National
Assembly-
(a) have freedom of speech in the Assembly and in its committees,
subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for-
(i) anything that they have said in, produced before or submitted to
the Assembly or any of its committees; or
(ii) anything revealed as a result of anything that they have said
in, produced before or submitted to the Assembly or any of
its
committees."
[17]
The provisions of section 71, are similar to section 58 which is
applicable to delegates of the National Council of Provinces
(NCOP)
[18]
Speaker of the National Assembly v De Lille and Another
1999 (4) SA
863
(SCA) para 16.
[19]
1998 (3) SA 430 (C).
[20]
BM3 record page 328, in terms of sub-rule 13 of rule 73.
[21]
2015 (2) SA 232
(CC) para 133.
[22]
Conduct constituting contempt is set out in section 13 of the PPI,
which includes various contraventions of the PPI and is also
applicable where a member wilfully fails or refuses to obey any
order or resolution of a House or Houses; commits an act which
in
terms of the standing rules constitute contempt of Parliament or
breach of Parliamentary privilege.
[23]
Hoexter refers to the Rt Hon The Lord Woolf, Jeffrey Jowell QC &
Andrew Le Sueur
De Smith’s Judicial Review
6ed (2007)
318 – 9.
[24]
2015 (4) SA 133 (WCC).
[25]
2016 JDR 0914 (SCA).
[26]
2006 (3) SA 247 (CC).
[27]
2009 (6) SA 232
(CC).