Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (21471/2014) [2018] ZAWCHC 4; [2018] 2 All SA 116 (WCC) (29 January 2018)

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[2018] ZAWCHC 4
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Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (21471/2014) [2018] ZAWCHC 4; [2018] 2 All SA 116 (WCC) (29 January 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
21471
/2014
In
the matter between:
THE
ECONOMIC FREEDOM FIGHTERS
First

Applicant
JULIUS
SELLO
MALEMA
Second

Applicant
FLOYD
SHIVAMBU
Third

Applicant
PAUL
RAMAKATSA
Fourth

Applicant
G
ODRICH
GARDEE
Fifth

Applicant
MBUYISEN
NDLOZI
Sixth

Applicant
LITCHFIELD
KHANYISILE TSHABALALA
Seventh

Applicant
JOHN
ANDILE
MNGXITAME
Eighth

Applicant
NTHAKO
MATIASE
Ninth

Applicant
HLENGIWE
OCTAVIA MAXON
Tenth

Applicant
ELSABE
NATASHA LOUW
Eleventh

Applicant
MAGDALENE
MOONSAMY
Twelfth

Applicant
NGWAJAMAKWETLE
RENIOLEO MASHABELA
Thirteenth
Applicant
ASANDA
MATSHOBENI
Fourteenth

Applicant
NOKULUNGA
PRIMROSE SONTI
Fifteenth

Applicant
MAKOTI
SIBONGILE KHAWULA
Sixteenth

Applicant
NTOMBOVUYO
MENTE-NGWENISO
Seventeenth

Applicant
PUMZA
NTOBONGWANA
Eighteenth

Applicant
KGOTSO
ZACHARIAH MORAPELA
Nineteenth

Applicant
DANIEL
JOSEPH
Twentieth

Applicant
MOSES
SIPHO
MBATHA
Twenty-First

Applicant
and
THE
SPEAKER OF THE NATIONAL ASSEMBLY
REPUBLIC OF SOUTH
AFRICA
First
Respondent
BALEKA MBETE
N.O.
Second
Respondent
BUAONG LAMIS MASHILE
N.O.
Third
Respondent
JACOB GEDLEYIHLEKISA
ZUMA N.O.
Fourth
Respondent
Coram:
Bozalek J et Dl
odlo
J et Mantame J
Date
of Hearing:
30
and 31 October 2017
Date
of Judgment:
JUDGMENT
DLODLO,
J
INTRODUCTION
[1]
This matter arose from the well-publicised chanting during the
appearance in Parliament by the fourth respondent (‘the

President of the Republic’) on 21 August 2014, that he must
‘
[p]ay
back the money’
.
The President appeared in Parliament in order to answer questions in
terms of his constitutional responsibility to account to
Parliament.
The questions he was to answer appeared in a Parliamentary Paper
annexed in the papers as ‘BM9’. The sequence
of events
leading to (and including the chanting) is best appreciated when one
has regard to both the unrevised Hansard for the
proceedings on 21
August 2014 and the two DVD’s of the proceedings of the day.
[2]
This is the return day of a two-pronged application brought by the
applicants on 14 December 2014. Part A was an application
for urgent
interim relief to interdict the Speaker of the National Assembly
(‘the Speaker’) or anyone acting under
her authority from
implementing a decision taken by the National Assembly (‘Parliament’)
on 27 November 2014 to impose
a sanction of suspension without
remuneration on the applicants. It is common cause that the relief in
Part A was sought pending
the outcome of the application in Part B.
My brother, Davis J, granted the urgent application in respect of
Part A in a judgment
dated 23 December 2014. What is before us is the
determination of the relief sought in Part B.
[3]
The first to third respondents delivered the record in terms of Rule
53 (1) (b) of the Uniform Rules of Court on 20 March 2015.
When no
steps were reportedly taken by the applicants to bring the matter to
finality despite invitations to do so, the first to
third respondents
delivered further answering affidavits on 23 December 2016 and 23
March 2017, respectively. Noticeably, no replying
affidavit has been
delivered by the applicants in response to the further affidavits
mentioned.
[4]
It is of importance that it be mentioned that the applicants seek
final relief in Part B, namely: (a) A declaratory order that
the
decision taken by the National Assembly on 27 November 2014 to adopt
the report of the Powers and Privileges Committee (‘the

Committee’) suspending the applicants without remuneration is
constitutionally invalid and unlawful and is of no force or
effect
(‘the first prayer’). (b) The proceedings in terms of
which the second to twenty first applicants were charged
and found
guilty (‘the disciplinary proceedings’) of misconduct are
reviewed and set aside (‘the second prayer’).
(c) The
report of the Committee is reviewed and set aside (‘the third
prayer’). (d) A declaratory order that the National
Assembly
has failed to carry out or fulfil its obligations in accordance with
the provisions of Section 55 (2) of the Constitution
of the Republic
of South Africa 108 of 1996 (‘the Constitution’) to
ensure that all executive organs of state in the
national sphere of
government are accountable to it, and to maintain oversight of the
exercise of National Executive authority,
in that it has failed to
ensure that the President of the Republic of South Africa (Mr JG
Zuma), has accounted in relation to the
steps that he is required to
take in order to comply with the findings in the report by the Public
Protector dated March 2014,
under the heading: ‘Secure in
comfort: Report on an investigation into allegations of impropriety
and unethical conduct relating
to the installation and implementation
of security measures by the Department of Public Works at and in
respect of the private
residence of President Zuma at Nkandla in the
Kwa-Zulu Natal province (‘the Public Protector’s Report’)
(‘the
fourth prayer’). (e) A declaratory order that the
first respondent has failed, in her capacity as the Speaker of the
National
Assembly to ensure that the National Assembly complies with
its obligations and exercises its powers in accordance with Section

55 (2) of the Constitution to ensure that the President (as head of
the National Executive), is held accountable to it in relation
to
giving effect to the findings in the Public Protector’s Report
(‘the fifth prayer’). (f) A declaratory order
that Ms
Mbete as Speaker of the National Assembly, forthwith (‘the
seventh prayer’).
[5]
In passing it must be mentioned that there are a number of other
prayers contained in Part B (set out
supra
) which relate to
the President as well as the Speaker. Some of the relief in Part B
falls within the exclusive jurisdiction of
the Constitutional Court
in terms of Section 167 (4) (e) of the Constitution. The latter
provision states that only the Constitutional
Court can decide
whether Parliament or the President have failed to fulfil a
constitutional obligation.
THE
FACTUAL BACKGROUND
[6]
It is no exaggeration to say that the proceedings of Parliament on 21
August 2014 descended into chaos due to the conduct of
the
applicants. The conduct of the applicants was considered by the
Speaker to constitute a deliberate contravention of the Rules
of
Parliament (‘the Rules’), disruptive, contemptuous of
Parliament and that it amounted to gross disorder. The behaviour
was
such that it was described by the Chief WHIP of the Official
Opposition Party (the Democratic Alliance) as ‘
unacceptable’
and ‘
unprecedented’
.
Mr Steenhuisen corroborating the evidence of the Deputy Chief Whip of
the Majority said that some members expressed disdain in
regard to
the behaviour of the affected members and at what happened in the
House and that their behaviour was unacceptable. He
went on and
stated that what had happened in the House on that day was a new
experience for members who had been in Parliament
before. According
to Steenhuisen this was unprecedented and that parliamentary
officials were ‘
in
confusion about what actually need(ed) to take place, probably
because this has not really happened in Parliament before’
.
He went on to explain that ‘
I
don’t think its anything we were prepared for’
.
As a result, the Speaker suspended the proceedings. The Speaker
thereafter referred the incident to the Committee in terms of
Rule
194 of the Rules, for investigation into whether the conduct of the
applicants constituted contempt in terms of the Powers,
Privileges
and Immunities of Parliament and Provincial Legislatures Act 4 of
2004 (‘the Powers, Privileges and Immunities
Act’).
[7]
In the founding papers, the applicants aver that the reason they were
ultimately disciplined for the events of 21 August 2014
is simply
that they were demanding that the National Assembly should play its
proper constitutional function of holding the National
Executive to
account. According to the applicants they are being victimised for
carrying out their lawful constitutional duties.
In this regard it is
significant to quote Mr Julius Sello Malema, the leader of the
Economic Freedom  Fighters (‘EFF’)
and the deponent
to the founding affidavit:
‘……
..the
charges against the applicants emanate from the demand of the EFF
that the National Assembly should play its proper constitutional

function of holding the National Executive to account. Parliament
should not be reduced to a mere a lapdog (sic) of the ruling
party. I
contend that the applicants are being victimised for carrying out
their lawful constitutional duties, and deny that members
of the EFF
have committed any misconduct. Specifically the EFF is being
victimised for making a legitimate demand in  calling
upon the
National Assembly to require the President to explain the steps that
he intends taking to carry out the recommendations
of the Public
Protector in the report aforementioned……….that
the proceedings of the Powers and Privileges
Committee, its report
and the decision of the National Assembly to adopt the report violate
the constitutionally protected rights
of the members of the EFF who
serve in Parliament  on its behalf. Furthermore, the decision is
a violation of the rights of
the voters and supporters of the EFF,
which are protected by Section 19 of the Constitution. The voters,
who have elected the EFF
to serve in Parliament, are entitled to be
represented by the EFF until the end of the term. They cannot be
deprived of such rights
and entitlements by the unlawful conduct of
the National Assembly.’
[8]
However, contrary to the above, for the first to third respondents,
the case raises important questions regarding the dignity
and decorum
of proceedings of the National Assembly. It is the manner in which
the applicants behaved  - and neither the questions
to the
President, nor his answers – that are at issue in this
application. As a result, this case hardly concerns the status
of the
Public Protector’s Report. Of course that issue has been
determined by the Constitutional Court and does not directly
arise in
this case.
CONTENTIONS
AND SUBMISSIONS
ON
APPLICANTS’ BEHALF
[9]
Dealing with the disciplinary proceedings against the applicants, Mr
Ntsebeza on behalf of the applicants, contended that the
full history
is now recorded in the Constitutional Court judgment. In his
contention, the genesis lies in improvements made to
the President’s
home after the latter’s election as President in 2009. He
referred rather extensively to the content
of the Public Protector’s
Report in the above regard. The applicants contended that the conduct
of the President did not
only violate his own responsibility as the
President but undermined the independence and effectiveness of the
Public Protector.
The National Assembly is said to have failed to
hold the President accountable in relation to the flagrant breaches
of the constitution.
In Mr Ntsebeza’s contention, the EFF’s
original position was fully vindicated by the findings of the
Constitutional
Court in the Nkandla judgment.  He specifically
referred to the fact that the Constitutional Court held that the
President’s
failure to comply with the Public Protector’s
remedial action constituted a violation of his obligations in terms
of Section
83 (b) of the Constitution, read with Sections 181 (3) and
182 (1) of the Constitution. Mr Ntsebeza enumerated various findings

made by the Constitutional Court against the President in the Nkandla
matter and contended that these constitute a background that
the
disciplinary action taken against the applicants must be viewed. In
his view, when the applicants demanded payment of the money
in
compliance with the Public Protector’s report, they were acting
in the discharge of their functions as members of the
National
Assembly. He referred this Court to
United Democratic Movement v
Speaker of the National Assembly and Others
2017 (8) BCLR 1061
(CC) where the Constitutional Court held of the members of the
National Assembly individually and collectively as follows:
‘
Members are required to
swear or affirm faithfulness to the Republic and obedience to the
Constitution and laws. Nowhere does the
supreme law provide for them
to swear allegiance to their political parties, important players
though they are in our constitutional
scheme. Meaning, in the event
of conflict between upholding constitutional values and party
loyalty, their irrevocable undertaking
to in effect serve the people
and do only what is in their best interests must prevail. This is so
not only because they were elected
through their parties to represent
the people, but also to enable the people to govern through them, in
terms of the Constitution.
[10]
Mr Ntsebeza maintained that when the members of the First Applicant
demanded the payment of the money by the President, not
only were
they were fulfilling a duty. In his submission, when the Speaker
refused to ensure compliance with the remedial action,
she was
violating her Oath of Office, and by extension the obligations of the
National Assembly. The following assertion by Mr
Ntsebeza must be
quoted:
‘……
the
disciplinary inquiry against the applicants did not meet the
requirement of reasonableness and fairness that are contained in
the
applicable legislation. But they have been challenged here in part
because their ultimate goal was to serve an unconstitutional
purpose:
the goal of disciplining the applicants was to suppress the
fulfilment of their constitutional obligations. This simply
could
never be a lawful and legitimate purpose for a disciplinary inquiry.
Members of the National Assembly should not be required
to act in
pursuit of party loyalty, at the expense of the Constitution’.
In
Mr Ntsebeza’s contention members can only be disciplined if the
conduct is not a reaction to a legitimate demand for constitutional

compliance. He maintained that what actually happened was that the
Speaker in pursuit of party loyalty was attempting to supress
the EFF
and its members from carrying out their obligations and, in turn,
insisting that the National Assembly must carry out its
obligations.
I do not necessarily agree with these submissions but it is necessary
to set them out in order to deal with them fully
in the discussion
that is to follow.
[11]
On behalf of the applicants it is contended that the Speaker was
wrong in referring allegations of gross disorder to the Powers
and
Privileges Committee only against members of the EFF because members
of other political parties were also party (participated)
to the
disorderliness that took place in the House. Importantly, the
complaint is made in the founding papers that the Committee
concerned
constitutes of 11 members, six of whom being members of the ANC, two
of the Democratic Alliance, one EFF member, one
IFP member and one
United Democratic Movement member. The complaint is that the
committee was dominated by members of the ANC pursuant
to its
majority status in Parliament. The contention is further that while
there is no obligation on the committee to sit or be
constituted
differently, there is a clear legislative requirement that it must
act reasonably and procedurally fair. The EFF contended
that it could
not reasonably expect to receive a fair hearing in front of the
political opponents who were ‘
clearly
partisan to the President’
.
Mr Ntsebeza was at pains in pointing out that the case of the EFF is
that in view of the fact that there is no legislative injunction
that
the committee must conduct the disciplinary inquiry itself, it was
within its power to ask a different body to conduct the
fact-finding
stage of the inquiry. Mr Ntsebeza in the above regard continued
contending as follows:
‘
That those facts would
subsequently be presented to the Committee for decision-making would
be unavoidable. But, that the requirement
of reasonableness and
procedural fairness would have been satisfied.’
[12]
Mr Ntsebeza argued that what transpired in Parliament was actually an
exercise of free speech which remains a bulwark against
tyranny. He
placed reliance on the
Democratic Alliance v Speaker of the
National Assembly and Others
2016 (3) SA 487
(CC) at paras 11 and
17 reading,
inter alia
:
‘
South Africa is a
constitutional democracy. Hard-won democracy that came at a huge cost
to many; a cost that included arrest, detention,
torture and –
above all – death at the hands of the apartheid regime. The
importance of our democracy, therefore, cannot
be overstated. It is
the duty of all – in particular the three arms of state –
jealously to safeguard that democracy.
Focussing on Parliament, the
pluralistic nature of our parliamentary system must be given true
meaning. It must not start and end
with the election to Parliament of
the various political parties. Each party and each member of
Parliament have a right to full
and meaningful participation in and
contribution to the parliamentary process and decision-making. By its
very nature, Parliament
is a deliberative body. Debate is key to the
performance of its functions. For deliberation to be meaningful, and
members effectively
to carry out those functions, it is necessary for
debate not to be stifled. Unless all enjoy the right to full and
meaningful contribution,
the very notion of constitutional democracy
is warped.
…
Parliament is also entrusted with
the onerous task of overseeing the Executive. Tyrannical rule is
usually at the hands of the Executive,
not least because it exercises
control over the police and army, two instruments often used to prop
up the tyrant through means
like arrest, detention, torture and even
execution. Even in a democracy, one cannot discount the temptation of
the improper use
of state organs to further the interests of some
within the Executive. Needless to say, for Parliament properly to
exercise its
oversight function over the Executive, it must operate
in an environment that guarantees members freedom from arrest,
detention,
prosecution or harassment of whatever nature. Absent this
freedom, Parliament may be cowed, with the result that oversight over

the Executive may be illusory’.
In
Mr Ntsebeza’s submission, Section 58 of the Constitution is
implicated in this matter because the applicants were merely

performing their constitutional duty and exercising their freedom of
speech in the House. In his contention the rules and the Act
under
which the applicants are charged are subservient to the Constitution.
Mr Ntsebeza emphasised that in interpreting the rules
and the Act,
effect must be given to the rights of the members of the Assembly to
freedom of expression. In Mr Ntsebeza’s
submission, the
decision to charge the EFF members was but a violation of freedom of
speech in that (in his view) the true issue
is that the EFF was
punished for speaking. ‘
It
complained about the matter of burning national importance that
continues to bedevil our constitutional democracy. It is quite

improper for the National Assembly to in essence charge the EFF for
misconduct, when in reality the misconduct flows from what
has been
said in Parliament’
– so argued Mr Ntsebeza.
[13]
In Mr Ntsebeza’s submission, there is simply no evidence that
the specified members improperly interfered or impeded
the exercise
of the authority of the Assembly. He continued and stated that when
members rise to speak on a point of order, it
is illogical to equate
that with impeding the business of the House. He cautioned, ‘
it
does not matter if there has or has not been prior recognition by the
Speaker. The fact is that a point of order is recognised
under the
Rules. Similarly, when members rise to speak, it is upon the Speaker
to give them due recognition to express their views
and to make a
ruling in relation to what has been said.’
Another point
made by Mr Ntsebeza is that the business of accounting to the House
is imperative and that the Speaker cannot simply
allow the President
to answer questions posed by members of the National Assembly in any
manner that he deems appropriate. In this
regard Mr Ntsebeza referred
to paragraph 85 of the
Nkandla
judgment where the following
appears:
‘
The National Assembly’s
attitude is that it was not required to act on or facilitate
compliance with the report since the
Public Protector cannot
prescribe to it what to do or what not to do. For this reason, so it
says, it took steps in terms of section
42(3) of the Constitution
after receipt of the report. Those steps were intended to ascertain
the correctness of the conclusion
reached and the remedial action
taken by the Public Protector, since more was required of the
National Assembly than merely rubber-stamp
her report.
Broadly-speaking, this is correct because ‘scrutinise’
means subject to scrutiny. And ‘scrutiny’
implies a
careful and thorough examination or a penetrating or searching
reflection. The Public Protector’s report relates
to executive
action or conduct that had to be subjected to scrutiny, so
understood.’
In
Mr Ntsebeza’s contention, the Committee acted procedurally
unfairly and unreasonably when it excluded from its deliberations
the
statement by Mr Malema.
DISCUSSION
OF THE MERITS OF THESE REVIEW PROCEEDINGS
[14]
As already shown in the introductory portion of this judgment and in
the submissions made on behalf of the applicants, it is
of importance
to focus intently on the complaints made by the applicants. As to the
first prayer the complaint is that the merits
of the Committee’s
Report were not properly debated in the National Assembly; that there
were sharp disputes of facts between
members of the ANC and members
of opposition parties who were in the Committee. Another complaint is
that copies of the charge
sheets; written submissions of the EFF; a
copy of the Hansard recording the deliberations of 21 August 2014,
video footage should
have been made available to the National
Assembly on 27 November 2014 in order for the National Assembly to
properly apply itself
to the Committee’s Report. However, the
reading of the answering papers paint a different picture. The Deputy
Speaker of
the National Aseembly, one Solomon Lechesa Tsenoli (he
presided over the proceedings of 27 November 2014 when the
Committee’s
Report was tabled, debated and adopted in the
National Assembly) denies the allegation that the merits of the
Report were not debated.
He states that the Committee’s Report
had appeared in the ‘Announcements, Tablings and Committee
Reports of Parliament’
on 11 November 2014 to enable members to
engage in debate when the opportunity arose. It is important to
mention that the Deputy
Speaker’s evidence in this regard is
not challenged at all. We gather from the answering papers that on 27
November 2014
various inputs were made by different political parties
engaging in debate. These included the Democratic Alliance, the NFP,
the
UDM, the VF Plus, Cope, the ACDP, the AIC and Agang. It remains
Mr Tsenoli’s unchallenged evidence that after the debate on
the
Committee’s Report, the third applicant moved to amend the
Report. However, the third applicant repeatedly failed to
cooperate
and comply with the Rules of the National Assembly. He specifically
would not adhere to the time allocated to him and
he created disorder
in the House and he was eventually disallowed from proceeding with
his motion. According to the evidence by
Mr Tsenoli, Mr Waters of the
DA also moved to amend the Report. The DA called for division of the
House and indeed the House divided
and the matter was put to a vote.
The result was that the proposed amendment was not passed. The motion
to adopt the Report was
put to a vote and that resulted in the
adoption of the Report.
[15]
It is accordingly incorrect to say that there was no debate on the
Committee’s Report. The answering papers reveal that
the matter
was discussed and debated for more than 5 hours. We gather that there
were no complaints on that date that certain information
which should
have been supplied was not supplied. The adoption of the Committee’s
Report was indeed by majority, in accordance
with Section 53 of the
Constitution. The latter section provides that all questions put
before the Assembly are decided by a majority
of the votes cast. That
there were disagreements between members of different parties is to
be expected in the business of Parliament.
It needs to be borne in
mind that the Constitutional Court stated in
Oriani-Ambrosini
v Sisulu, Speaker of the National Assembly
2012 (6) SA 588
(CC) para [37] that the purpose served by Section 53
is that it contemplates the making of a decision in relation to an
unresolved
question, naturally, because members may disagree on the
decision to be made.
[16]
As foreshadowed,
supra
the applicants allege that the disciplinary proceedings should be
nullified on the ground of non-compliance with the requirements
of
procedural fairness and unreasonableness. It is alleged that there is
no factual foundation for the charges against the applicants.
It has
been mentioned that the applicants alleged that the composition of
the Committee rendered the disciplinary proceedings unreasonable
and
procedurally unfair in that the Committee could have been
reconstituted to ensure political balance and fairness. In the
alternative
it was argued that the matter could have been chaired by
an impartial, outside person such as a retired judge. The failure to
take
the written representations into account constituted a material
irregularity that tainted the entire process. Another complaint
is
that certain witnesses were not called to give evidence.
REASONABLE
AND PROCEDURALLY FAIR HEARING
[17]
Section 12 (3) of the Powers, Privileges and Immunities Act requires
that before any disciplinary action is taken against a
member, the
Committee must enquire into the matter in accordance with a procedure
that is reasonable and procedurally fair. On
the other hand, Rule 138
entitles the Committee to determine its own procedure which must
comply with Section 12 (3). Rule 194
(2) (a) states that upon receipt
of a matter relating to contempt or misconduct by a member, the
Committee must deal with the matter
in accordance with the procedure
contained in the Schedule to the Rules. The Schedule to the Rules
sets out the procedure to be
followed in the investigation and
determination of allegation of misconduct and contempt of Parliament.
[18]
The decisions taken by the Committee regarding process were taken on
1 September 2014 and this appears in the minutes of that
date. See
Annexure ‘BLM3’ and Mashile further affidavit paras
11-17. According to Mashile’s further affidavit
at paras 21 –
21.2 despite the resolutions of 1 September 2014, procedural queries
arose throughout the proceedings of the
Committee, mainly regarding
the content and manner of bringing the preferred charges against the
applicants; the status of, and
approach to the written
representations; and what witnesses should be called. Understandably
often, opinion was divided across
party lines. The evidence shows
that when these issues arose, discussions would be held, and/or
opinion sought from the parliamentary
legal advisors. Mr Duminy, on
behalf of the respondents, is of course correct in submitting that
the above approach of dealing
with procedural issues was reasonable
and fair. A mention must be made that Section 3 (2) (a) of the
Promotion of Administrative
Justice Act 3 of 2000 (‘PAJA’)
recognises and reaffirms what had long been axiomatic in common law,
namely that a ‘
fair administrative procedure’
depends on the circumstances of each case. What procedural fairness
requires depends on the particular circumstances of each case.
THE
COMMITTEE ESTABLISHED IN TERMS OF
RULE
191 AND SECTION 12 (2) OF THE POWERS,
PRIVILEGES
AND IMMUNITIES ACT
[19]
The committee was established in terms of the relevant Rule and
Section as set out above. As contemplated in subsection 12
(1) read
with subsection (2), it is a standing committee mandated to enquire
into any act or matter declared in Section 13 to be
contempt of
Parliament and which is referred to it by the House. The Committee in
question was constituted in accordance with Rules
192 read with Rules
121 and 125. The latter Rule (Rule 125) provides that parties are
entitled to be represented in committees
in substantially the same
proportion as the proportion in which they are represented in the
Assembly. It is thus axiomatic that
in accordance with Section 46 of
the Constitution every Committee, unless otherwise specified, is
constituted according to the
constitutionally enshrined principle of
proportional representation. Of course decisions in the Committee are
made by majority
vote. In the instant matter the papers make it
apparent that the EFF participated in this process and it submitted
the name of
the third applicant as a member of the Committee with the
seventh applicant as the alternate member.
[20]
According to Mashile’s further affidavit at paragraph 8
thereof, because the third applicant was one of the members charged

with misconduct, as was the alternate member (the seventh applicant),
the EFF was requested to nominate someone who was not one
of those
who had been charged to serve on the Committee for purposes of the
proceedings. Indeed the EFF nominated Mr Matlhoko whom,
I am told,
was later replaced by one Mr D L Twala. The latter had been observing
the proceedings before replacing Mr Matlhoko.
The aforegoing has not
been disputed by the applicants. In accordance with the provision of
Rule 194 (2), the Committee must elect
a chairperson. It may elect an
acting chairperson when the chairperson is not available. The
answering papers reveal that the chairperson
of the Committee at the
time of the events relating to the matter at hand was elected in
accordance with the latter Rule.
[21]
It is provided by Rule 12 (3) of the Powers, Privileges and
Immunities Act that the standing committee must enquire into the

matter and table a report on its findings and recommendations in the
House. Needless to mention that these functions are delegated
(as it
were) to the Committee by the statute. There is clearly no room for a
further delegation of these powers to yet another
body (as suggested
by the applicants). Accordingly, the Committee is by law required to
sit as the disciplinary Committee itself.
I am of the view that if
the Committee had the power to delegate its functions, this would
have been further stated in Rule 138
of the Rules of the National
Assembly dealing with the General Powers of the Committees. The point
is that there is no such provision.
Importantly, Part 7 of the Rules
of the National Assembly dealing particularly with Powers and
Privileges Committee does not contain
any provision permitting
delegation of these functions to any other Committee, subcommittee or
some other body.
[22]
In any event (as gathered from the answering papers) at no stage did
anybody object to the chairperson (Mr Mashile) presiding
over the
disciplinary proceedings or even suggest that the Committee should
obtain the services of someone from outside Parliament
to preside. I
am told that the issue never arose at the meeting of 1 September 2014
where (reportedly) the procedural aspects of
the proceedings were
discussed. This is clearly set out in Mashile’s first answering
affidavit and it has not been denied
by the applicants. I am told
that the meeting of 1 September 2014 was attended by the third and
the seventh applicants as well
as Mr Madisha of COPE (who came to
observe).
[23]
Before concluding on this aspect, it is perhaps of some importance
that one mentions the following happening. Before the commencement
of
the disciplinary proceedings, the first and second applicants brought
an application in this court under case number 17269/2014
for an
interdict restraining the Committee from conducting the disciplinary
proceedings. In that particular case the present second
applicant
made allegations similar to the ones made in the present application
concerning the composition of the Committee. Even
in the interdict
application, the present second applicant claimed that the
composition of Committee was a basis for perceiving
bias against the
members of the first applicant. The interdict applicant was dismissed
by this Court. I can perceive no basis for
the claim that the
composition of the Committee is biased, unfair or unreasonable. I
remain unpersuaded in this regard. The fact
is that Parliament works
with Committees. It cannot be that each time the Committee is given
work to do, it passes such responsibility
to some other outside body.
That would be illegal and untenable.
[24]
In my view, it is completely unnecessary to consider individual
charges preferred against applicants either individually or

collectively. It suffices to mention in passing that the ANC members
who rose to address the House were recognised by the Speaker.
The
allegations of inconsistency and bias appear to be unfounded. As to
the second charge the applicants allege that no reasonable
basis
existed to find them guilty because Rule 51 imposes no obligation on
members and that it is only Rule 53 (1) that does impose
an
obligation. They claim that the Hansard shows that no member was
ordered to withdraw from the chambers or was suspended or named.
Rule
51 (1) provides that ‘
A
member ordered to withdraw from the Chamber or suspended or named,
shall, subject to subrule 2, forthwith withdraw from the precincts
of
Parliament’.
The latter Rule therefore contemplates a withdrawal which is ordered
in terms of Rule 51. The undisputed evidence of the Sergeant-at-Arms

(Ms Regina Mohloni), was that the Speaker requested her assistance in
removing the applicants from the chamber – she approached
the
second and the third applicants requesting them to leave the Chamber
and they refused. That much can also be seen and heard
when viewing
the DVD recordings.
[25]
The applicants claim with regard to the third charge that it is
unfounded in that Mr Holomisa did not give evidence at the

disciplinary enquiry. The fact is that the Speaker recognised Mr
Holomisa to address the House on numerous occasions, but, on all

those occasions, the latter was interrupted by the applicants. The
Hansard has it that at one stage Mr Holomisa exclaimed ‘
Haibo’
as a result of the interruptions. There is more than enough evidence
from the recordings that Mr Holomisa was prevented from asking
a
question. It is not speculation that other members of Parliament
might have wished to ask the President further questions. Annexure

‘
BM9’,
the Question Paper for the day, indicates that there were 6 questions
set down for reply by the President. Chaos developed during
the third
question and the proceedings of Parliament were suspended for the
remainder of the day. In fact, according to the evidence
of Mr Xaso,
the business of the day was suspended due to grave disorder. The
applicants deny the fourth charge and they allege
that ANC members
are also guilty of the same offence but were not charged with any
misconduct. The court was accorded an opportunity
to view the DVD
recordings of the events in Parliament on the day in question. The
DVD recordings shows the applicants continuing
to shout and disrupt
the proceedings even as the Speaker attempted to suspend the
proceedings. It is not specified by the applicants
which members of
the ANC ‘
are
also guilty of the same offence’
.
[26]
In terms of the Guide to the Rules, Chapter 11, paragraph 55 thereof,
a member raising a point of order ‘
must direct attention to
the point complained of, and submit it to the decision of the Chair.
It is for the Chair to decide whether
and to what extent a point of
order may be discussed, and when the Chair is prepared to rule, no
further discussion will be allowed’
. In the instant matter
though, the applicants repeatedly refused to accept the rulings of
the Speaker on their point of order,
wanting more discussion and
claiming they had further points of order. However, these were not
points of order. It was nightmare
for the Speaker to steer the ship
forward. As to the 6
th
charge, the applicants deny the
charge on the basis that they only started chanting and banging
tables after the House had been
adjourned. The applicants also allege
that members of the ANC were rowdy but they were not charged.
However, the evidence shows
that the chanting and banging of tables
was not the only disturbance that day. According to the Speaker the
chanting (but not the
shouting) occurred after the sitting was
suspended. The applicants clearly disrupted the proceedings and they
behaved in such a
gravely disorderly manner that the proceedings were
suspended. In the Speaker’s own words ‘
the suspension
of the Assembly was due to the unruly behaviour of the EFF members,
nothing else.’
Notably, the seventh charge was against all
the applicants for remaining in the Chamber after the sitting had
been temporarily
suspended so that they could leave or be removed
from the Chamber in order for the House to continue with the business
of the day.
It is so that the applicants contend that it was not only
members of the EFF that did not leave the Chamber, but that there
were
also members of the public and members of the ANC. The fact of
the matter though, is that the applicants refused to leave the
chamber
when they were asked to do so by the Sergeant-at-Arms and by
the Speaker. This is indeed more evident when the DVD recording is

viewed. As far as it is alleged that members of the public remained
in the House, one must merely point out that the Rules of Parliament

apply to members of Parliament and not to the public. The members of
the public are merely spectators in Parliament. Thus, the
alleged
members of the public could not be charged on similar terms as the
EFF members. I have come across no evidence that members
of the ANC
refused to vacate the Chamber when asked to do so.
THE
WRITTEN REPRESENTATIONS
[27]
Item 4 of the Schedule to the Rules provides as follows:
‘
4. Explanation by member. If
the member wishes to give an explanation after receiving the notice,
he or she may do so either verbally
or in writing. Such explanation
may also be presented at the hearing.’
The
Chairperson of the Committee explained that the notices to attend the
hearing notified the charged members in terms of Item
4 of the
Schedule that if they wished to give an explanation after receiving
the notices they could do so either verbally or in
writing. They
could present such oral explanation at the hearing. If, however, they
opted for a written explanation, they should
submit the explanation
to the Chairperson before the hearing for the Committee’s
consideration. We are told that despite
that notification, there was
no prior submission of a written statement from the applicants. And
immediately after reading the
written statement, the second applicant
announced that the applicants would not be participating in the
disciplinary proceedings.
[28]
Mashile testifies in the further affidavit at paragraphs 38 to 39
that the legal advice obtained from the Parliamentary legal
advisor
was that the written representations should be accommodated in terms
of item 4 of the Schedule to the Rules which permits
a member to make
a written or verbal explanation after receiving notice of a charge.
The legal advice was (reportedly) further
that the written
representations did not constitute evidence given under oath which
could be questioned by members of the Committee.
Given the fact that
after the second applicant read the written representations, the
applicants had abandoned the proceedings and
expressed that they
would not be participating, the advice was reasonable.
[29]
The issues raised in the written statement were taken into account by
the Committee. Importantly, (a) The legal advice obtained
by the
Committee was that the High Court had already pronounced on the
legality of the proceedings in the urgent application, and
had
pronounced that the disciplinary proceedings were in  terms of
the Act, and were in terms of the law. (b) Regarding the
alleged bias
by ANC Committee members and because of certain statements alleged to
have been made by the ANC General Secretary,
it was advised that in
terms of the case law, one must look at what happened in the hearing
rather than prejudge it. (c) Regarding
the composition of the
Committee, the legal advice obtained was that the Committee was
constituted in accordance with the Rules
of the National Assembly and
that a challenge to the composition should challenge the Rules. This
issue was aligned to the allegation
that the Speaker had considerable
power over the majority of members of the Committee because of her
position as ANC Chairperson.
(d) The issue of charges was discussed
and the legal advice was solicited. It was explained that the task of
the Committee was
to decide on whether the applicants were guilty or
not. In those circumstances, it was considered fair to leave the task
of formulating
the charges to the initiator, so as to avoid
perceptions of bias, political interference and procedural
unfairness. See Mashile
further affidavit. (e) In the latter’s
further affidavit at paragraph 43 it is pertinently made clear that
the applicants’
version of what happened on 21 August 2014 and
the evidence to be considered was indeed considered by the Committee
when considering
other witnesses’ evidence. That was in
accordance with the resolution of the Committee to do so (this
assertion was not disputed
in reply). (f) The fact that the Speaker
had invited the applicants to justify why they should not be
suspended was certainly in
accordance with the item 10 and 11 of the
Schedule and was indeed within the powers of the Speaker. (g)
According to the undisputed
evidence by Mashile, the view that the
Speaker should be called as a witness was debated by the Committee
and after deliberations
the Committee resolved not to call the
Speaker. The appropriate sanctions to be awarded were fully discussed
by the Committee.
Lastly, according to undisputed evidence by
Mashile, the Committee was unanimous in rejecting the first two
recommendations made
in the written representations that the entire
process be stopped and that the Committee should table a report
recording a decision
to withdraw charges against the affected
members. We are told the Committee held the view that, having
received a reference from
the Speaker, it was obliged to enquire into
the matter and report its findings and recommendations to the
National Assembly. In
this regard the Committee was correct.
Similarly, the third recommendation contained in applicants’
written representations,
is patently beyond the powers of the
Committee in the context of a referral under Section 12 of the Act.
The respondents, therefore
correctly denied that the issues raised in
the written representations were not taken into account by the
Committee.
[30]
The applicants allege that the President, the Speaker and Mr Holomisa
should have been called as vital witnesses. Perhaps,
one only needs
to point out that the applicants give no reasons why these individual
officials were necessary witnesses. In this
regard the applicants
have failed to make out a case. They state that the President should
have been called as the ‘
principal complainant’
.
Obviously, the applicants are mistaken in this regard and hardly have
basis for such an assertion. It is trite that the complainant
was in
fact the Speaker in terms of her powers under Rule 194. Importantly,
the view that the Speaker should have been called as
a witness was
debated and after deliberations on 14 October 2014 the Committee
resolved not to call the Speaker. Clearly, in the
light of all the
witness evidence before the Committee, the Committee did not consider
the Speaker a necessary witness. The same
applied to Mr Holomisa. It
is alleged by the applicants that the Committee did not consider the
evidence before it. In response
to this, this Court can do no better
than merely referring to the undisputed evidence tendered by Mashile.
Mashile stated,
inter alia
, the following: ‘
On 21
October 2014 after hearing the evidence of the last witness, the
Committee agreed to reconvene on 28 October 2014 for the
initiator to
deal with the evidence. On 28 October 2014 the initiator submitted
his “principal Submissions in Relation to
Allegations of
contempt of Parliament.” It ran into 172 pages.…..The
initiator went through the entire set of submissions
before the
Committee. There were no queries regarding the initiator’s
submissions…….The deliberations of the
Committee on the
evidence are reflected at pages 15 to 40 of the Committee’s
Report. I emphasised to the Committee its duty
to consider all the
evidence available before it and to recommend findings on a balance
of probabilities. The votes of the various
Committee members on each
charge levelled against each affected member are reflected in the
Committee’s Report…….The
Committee deliberated
and voted on each charge against each member separately’
.
It suffices to state that it is clear (when regard is had to the
Committee’s Report) that the Committee members applied

themselves to the evidence led at the disciplinary proceedings.
REVIEW
OF THE COMMITTEE’S REPORT AND
SECTION
55 (2) OF THE CONSTITUTION
[31]
It is of significant importance to bear in mind that the Committee’s
Report was compiled pursuant to Section 12 (3) of
the Powers,
Privileges and Immunities Act and Rules 194 (2) (b) and (c). These
provide as follows:
‘
(b) The Committee must table
a report in the Assembly on its findings and recommendations in
respect of any alleged contempt of
Parliament, as defined in section
13 of the Act, or misconduct.
(c) If it is found that a member is
guilty of contempt or misconduct, the Committee must recommend an
appropriate penalty from those
contained in section 12 (5) of the
Act’.
A
point must be made that the Committee’s Report is not at all an
administrative action as defined in PAJA. The Report has
no legal
effect, whether internal or external. It is and remains preparatory
to a decision by the House. It only has an effect
if it is adopted by
the National Assembly. It is pertinently clear from Section 12 (1) of
the Act under discussion that it is the
House itself that takes
disciplinary action against a member and not the Committee. In short,
because the Committee’s Report
is not in law susceptible to
review under PAJA, there is obviously no merit to prayer 3 of Part B
in these proceedings.
[32]
Section 55 (2) of the Constitution provides in express terms:
‘
The National Assembly must
provide for mechanisms-
(a) to ensure that all executive
organs of state in the national sphere of government are accountable
to it; and
(b) to maintain oversight of-
(i) the exercise of national
executive authority, including the implementation of legislation; and
(ii) any organ of state.’
Clearly,
the duty placed in Section 55 (2) is upon the National Assembly and
not the Speaker. The Rules of the National Assembly
are ordinarily
the mechanisms envisaged by Section 55 (2). In the latter regard See
Mazibuko NNO v Sisulu NNO
2013 (6) SA 249
(CC) para [148]
where the Constitutional Court stated it categorically as follows:
‘
[148] Central to the
applicant’s contention that the rules are inconsistent with the
Constitution is a simple proposition
that they fail to provide for a
deadlock-breaking mechanism. The error in the edifice which the
applicant sought to construct is
in its foundation. The premise from
which she proceeds is unsound. Section 102 (2) of the Constitution
does not require the assembly
specifically to make rules regulating
the passing of a motion of no confidence in the President. It merely
confers the power to
pass such motion on the assembly. The process to
be followed by the assembly in exercising that power is left to the
assembly’s
discretion. This is in line with the general power
in s 57 (1). Exercising this power the assembly made rules regulating
the scheduling
of motions, including motions of no confidence in the
President. As stated earlier, these rules prescribe the process
followed
when motions are introduced in the assembly.’
Similarly
in
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006
(6) SA 416
(CC) para [123], the Constitutional Court made the
following observation of importance:
[123]
It
is apparent that the Constitution contemplates that Parliament and
the provincial legislatures would have considerable discretion
to
determine how best to fulfil their duty to facilitate public
involvement. Save in relation to the specific duty to allow the

public and the media to attend the sittings of the committees, the
Constitution has deliberately refrained from prescribing to

Parliament and the provincial legislatures what method of public
participation should be followed in a given case. In addition,
it
empowers Parliament and the provincial legislatures to ‘determine
and control [their] internal arrangements, proceedings
and
procedures’ and to make their own rules and orders concerning
their business.
I
fully associate myself with above observations and statement of law
by the Constitutional Court. The truth is that the applicants
have
not made out any case to support the alleged failure by Parliament to
comply with Section 55 (2) of the Constitution.
[33]
In any event, as pointed out in the introductory portion of this
judgment in terms of Section 167 (4) (e) of the Constitution
only the
Constitutional Court may decide that Parliament has failed to fulfil
a constitutional obligation. This Court has no power
to grant the
fourth and the fifth prayers sought by the applicants. I mention that
in advancing their case in terms of Section
55 (2) of the
Constitution, the principal submission of the applicants is that the
Speaker should have insisted on more meaningful
answers from the
President on 21 August 2014. I demonstrate hereunder that this
submission is totally unsustainable.
MEANINGFUL
ANSWERS FROM THE PRESIDENT
[34]
The Speaker is not at all constitutionally obliged to ensure that
answers given by the President are ‘
meaningful’
.
In this regard the Speaker has absolutely no power to determine how
questions put to the President are to be answered. As envisaged
by
Section 55 (2) of the Constitution, the Rules provide for the
President and the rest of the executive to answer questions from

Parliament. It is Rule III which provides for the process of putting
questions to the President. Neither Parliament nor Speaker
has power
to determine how questions are to be answered. This is made perfectly
clear from Chapter 13 of the Guide. This Chapter
provides as follows:
“
8. REPLIES TO QUESTIONS
Members of the Executive have
discretion as to the answers they provide to a questions. When a
member complained that a Minister
had not answered his question, the
Deputy Speaker responded by reminding members that –
‘
the Chair regulates the
proceedings in the House, (but) it is not possible for the Chair to
dictate to Ministers how they should
reply to questions. If members
are dissatisfied, there are political processes available to them be
critical of the manner in which
Ministers deal with questions.”
[35]
Members of the Executive therefore have discretion as to the answers
they provide. It is not possible for the Speaker to dictate
how
members of the Executive should reply to questions put to them. It is
important to bear in mind that the Constitutional Court
has stated
that Parliament’s power to make its own arrangements,
proceedings and procedures in terms of Section 57 (1) of
the
Constitution is limited to the regulation of process and form as
opposed to the content and substance. See
Oriani – Ambrosini
v Sisulu, Speaker of the National Assembly
supra
para [61]
where the following is stated:
‘
[61]
The words ‘arrangements , proceedings and procedures’
indicate that the Assembly’s power to make rules is
limited to
the regulation of process and form as opposed to content and
substance’.
The
latter principle is undeniably equally applicable in relation to
Section 55 (2) of the Constitution.
ORDER
IN THE HOUSE
[36]
It must be noted that in answer to the applicants’ case based
on Section 55 (2) of the Constitution, the first respondent
places
emphasis on order that must be maintained during proceedings in the
National Assembly. She is not wrong. That remains her
primary
obligation. The Rules and the Guide provide and explain the framework
within which debates take place in an orderly and
decorous fashion.
In the present instance Chapter 5 (‘Order in Public Meetings
and Rules of Debate’) and 10 (‘Questions’)
of the
Rules and Chapters 2 (‘Presiding Officers and Other
Office-bearers’) 11 (‘Rules of Debate and Maintenance
of
Order’) and 13 (‘Questions to the Executive’) of
the Guide are pertinent. These have usefully been made available
to
the Court as Annexures ‘BM1 to BM5’ in the papers.
[37]
It is common cause that order is necessary in the conduct of debates.
Debates can sometimes be robust. Order ensures that all
members
participating in the debates have fair opportunities to participate.
Chapter 11 of the Rules (which contains the rules
of the debate and
Maintenance of Order), states that
‘
[t]he
Rules relating to order and debate are aimed not at limiting freedom
of speech, and guiding debates in the context of that
freedom so as
to allow reasoned and open consideration of controversial issues. The
rules also seek to promote the responsible
exercise of the privilege
of freedom of speech. This privilege, regarded as essential to
parliaments across the world entitles
a member to strongly express
sentiments and opinions that may be deeply offensive to other
members, and indeed detrimental to groups
and individuals. The
procedures imposed by the Rules are designed to allow this to be done
in an orderly fashion.’
It
is recorded in Chapter 2 and 11 of the National Assembly Guide to
Procedure, 2004 (the Guide) that one of the Speaker’s
vital
functions is to Maintain Order in the House. One needs to emphasise
that even when debate is robust, members should always
act with
dignity and decorum and in an orderly manner. The truth is that if
they do not, it is one of the important tasks of the
Speaker to
enforce order in order to ensure that the House is at all times able
to function in terms of its constitutional mandate.
[38]
It is pertinently stated in Chapter 13 of the Guide that if members
are dissatisfied with a reply there are processes available
to them
to obtain further information or clarification. Such processes
include putting supplementary questions or submitting further
written
questions. I understand, in this matter indeed members did put
supplementary questions. It is no solution at all to descend
into
chaos as the applicants did this case. Perhaps it may be necessary
for completeness sake to set out even in this judgment
the procedure
regarding supplementary questions. The procedure in that regard is as
follows: (a) According to practice, at the
start of every Question
Session members are reminded to press the ‘talk’ button
at their desks if they wish to ask
a supplementary question. I am
told this was done in this case. (b) In terms of Rule 113 (4) and (6)
four supplementary questions,
arising from the reply to a question
are taken for one minute per question. Rule 113 (5) states that the
member in whose name the
question stands has the first opportunity to
ask a supplementary question. (c) The names of the members who have
pushed their buttons
to indicate their wish to put supplementary
questions, appear on a computer screen at the Presiding Officer’s
(the Speaker)
desk. The Presiding Officer decides who is called upon
to pose the remaining three supplementary questions. The Presiding
Officer
considers the list of names of members who indicated that
they wish to ask a supplementary question. The Speaker has stated
that,
for the sake of fairness, only members whose names appear on
the list are recognised. I mention in passing that it would appear

that one feature characterising the proceedings of 21 August 2014 in
the National Parliament was the use and abuse of points of
order by
the applicants. That, perhaps, necessitates a discussion specifically
on points of order.
POINTS
OF ORDER
[39]
The Guide annexed in the papers as Annexure ‘BM4’
states that points of order must be approached with care,
because
they restrict a member’s right not to be interrupted. The
exchanges about points of order being abused in the record
of the
proceedings of 21 August 2014 perfectly illustrate this point. Rules
47 provides that no member shall interrupt another
member whilst
speaking, except to call attention to a point of order or a question
of privilege.
[40]
It is the Guide that regulates the use of a point of order. One must
look at the following extracts from Chapter 11:
‘
3 POINTS OF ORDER
Raising a point of order: A point
of order may be raised when a member is of the opinion that a Rule or
accepted parliamentary practice
is being transgressed. The member may
bring this transgression to the attention of the presiding officer by
taking a ‘point
of order’.
…
The member must direct attention to
the point complained of, and submit it to the decision of the Chair.
It is for the Chair to
decide whether and to what extent a point of
order may be discussed, and when the Chair is prepared to rule, no
further discussion
will be allowed.
Must relate to a point of
procedure or order
:
a valid point of order restricts a member’s right not to be
interrupted. Accordingly, such an interruption is only allowed
if it
calls attention to a point of order or a point of privilege. In other
words, it must relate to the Rules or to parliamentary
practice.
One of the functions of the Chair
is to protect rights of members. Therefore, the Chair will not allow
members to raise what are
clearly not valid points of order. For
example, points of order should not be used to respond to matters
raised by the member speaking
or to dispute facts.’
It
is part of the Speaker’s powers and duties in maintaining order
during debates under Rule 51 that she or he may order members
to
withdraw if they are considered to be deliberately contravening the
Rules, being in contempt, disregarding the Speaker’s
authority,
or behaving in a grossly disorderly way.
[41]
On 21 August 2014 the Speaker formed the view that the behaviour of
the applicants was in deliberate contravention of the Rules,
in
contempt, was disregarding the Speaker’s authority and was
grossly disorderly. Having read the Hansard and having viewed
the DVD
recordings for that day, I accept that the Speaker’s view in
this regard was correct. The Speaker furthermore perceived
that the
applicants would not withdraw if she ordered them to do so and that
they were intent upon disrupting the business of the
day. In the
circumstances, she correctly deemed it necessary to call on the
Sergeant-at-Arms for assistance. Mr Duminy correctly
submitted that
the Speaker must be given wide latitude in the exercise of her
duties. He referred this Court to
Lekota and Another v Speaker,
National Assembly and Another
2015 (4) SA 133
(WCC) where the
Court held that –
‘
(T)he task of controlling
debates in Parliament requires particular skills and is best dealt
with by the presiding officers who
are appointed for this purpose ….A
court should be loath to encroach on their territory and only do so
on the strength of
compelling evidence of a constitutional
transgression.’
It
is so that the applicants alleged that the Speaker invited members of
the South African Police Services to eject members of the
EFF from
the House and contended that this was unconstitutional. The Speaker,
however, denies inviting police to eject members
of the EFF or
calling ‘
amaphoyisa’
.
The denial buried the assertion of the applicants.
THE
SPEAKER NOT SUITABLE AND THE
NATIONAL
ASSEMBLY MUST REMOVE HER
[42]
The applicants seek a declaratory order that Ms Baleka Mbete is not
suitable to hold the position of Speaker of the National
Assembly.
The basis for the latter relief is the applicants’ complaint
that she is a senior office-bearer of the ruling party.
It is
submitted that it is ‘
legally untenable’
for her
to hold the position of Speaker for that reason. It is also alleged
that in failing to hold the President to account to
Parliament and in
her handling of the National Assembly’s session of 21 August
2014, Ms Mbete exhibited bias along party-political
lines. Even
though this prayer was conceded on behalf of the applicants to be
incompetent and was no longer insisted on, it will
suffice to state
that in terms of Section 52 (1) of the Constitution the Speaker is
elected by the National Assembly from amongst
its members. The only
constitutional requirement are that the Speaker must be a member of
the National Assembly and be elected
in accordance with the
prescribed procedure. See
Section 55 (2) and (3)
of the
Constitution. In any event this issue was put to rest by this Court
in
Tlouamma and Others v Speaker of the National Assembly and
Others
2016 (1) SA 534
(WCC) where the following was held:
‘
The Constitution is the
ultimate source for all legal authority in the Republic. Notably the
Constitution does not prescribe that
a person be fit and proper in
order to be a member of the National Assembly. Had the Constitution
sought to impose further requirements,
it would have done so
explicitly. Any declaration to the effect that the Speaker is not fit
and proper would automatically create
a fixed requirement for
continuation of an incumbent holding the office of Speaker. The
practical effect of the relief sought in
para 4.5 of the notice of
motion will be the removal of the Speaker from office. The court
cannot of its own accord create and
impose such a condition, nor can
the court usurp the functions of the National Assembly in the removal
of the Speaker by the introduction
of new requirements. The
Constitution provides for the office of the Speaker, for the election
to office of the Speaker, including
eligibility for election, and for
removal of the Speaker. In conclusion, s 52 of the Constitution does
not provide expressly or
by necessary implication that a candidate
must be fit and proper to be eligible to be elected Speaker by the
National Assembly,
or, once elected, to remain as Speaker.
Consequently, being a fit and proper person is not a constitutional
condition precedent
to becoming, or holding office as, Speaker.
Absent such prerequisite in law, the question of the Speaker’s
fitness and propriety
does not present a dispute capable of
resolution through the application of the law. It therefore follows
that the issue of the
fitness and propriety of the Speaker is not
justiciable.’
The
Court in the above matter also talked to the assertion regarding her
alleged partisanship and said the following:
‘
there is no constitutional
or statutory impediment to the Speaker occupying any leadership
position within her political party,
or participating in the
activities of the political party. The Speaker is entitled to remain
as an office bearer of a political
party, participate in its
activities and campaign for political rights. Affiliation to a
political party cannot in itself point
to a lack of objectivity and
impartiality. The Speaker’s membership of the NEC does not
render her incapable or biased in
performing her duties as
Speaker…Consequently, there is no legal basis to find that the
Speaker cannot continue to hold
the position of Chairperson of the
National Executive Committee of the ANC, as well as that of Speaker.’
As
to the Speaker it suffices to state that the power to remove her
vested in the National Assembly. Section 52 (4) of the Constitution

provides for the National Assembly to remove the Speaker or Deputy
Speaker from office by resolution and only by a majority of
the
members of the Assembly. It is not an issue that concerns this Court.
In accordance with the principle of separation of powers,
it would
not be appropriate or competent for the Court to direct the National
Assembly to remove the Speaker. In
South African Association of
Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC)
the Constitutional Court held,
inter alia
:
‘
[25] The separation of the
Judiciary from the other branches of government is an important
aspect of the separation of powers required
by the Constitution and
is essential to the role of the courts under the Constitution.
Parliament and the provincial legislatures
make the laws but do not
implement them. The national and provincial executives prepare and
initiate laws to be placed before the
legislatures, implement the
laws thus made, but have no law-making power other than that vested
in them by the legislatures. Although
Parliament has a wide power to
delegate legislative authority to the Executive, there are limits to
that power. Under our Constitution
it is the duty of the courts to
ensure that the limits to the exercise of public power are not
transgressed. Crucial to the discharge
of this duty is that the
courts be and be seen to be independent.
[26] The separation required by the
Constitution between the Legislature and Executive, on the one hand,
and the courts, on the
other, must be upheld, otherwise the role of
the courts as an independent arbiter of issues involving the division
of powers between
the various spheres of government, and the legality
of legislative and executive action measured against the Bill of
Rights and
other provisions of the Constitution, will be undermined.
The Constitution recognises this and imposes a positive obligation on

the State to ensure that this is done. It provides that courts are
independent and subject only to the Constitution and the law
which
they must apply impartially without fear, favour or prejudice. No
organ of State or other person may interfere with the functioning
of
the courts and all organs of State, through legislative and other
measures, must assist and protect the courts to ensure their

independence, impartiality, dignity, accessibility and
effectiveness.’
Courts
are indeed duty-bound to respect and uphold the separation of powers,
a doctrine constituting an important pillar on which
our Constitution
stands. In conclusion, one must point out that this remains an
opposed motion for final relief and as such the
approach set out in
Plascon-Evans
Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E – 635D-G applies. It is surprising
that the applicants disregard the facts set out in the answering
affidavits
contrary to the correct approach in opposed motions.
Stated categorically, given that a final order is sought by the
applicants
on motion, on facts as alleged by the respondents
considered together with those facts averred in the applicants’
affidavits
that have been admitted by the respondents, no such order
sought is justified. See
Plascon-Evans
Ltd v Van Riebeeck Paints (Pty) Ltd
supra
.
[43]
When counsel for the applicants was addressing the Court in reply, my
brother presiding, Bozalek J raised with him concerns
regarding the
sanctions imposed on the applicants. The crux of Bozalek J’s
concerns was essentially whether the suspension
sanctions imposed
were in accordance with section 12 (9) of the Powers, Privileges and
Immunities Act. On 27 November 2017 I received
a document styled
supplementary heads of argument from the applicants addressing the
very issue raised by my brother, Bozalek J.
The first contention
advanced on the applicants’ behalf is that there are
jurisdictional facts for the imposition of suspension
without pay.
These are that (a) the gravity of the charge by reference to its
seriousness or repetition; (b) the question whether
the other
penalties prescribed in Section 12 (5) is sufficient. In Mr
Ntsebeza’s supplementary heads of argument, the requirements
of
Section 12 (5) (g) are objectively determinable jurisdictional facts.
The criticism is that the report that was presented before
the
National Assembly contains no explanation consistent with Section 12
(5) (g) why the sanction of suspension without pay was
considered to
be appropriate. Mr Ntsebeza argues further in the supplementary heads
that ‘…
it
contains no explanation relating to why the other sanctions in
Section 12 (5) were not considered to be appropriate’
.
He concludes that ‘
it
is clear that the Committee and by extension the National Assembly
could not have applied its mind to a legislatively prescribed

requirement when it imposed the sanction of suspension without pay
and that invalidates the sanction it its entirety’
.
[44]
A mere look at the sanction imposed on the Category C, reveals that
the sanction imposed was not suspension. The relevant applicants
were
ordered to apologise to the House and fined an equivalent of 14 days’
salary and allowance. Of course Section 12 (9)
of the Powers,
Privileges and Immunities Act (dealing with suspension) is not
applicable to the Category C applicants. I can find
no evidence or
submission indicating how any conceivable relief predicated on
Section 12 (9) can possibly apply to applicants who
were not
suspended. The argument about jurisdictional facts is to me beyond
what one is capable of comprehending. I am of the view
that the
characterisation is not correct. The point is that Section 12 (9) (a)
deals with the degree of seriousness of the transgression
while
Section 12 (9) (b) with the sufficiency of the other penalties. Both
these sections raise matters of opinion and judgment.
I would hardly
describe them as raising objective facts. As Mr Duminy correctly
pointed out Section 12 (9) refers to circumstances
that are to be
‘found’ by the House. Evidently 350 to 400 members of the
National Assembly do not sit as a court of
law. The National Assembly
as the House cannot practically or procedurally make or define
findings of fact in the same way as a
court of law does or would be
expected to do. It is unfair and contrary to reality to expect that
the National Assembly should
have gone about and documented findings
relative to sanctions in the manner that a court of law would. I have
demonstrated earlier
in this judgment that in accordance with Section
53 (1) (e) of the Constitution ‘
all
questions before the Assembly are decided by a majority of the votes
cast.’
This
is and remains the mechanism for deciding all unresolved questions
before the House. There is obviously no provision for qualifications

to vote, nor for reasons. See
Oriani-Ambrosini
v Sisulu, Speaker of the National Assembly
supra
.
1.
[45] The
above does not at all purport to mean that every sub-component of a
resolution or decision must be voted upon separately.
The National
Assembly takes decisions by majority vote and that includes amongst
others the adoption of legislation. The fact is
that each one of the
majority may vote in favour for a different reason. What matters for
purposes of Section 53 of the Constitution
is the fact that the
majority voted in a particular way. It is important that the
Committee’s report, in fact the last eight
pages thereof were
devoted to ‘
relevant
considerations in respect of possible sanction’
.
The provisions of the Act were quoted. ‘
Relevant
considerations’
in respect of possible penalty or penalties were listed in paragraph
14.3 and addressed in paragraphs 14.5 to 14.7 of the report.
‘
Further
considerations’
were
raised and the ‘
conclusion’
proposed. To suggest that the sanction was a mere ‘
thumb
suck’
is totally wrong and unsustainable. On the presumption
omnia
praesumuntur rite esse acta
it must be assumed that all members of the National Assembly read the
report (which had been distributed on 11 November 2014 in

anticipation of a debate on 27 November), and were fully aware of the
requirements of the Act, and the recommendations the report

contained. No evidence exists to displace the above presumption. On
the contrary, the evidence in the papers and the unrevised
Hansard of
the National Assembly proceedings demonstrate as thorough a
ventilation of the report as one could expect. Notably,
the second
applicant even spoke during the debate expressing the attitude of the
party he leads as follow: ‘
So,
we do not have a problem with the outcomes of the Committee’
.
Dr Groenewald of the Freedom Front Plus said that ‘
the
offences must be halved’
.
What is pertinently clear is that there was no objection in principle
to suspension of the Category A and B applicants. There
were of
course disagreement with the length of the suspension. I hold a firm
view that it is not the function of this Court to
second-guess the
National Assembly as to the appropriateness of the sanctions(s)
imposed. Imposing sanction is as a difficult task
as imposing a
sentence on the guilty person in a criminal matter. The fact is the
offences were regarded by the House as serious.
The report states
that much. In my view one cannot fault the finding that these are
serious transgressions. They are indeed serious.
Such behaviour in
the National Parliament shall not be curbed if those involved are not
appropriately punished.
[46]
The truth is, ultimately, the National Assembly adopted the
Committee’s report in whole, including the Section dealing
with
sanction, by a majority vote. Importantly, none of those who voted
against its adoption motivated their stance by reference

to either of the considerations in Sections 12 (9) of the Powers,
Privileges and Immunities Act. In my judgment, on
a proper reading of
the evidence as a whole, it has been demonstrated that the National
Assembly did consider the provisions of
the Powers, Privileges and
Immunities Act. It found that the necessary pre- requisites for the
imposition of sanctions of suspension
on the Category A and B
applicants were present.
[47]
In passing, I must agree with Mr Duminy that the new formulation
(apparent in the new prayer 4 seeking to be an amended version
of
prayer 5 in the Notice of Motion) seeks to shift the focus from a
failure by the Speaker to ensure that the National Assembly
complied
with its obligations in terms of Section 55 (2) (to hold the
President accountable in relation to giving effect to the
Nkandla
report), to a declaration that the Speaker failed to ensure that the
President fulfilled his obligations towards the National
Assembly.
However, reliance is again placed on Section 55 (2) of the
Constitution. The truth is that Section 55 (2) of the Constitution

deals with the obligations of the National Assembly and not the
Speaker. It requires the provision of mechanisms for accountability

and oversight. It does not encompass ‘
a constitutional
mandate’
imposed on the Speaker to require better answers
to questions if she/he considers an answer to be inadequate or
‘
meaningless’
.
COSTS
[48]
As to the costs, the submission on behalf of the respondents is the
following:
‘
To the extent that it has
been argued that the applicants should be immune from adverse costs
orders because they raised important
constitutional issues, it is
submitted that this application was in reality not about those
issues, but about parliamentary decorum
and behaviour. The
substantive constitutional issues do not arise for decision in this
case, and were dealt with in the various
decisions of the SCA and the
Constitutional Court referred to during argument. In addition, the
applicants have conducted the present
litigation in an unacceptably
haphazard and costly manner. It is submitted that they should not be
afforded any protection from
an adverse costs order.’
In
the final analysis this court is clothed with a discretion to be
exercised judiciously and reasonably when it considers the question

of costs. There is a host of considerations that the court must take
into account in the exercise of its discretion in this regard.
It is
unnecessary to set out such considerations because any conceivable
listed factors can never purport to be exhaustive.
CLOSING
REMARKS
[49]
The applicants’ reliance on
EFF
v Speaker, National Assembly
2016 (3) SA 580
(CC) is misplaced. It is seemingly overlooked that
the events in issue in the present proceedings occurred in December
2014. At
the latter time, the reports of the ad hoc committees were
awaited. Sight must not be lost of the fact that the internal
evaluation
process undertaken by the National Assembly is indeed
consistent with the exposition set out at paragraphs [85]  to
[87] and
[93] and [96] of the
Nkandla
judgment.
A firm statement must be made that the Constitutional Court in the
Nkandla
judgment criticised the conduct of the National Assembly upon receipt
of the report by the Minister of Police, but recognised that
it was
proper for the National Assembly to have taken steps to study and
evaluate the report of the Public Protector.
[50]
This case is not concerned with the merits of the arguments around
the Public Protector’s Report. The present case has
of course
everything to do with the manner in which the second and further
applicants conducted themselves in the National Assembly
on 21 August
2014 and the consequences thereof. The end does not always justify
the means in real life. I referred to the freedom
of speech dealt
with in the
Democratic
Alliance v Speaker, National Assembly and Others
case
supra
.
This is documented in Section 58 of the Constitution. But it is
important that the proviso to Section 58 (1) (a) of the Constitution

and the jurisprudence developed around this proviso, is not lost
sight of. It is hardly helpful to raise arguments about the
interpretation
of the Rules of the National Assembly. The implicit
premise is that unspecified parts of the Rules are inconsistent with
the Constitution.
The difficulty though is that the Rules or part
thereof in question have not been identified and no case has been
made out or advanced
in the Notice of Motion concerning this
assertion.
[51]
Each and every institution has rules constituting a cornerstone on
which such institution is built. Such rules regulate the
process and
functioning of such an institution. Rules may not be wished away or
ignored because they govern the functioning of
an institution. Once
rules are transgressed or overlooked the proceedings underway in any
institution descend into chaos. Chaos
having taken over, it becomes
impossible for the process intended to be proceeded with to advance.
Parliament in its wisdom designed
and promulgated these rules. The
least expected of members of Parliament is to adhere to them in order
to enable Parliament as
an institution to function and achieve
whatever is scheduled for the session. Even this Court has rules
governing its own processes.
It cannot function if such rules are not
adhered to. Parties may challenge the rules but that must be done
properly and in an orderly
fashion in courts. Parliamentary debates
on issues for the session can and do remain robust and uncompromising
without proceedings
descending into chaos and disorderliness. That is
made possible by adherence to the rules and Parliamentary practice.
Ill-discipline,
chaos and disorderliness are the very antithesis of
good Parliamentary practice and the decorum with which the House is
clothed.
ORDER
[52]
In the circumstances the following order is made:
(a) The Rule Nisi granted
by Davis J on 23 December 2014 is hereby discharged.
(b) The application (Part
B) is dismissed.
(c) There shall be no
order as to costs.
________________________
D
V DLODLO
Judge
of the High Court
I
agree.
________________________
B
P MANTAME
Judge
of the High Court
MINORITY
JUDGMENT
BOZALEK
J
Introduction
[1]
I
have read the comprehensive judgment of my brother Dlodlo J and find
myself in agreement with the findings he makes and the conclusions
he
has reached save in one important respect. I agree that the
applicants have failed to make out a case that the National Assembly

(‘the NA’) or its Speaker failed to carry out their
duties to ensure that the Executive is accountable to the Assembly
in
relation to the question posed to President Zuma or that the present
Speaker (the second respondent) is not a suitable person
for that
position. I agree further that the applicants have failed to
establish that the findings of guilt made by the Powers and

Privileges Committee (‘the PPC’) in relation to the
charges of contempt brought against them were unfounded or unlawful.
[2]
Where
I find myself in respectful disagreement with Dlodlo J is on the
question of the lawfulness of the penalties imposed on those
members
comprising groups A and B all of whom were subjected to the penalty
of suspension from the House in terms of sec 12(5)(g)
of the Powers,
Privileges and Immunities of Parliament and Provincial Legislatures
Act, 4 of 2004 (‘the PPI Act’).
[3]
My
reasons for disagreeing and for proposing appropriate relief follow.
Penalty
[4]
An
important component of the applicants’ challenge to the
disciplinary action taken against them by the PPC and the NA related

to the penalties which were imposed on the 20 members of the Economic
Freedom Fighters (‘the EFF’), who were so disciplined.

The challenge to the penalties imposed was principally contained in
prayer 1 of Part B of the notice of motion which sought a declaratory

order that the decision taken on 27 November 2014 by the NA to adopt
the report of the PPC ‘
to
suspend the applicants without remuneration’
was
constitutionally invalid, unlawful and of no force and effect.
[5]
The
applicants’ case in this regard was made out in paras 111 to
113 of the second applicant’s founding affidavit which
read as
follows:
‘
Improper Application of
Sanction
111. In terms of section 12(5)(g)
of the Act, a member may be suspended without remuneration for a
period of up to 30 days consequent
upon a finding of misconduct or
contempt of Parliament. This provision is qualified by sec 12(9),
which provides:
‘
A member may not be
suspended under subsection (5)(g) unless the House has found that –
(a)
the member is guilty of
a serious or repeated contempt;
and
(b)
none
of the other penalties set out in subsection (5) will be sufficient.’
(Emphasis added).
112. Thus, (sic) any decision to
suspend a member of National Assembly without remuneration is
considered, two peremptory factors
must be taken into account.
First
,
the gravity of the charge by reference to seriousness and its
repetition.
Second
, whether or not the other penalties in
subsection (5) are sufficient. These are jurisdictional facts for the
imposition of the
sanction of suspension without pay, if they are not
present the suspension without pay is unlawful. In this case, as
explained
below, neither the committee nor the National Assembly
applied themselves to these jurisdictional facts.
113. The report of the Committee
makes no reference to why the sanctions in section 12(5) are not
sufficient. It also makes no reference
to the gravity of the office
(sic) or its repetition. The inescapable inference is that the
Committee did not apply its mind to
the mandatory provisions of the
legislation. This vitiates the entire proceedings or alternatively
the sanctions imposed. The National
Assembly did not debate whether
or not the other sanctions provided for in section 12(5) are
sufficient. It simply adopted the
flawed report of the Committee’.
[6]
It
is common cause that suspensions as provided for in terms of sec
12(5)(g) of the PPI Act were imposed on those applicants comprising

groups A and B as identified by the PPC. The penalty recommended by
the PPC and ultimately imposed on group A members was suspension
for
a period of 30 days without remuneration, and in respect of group B
members, suspension for a period of 14 days without remuneration.
[7]
In
respect of the seven members of group C (all of whom were convicted
of one charge of contempt only) the penalty was:
(a) An order for the members to
apologise to the House in a manner determined by the House, in terms
of sec 12(5)(c) of the Act;
and
(b) A fine equivalent to 14 days
salary and allowances payable to the member concerned by virtue of
the Remuneration of Public Office
Bearers Act, in terms of sec
12(5)(f) of the Act.
[8]
In
their heads of argument it was contended on behalf of the applicants
that the requirements of sec 12(9)(a) and (b) are ‘
objectively
determinable jurisdictional facts’
and reliance was placed on
Democratic
Alliance v President of the Republic of South Africa and Others.
[1]
It was further contended on their behalf that the report presented by
the PPC and considered by the NA contained no explanation
consistent
with sec 12(9) as to why the penalty of suspension was considered to
be appropriate and, in particular, why none of
the other sanctions in
sec 12(5) were not considered to be appropriate. From these premises
it was argued that it was clear that
the PPC, and by extension the
NA, could not have applied its mind to a legislatively prescribed
requirement when it imposed the
suspensions and that this invalidated
those penalties in their entirety.
[9]
Determining
this issue requires in the first place an examination of what the PPC
said in its report in regard to the penalty of
suspension. But before
doing so it is necessary to address the question of whether the
action complained of constitutes administrative
action thus making it
susceptible to a review challenge.
Is
the PPC’s report administrative action?
[10]
On
behalf of the respondents it was contended that the relief sought in
prayer 3, namely, the review and setting aside of the PPC’s

report, was incompetent since the report is not administrative
action, it having no internal or external legal effect until adopted

by the NA. It should first be noted that even if this argument is
accepted it does not affect the relief sought by the applicants
in
regard to the suspension penalties since that is covered by the
declaratory relief sought in prayer 1 in relation to the NA’s

resolution accepting the PPC’s report.
[11]
Be
that as it may, in terms of sec 1 of PAJA in order to meet the
definition of ‘
administrative
action’
the challenged decision must be:
‘
by
– (a) an organ of state, when –  …
(ii)
exercising a public power or performing a public  function in
terms of any legislation;…
which
adversely affects the rights of any person and which has a direct,
external legal effect...’
[2]
[12]
There
can be no doubt that the PPC, being a statutory committee appointed
in terms of sec 12 of the PPI Act, is ‘
an
organ of state’
as defined by sec 239 of the Constitution, more particularly an
‘
institution
… exercising a public power or performing a public function in
terms of any legislation … .’
[13]
The
PPC took a decision, namely that its findings in respect of the guilt
of the applicants and its recommended penalties be adopted.
In my
view that decision adversely affected the rights of the applicants
and had a ‘
direct,
external legal effect’
inasmuch
as the way was then open for the NA to adopt the report’s
findings and recommendations.
[14]
It
is indeed so that until the findings of guilt and penalty
recommendations in the PPC’s report were adopted by the
majority
of the NA following a vote, they had no binding force
vis-à-vis the applicants. However, the PPC’s findings
and penalty
recommendations were a necessary pre-condition to the NA
debating and voting on the report. As such they exposed the
applicants
to the very real possibility of the findings and
recommendations being adopted, as they were in the present matter.
[15]
What
is more, as was stated by Nugent JA in
Grey’s
Marine
,
[3]
the reference to rights in sec 1 of PAJA i.e. ought not to be taken
literally:
‘
While PAJA’s
definition purports to restrict administrative action to decisions
that, as a fact, “adversely affect the
rights of any person”,
I do not think that literal meaning could have been intended. …
The qualification, particularly
when seen in conjunction with the
requirement that it must have a “direct and external legal
effect”, was probably
intended rather to convey that
administrative action is action that has the capacity to affect legal
rights, the two qualifications
in tandem serving to emphasise that
administrative action impacts directly and immediately on
individuals.’
[4]
[16]
In
any event once the NA itself adopted the PPC’s findings, and in
particular its recommendations on sanctions, that report
became
reviewable administrative action if only because, whilst those
recommendations stand, the PPC cannot reconsider them.
[17]
In
the result I find that it is legally competent for the findings or
recommendations of the PPC to be reviewed and/or set aside
at this
stage of events.
The
report of the PPC and the justification for the suspensions
[18]
The
question of sanction was dealt with in paragraphs 15 to 17 and 18.2
of the PPC’s report. They deal with ‘
mitigating,
aggravating and other factors’
,
the initiator’s presentation on aggravating and other factors
(which was inclusive of recommended sanctions) and ‘
(p)enalties
recommended by the Committee’
.
These sections of the PPC’s report do not reflect, however,
what reasoning informed its recommendation on penalties. Such
reasons
as exist are only found in the document, Annexure A, entitled
‘
Presentation
by the initiator on mitigating and other factors’
(‘the
presentation’).
[19]
The
following observations or submissions found in the presentation are
relevant. Firstly, the initiator states that the charges
are ‘
all
of a serious nature’
.
The provisions of sec 12 of the PPI Act are set out including those
in sec 12(9) which set out the two pre-conditions to the imposition

of a suspension in terms of sec 12(5)(g). In further paragraphs the
seriousness of the charges are emphasised and adumbrated upon
on a
charge by charge basis and various aggravating factors are
emphasised. In para 14.5 the very limited participation of the

applicants in the disciplinary proceedings and their lack of remorse
was recorded. It is further recorded, in para 14.6, that the

applicants had not been involved in any previous incidents in the NA
involving contempt.
[20]
Assuming
that the PPC considered that presentation, as I consider one must,
the averment by the second applicant that the report
of the PPC makes
no reference to the gravity of the offence or its repetition,
although strictly speaking correct, does not assist
the applicants in
their challenge. This is because the report refers to and attaches
the presentation which deals at some length
with the seriousness of
the offences and presents the conclusion that the misconduct in
question constituted serious contempt.
Furthermore, if this latter
conclusion is accepted then given the wording of sec 12 (9)(a)
whether or not the applicants had previously
been found guilty of
contempt was not relevant to the question of whether a suspension
could be imposed.
[21]
That
leaves the applicants’ complaint that the PPC’s report
made no reference to why the penalties set out in sec 12(5),
other
than suspension, were not sufficient and that the NA did not debate
this question either.
[22]
It
is correct that the PPC’s report itself made no reference to
that issue. Consideration, however, must also be given to
the
initiator’s presentation in this regard. In paras 14.7 and 14.8
of the presentation the interests of Parliament and ‘
further
considerations’
are canvassed. In para 14.9 the initiator purports to reach, and set
out, his conclusion on possible penalties to be imposed on
the
applicants. The only portion of the presentation in which the
initiator deals with the pre-conditions in sec 12(9) which must
be
satisfied before a suspension can be imposed is para 14.9.3. It reads
as follows:
‘
14.9.3  Further, and in
accordance with the provisions of clause 12(9) of the Act, the
Committee may recommend the suspension
of, and the House may impose
the suspension of, any of the named Honourable Members in terms of
clause 12(5)(g) of the Act as they
have been found guilty of serious
contempt by the committee
and
none of the other penalties set out in clause 12(5) of the Act would
be sufficient. It is respectfully submitted that this course
of
action is appropriate in the circumstances
.’
[my underlining]
[23]
Thus,
apart from what is quoted above, there is no discussion or process of
reasoning either in the PPC’s report or the presentation

setting out why, to use the words of sec 12(9)(b): ‘
none
of the other penalties set out in subsection 5 will be sufficient’
.
Put differently, the high-water mark of the respondents’ case
justifying the suspensions is to be found in the initiator’s

presentation and comprises the bald submission that, the members
having been found guilty of ‘
serious
contempt’,
none of the other penalties ‘
would
be sufficient’
.
[24]
Even
on its own terms, moreover, the initiator’s presentation makes
no sense or is at best contradictory in regard to the
penalty of
suspension which it appeared to propose. This is because, ultimately,
no specific sanction is recommended in the presentation.
In the case
of each of the three groups, notwithstanding the submission in para
14.9.3 that suspension would be the appropriate
penalty, the
initiator concludes as follows:  ‘
It
is submitted that a sufficient penalty in respect of these Honourable
Members should be a serious penalty or penalties’
.
This of course begs the question as to whether a suspension was the
only appropriate penalty.
[25]
This
non-committal formulation in the initiator’s presentation in
effect forces one back to the PPC’s report (specifically
para
17) in search of its reasoning for the penalties recommended in
respect of each of the three groups. However, as mentioned,
no
discussion or process of reasoning is to be found in the body of the
report, merely the recommended sanction preceded, in each
case, by
the following sentence: ‘
(f)ollowing
the findings by the Committee and the presentation by the initiator
the Committee proceeded to deliberate on the
appropriate penalties
for the members found guilty on the charges’
.
It is perhaps noteworthy that in the case of each of the three
groups, two members of the PPC recommended a reprimand as a penalty.
[26]
Thus,
taken as a whole the PPC’s report, beyond an implied acceptance
of the initiator’s initial submission in para
14.9.3 of his
presentation that no penalty other than a suspension would be
sufficient for the members of groups A and B, reflects
no process of
reasoning or the content of any deliberation relating to the
appropriateness of the suspensions which it recommended.
[27]
Also
noteworthy is the fact that, although a penalty
not
involving a suspension was imposed on the members of group C, the
reasoning behind this recommendation cannot be found in either
the
PPC’s report or the initiator’s presentation. Compounding
the absence of any reasoning process by the PPC in relation
to the
penalties imposed is the unexplained discrepancy in para 17.3 of its
report between the penalty recommended for the members
of group C –
an apology and a fine of two weeks salary and allowances – and
the proposal which the majority of the
PPC’s members apparently
concurred in – an apology ‘
and
that the members be
suspended
for a period of 14 days without remuneration’
.
[my
underlining].
[28]
It
also bears emphasis that the initiator’s presentation, insofar
as it related to appropriate penalties, comprised his submissions
and
did not necessarily represent the views of the PPC itself or a
majority of its members. Furthermore, the PPC did not explicitly

accept any submission made by the initiator in his presentation.
[29]
In
considering whether the applicants made out their case in regard to
the penalties imposed, regard must also be had to how the
respondents
responded to the applicants’ challenge to the suspension
penalties as set out in paras 111 – 113 of the
second
applicant’s founding affidavit.
[30]
The
first possible response was that of the Speaker in the interdict
proceedings but she chose not to deal with the contents of
the said
paragraphs. The Speaker later filed a more substantive answering
affidavit pointing out that due to time constraints it
had not
initially been possible for her to deal more comprehensively with the
allegations in the founding papers. Again, the Speaker
elected not to
deal with those specific allegations but this is understandable,
however, since she played no active role in the
disciplinary
proceedings.
[31]
The
third respondent and chair of the PPC, Mr BC Mashile, also filed
answering affidavits both in the interdict and the review
proceedings. In his first affidavit Mr Mashile did not deal with the
contents of paras 111 – 113 of the second applicant’s

founding affidavit. He denied that the PPC had acted in any way that
was procedurally unfair or that rendered its proceedings liable
to be
reviewed or set aside. In his second affidavit, filed in more
leisurely circumstances, despite dealing with a wide range
of issues
relating to the disciplinary proceedings including ‘
penalties
and mitigating factors’
,
Mr Mashile did not specifically deal with the contents of paras 111 –
113 of the founding affidavit.
[32]
Mr
Mashile did record that the PPC had been presented with the
initiator’s written submissions, Annexure A to the PPC’s

report, and that the initiator had taken the PPC through them. He set
out the provisions of sec 12 of the PPI Act, including those
in
subsection 12(5) and 12(9). He explained that various considerations
were taken into account in regard to the penalties the
PPC
recommended including the seriousness of the charges, the extent of
acknowledgement of wrongdoing and remorse; cooperation
with the work
of the PPC; any previous incidents involving the applicants (of which
there was none); the interests of Parliament
and further
considerations which included the defiant attitude of the third
applicant towards the Speaker on the day in question.
[33]
Mr
Mashile stated (in para 17) that at the start of this part of the
PPC’s deliberations some members had requested information
on
previous incidents involving similar offences and specifically what
penalties had been imposed. They were advised by the PPC’s

legal advisors, however, that this was the ‘
first
time that misconduct charges had been referred to the Committee’
and
that there was therefore ‘
no
direct precedent’
.
He referred to an incident some years previously when two members of
the party had been involved in a bout of fisticuffs in the
chamber of
the NA after it had adjourned. Those members had settled their
differences and issued a joint statement in which they
apologised
unconditionally to the House for their role and in addition one
member had been suspended for five days and the other
for one day.
[34]
Mr
Mashile explained that in the discussions on the penalty he commenced
by calling for recommendations in each case. He then set
out the
PPC’s eventual recommendations as well as the (minority)
recommendations for a reprimand in each case.  The
only
explanation which Mr Mashile gives for the penalties reads as
follows: ‘
(t)he
recommended penalties were not the most severe, despite the
seriousness of the matters. The approach was to recommend sanctions

that will indicate the seriousness of the behaviour and seek to
correct it, rather than to punish’
.
It is worth pointing out that this statement is not entirely correct
since the penalty imposed on group A i.e. suspension for
30 days
without pay, is the most severe provided for by sec 12(5) of the PPI
Act.
[35]
Transcripts
of the deliberations of the PPC were available since a portion
thereof was annexed by Mr Mashile to his affidavit but
it does not
include the deliberations of the PPC on the question of penalties.
This does indicate, however, that any deliberations
by the PPC on the
appropriateness of the suspension sanctions could have been produced.
[36]
Looked
at overall, therefore, notwithstanding the unambiguous nature of the
challenge by the applicants to the appropriateness of
the suspension
penalties as set out in paras 111 – 113 of the second
applicant’s founding affidavit, Mr Mashile, the
chairman of the
PPC chose not to deal directly with the subject in his two answering
affidavits.
[37]
Finally,
one must have regard to the manner in which, if at all, the NA
addressed the question of whether the penalties imposed
on the
members of groups A and B met the requirements of sec 12(9) of the
PPI Act and in particular the requirement that none of
the other
penalties in subsection 12(5) should be sufficient. This aspect was
addressed in the answering affidavit of Mr SC Tsenoli,
the Deputy
Speaker of the NA, who presided over its proceedings on 27 November
2014 when the report of the PPC into the findings
of contempt by the
applicants was tabled, debated and adopted.
[38]
The
Deputy Speaker annexed a copy of the unrevised Hansard of the NA
reflecting those proceedings. He stated, in short, that the
merits of
the report were debated, that Mr Shivambu (the third applicant) had
sought to move an amendment to the report but, through
non-compliance
with the NA’s rules he had eventually been disallowed from
proceeding therewith. He advised further that a
representative of the
Democratic Alliance had also moved an amendment and, after a division
of the House was called for, the matter
was put to a vote and the
amendment was defeated. Thereafter the motion to adopt the report was
put to a vote and was passed.
[39]
The
Hansard transcript of the proceedings runs to some 250 pages.
Although the PPC’s report was debated the question of whether

the recommended penalties were appropriate, and specifically the
question of whether the provisions of sec 12(9) had been met,
were
not, as far as I can see, addressed by any speaker.
[40]
The
question of sanction was, at best, directly addressed by only one
speaker, Mrs C Dudley who, noting that the applicants were
‘
first
time offenders’
some of whom had the ‘
maximum
sentence’
imposed upon them, expressed the view that the penalties should have
been suspended to give the applicants a second but final chance
and
‘
an
opportunity to learn from the experience along with the rest of us’
.
[41]
It
may also be material to record that the PPC’s report had
appeared in the ‘
Announcements,
tablings and committee reports of Parliament’
on 11 November 2014. Presumably members of the NA were able to access
the report from that date onwards for the purposes of preparing
to
debate it.
Discussion
[42]
Section
12 of the PPI Act, insofar as it is relevant, provides as follows:
‘
12(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.
…
(5) When a House finds a member
guilty of contempt, the House may, in addition to any other penalty
to which the member may be liable
under this Act or any other law,
impose any one or more of the following penalties:
(a) a formal warning;
(b) a reprimand;
(c) an order to apologise to
Parliament or the House or any person, in a manner determined by the
House;
(d) the withholding, for a
specified period, of the member's right to the use or enjoyment of
any specified facility provided to
members by Parliament;
(e) the removal, or the suspension
for a specified period, of the member from any parliamentary position
occupied by the member;
(f) a fine not exceeding the
equivalent of one month's salary and allowances payable to the member
concerned by virtue of the Remuneration
of Public Office Bearers Act,
1998 (Act 20 of 1998);
(g) the suspension of the member,
with or without remuneration, for a period not exceeding 30 days,
whether or not the House or
any of its committees is scheduled to
meet during that period.
…
(9) A member may not be suspended
under subsection (5) (g) unless the House has found that-
(a)
the
member is guilty of a serious or repeated contempt; and
(b)
none
of the other penalties set out in subsection (5) will be sufficient.’
[43]
Section
12(5) thus embodies a range of penalties of increasing severity
commencing with a formal warning and concluding with the
suspension
of the member for a period not exceeding 30 days, with or without
remuneration. It is clear that in making these provisions
the
legislature was aware that a suspension of a member should be a last
resort. Section 12(9) explicitly recognises this by establishing
the
two pre-conditions for such a finding, namely, serious or repeated
contempt and that none of the other penalties would be sufficient.
[44]
It
was contended on behalf of the applicants that a suspension was
correctly recognised as a last resort by the legislature since
it has
the effect of barring the member from carrying out his/her essential
function and duty as a member of the NA, namely, to
participate in
the business of the NA either through attendance in the NA or in its
committees. Any suspension would prejudice
not only the member but
the constituency that he/she represents in Parliament since his/her
voice would be silenced in the NA for
its duration. This might also
occur at a time when the NA was sitting to hear a vital debate, to
vote on an important motion or
when a Parliamentary committee on
which the member sat was meeting. If imposed without due
consideration a suspension penalty could
remove or weaken the
leadership of a party or its members at a critical time.
[45]
The
structure of sec 12(9) of the PPI Act read with 12(5) makes it clear
that the suspension penalty is not one to be imposed lightly
and
certainly not without the members of the PPC (and thereafter the NA)
giving serious consideration to whether the less drastic
penalties
might not be appropriate.
[46]
As
previously mentioned, counsel for the applicants contend that the two
requirements set out in sec 12(9) for the imposition of
the
suspension penalties were objective jurisdictional requirements and
that, despite the pointed nature of the applicants’
challenge,
there was no evidence that the second of these jurisdictional
requirements had been met. As such the suspension penalties
imposed
on groups A and B were unlawful and unconstitutional and, at least to
that extent, the proceedings of the PPC and the resolution
of the NA
fall to be set aside.
[47]
I
did not understand respondent’s counsel to take issue with the
contention that the two pre-conditions to the imposition
of a
suspension sanction were objective jurisdictional requirements. The
respondents’ argument was, as I understood it, that
both such
pre-conditions had been met.
[48]
In
my view the requirements that before a member found to have committed
contempt can be suspended he/she must have been found guilty
of
serious or repeated contempt and that no lesser penalty would be
sufficient, are indeed objective jurisdictional facts.
[49]
There
are several reasons for this conclusion. In the first place there is
the constitutional importance of sec 12(9) of the PPI
Act for all the
reasons discussed above. A second reason is the language used in sec
12(9) which refers to findings by the House
(‘
unless
the House has found …’
).
It does not state, for example, that a suspension can be imposed
where ‘
in
the opinion of the House’
or ‘
if
the House is satisfied that’
the pre-conditions are met. The PPI Act could easily have done so had
it been the intention of the legislature to leave this issue
in the
complete discretion of the PPC or the House. Finally, although to a
lesser or greater extent both requirements of sec 12(9)
involve value
judgments, it does not follow that they are not objective
jurisdictional facts.
[50]
In
Democratic
Alliance v President of the Republic of South Africa and Others
the Court was concerned with the requirement in
sec 9
of the
National
Prosecuting Authority Act, 32 of 1998
that the National Director of
Public Prosecutions had to ‘
be
a fit and proper person, …’.
The
Court held that this requirement was an objective jurisdictional
fact, Yacoob ADCJ stating in this regard:
‘…
it is correct that the
determination whether a candidate does fulfil a fit and proper
requirement stipulated by the Act involves
a value judgment. But it
does not follow from this that the decision and evaluation lie within
the sole and subjective preserve
of the President. Value judgments
are involved in virtually every decision any member of the executive
might make where objective
requirements are stipulated. It is true
that there may be differences of opinion in relation to whether or
not objective criteria
have been established or are present. This
does not mean that the decision becomes one of subjective
determination, immune from
objective scrutiny.’
[5]
[51]
Even
if sec 12(9) had required no more than that the NA (following the
PPC’s report) held the subjective view that the two

pre-conditions were met the requisite jurisdictional facts would not
exist where, in forming that opinion, those bodies had not
applied
their mind to the matter.
[52]
This
was explained in the following terms by Brand JA in
Kimberley
Junior School and Another v Head Northern Cape Education Department
and Others
:
[6]
‘
[12] … As was pointed
out by the Constitutional Court in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
(supra)
para 168 n 132, the judgment of Corbett J in
South
African Defence and Aid Fund and Another v Minister of Justice
1967
(1) SA 31
(C) remains the leading authority on jurisdictional facts
in our law. In that judgment Corbett J (at 34 in fine - 35C)
identified
two categories of jurisdictional facts that can be
encountered in empowering legislation. The first category, described
as “objective
jurisdictional facts”, includes the type of
fact or state of affairs that must exist in an objective sense before
the power
can validly be exercised. Here the objective existence of
the fact or state of affairs is justiciable in a court of law. If the

court finds that objectively the fact or state of affairs did not
exist, it will declare invalid the purported exercise of the
power.
[13] In the second category, that
of subjective jurisdictional facts, the empowering statute has
entrusted the repository of the
power itself with the function to
determine whether in its subjective view the prerequisite fact or
state of affairs existed or
not…  The court can only
interfere where it is shown that the repository of the power, in
forming the opinion that
the fact or state of affairs existed, had
failed to apply its mind to the matter. Whether a particular
jurisdictional fact can
be said to fall within the one category or
the other, will depend on the interpretation of the empowering
statute.’
[53]
In
Walele
v City of Cape Town and Others
,
[7]
although an ‘
is
satisfied’
clause was in issue, the Constitutional Court nonetheless held as
follows:
‘
In
the past, when reasonableness was not taken as a self-standing ground
for review, the [decision-maker’s]
ipse
dixit
could have been
adequate. But that is no longer the position in our law. More is now
required if the decision-maker's opinion is
challenged on the basis
that the subjective pre-condition did not exist. The decision-maker
must now show that the subjective opinion
it relied on for exercising
power was based on reasonable grounds.’
[54]
In
regard to the first requirement in sec 12(9) during argument both
parties approached the concept of ‘
repeated
contempt’
as being conduct on a prior occasion, a situation which did not apply
to any of the applicants. However, the parties appeared to
be
ad
idem
that the requirement or pre-condition in sec 12(9)(a) was met by
reason of the fact that the members in question were guilty of

‘
serious’
contempt. In my view, for the reasons set out by Dlodlo J, this
approach was correct and what the PPC had to deal with was serious

contempt, at least as regards groups A and B, and thus the first
requirement for the imposition of a suspension penalty was met.
[55]
As
regards the second requirement respondents’ counsel placed
reliance on the PPC’s report, more specifically paras
14.9.3 of
the initiator’s presentation. Counsel relied, further, on the
submission that, even if any reasoning process or
explicit finding
that no other penalty was sufficient was absent from the report (or
elsewhere), this did not on its own mean that
this issue had not been
considered by the PPC or the NA.
[56]
On
the written record the high-water mark of the respondents’ case
is the submission in para 14.9.3 of the initiator’s

presentation that ‘
as
they have been found guilty of serious contempt by the Committee and
none of the other penalties set out in clause 12(5) of the
Act would
be sufficient … this course of action is appropriate in the
circumstances’
.
However, as previously noted, this was no more than a submission made
by the initiator in his presentation. Even then when he
went on to
make a penalty recommendation in his presentation it was not specific
but merely that ‘
a
sufficient penalty … should be a serious penalty or
penalties’
.
Furthermore, the initiator’s submission that‘…
none
of the other penalties would be sufficient’
was simply a conclusion, unsupported by any explicit reasoning
process. Lastly, the initiator’s submission, whatever its

worth, was not expressly adopted by the PPC in its report which says
no more than that the PPC ‘
proceeded
to hear the initiator’s presentation’
.
[57]
Taken
together with the failure of the PPC’s chairman to address, in
his answering affidavits, the pointed challenge by the
applicants
relating to the second jurisdictional requirement, this lack of
reasoning or explanation as to why the other penalties
in subsection
12(5) were insufficient, serves only to strengthen the impression
that this requirement was not given proper consideration
by the PPC
and by the NA prior to their adoption of the report.
[58]
The
ground of review relied upon by the applicants was expressed as being
a failure on the part of the PPC and the NA to apply their
minds.
Under the common law this ground of review had no precise meaning and
could include many instances of bad decision-making.
The expression
is not used in PAJA but, according to Professor Hoexter,
[8]
on one interpretation means ‘
failure
to exercise the power properly’
.
[9]
[59]
The
ground of failing to take into account relevant considerations (sec
6(2)(e)(iii) of PAJA) would seem to encompass  the
case made out
by the applicants but equally they would be entitled to rely on the
grounds set out in sec 6(2)(b) (a mandatory procedure
or condition
prescribed by an empowering provision was not complied with) or sec
6(2)(i) (the action is otherwise unconstitutional
or unlawful).
[60]
Whatever
ground is ultimately relied upon the key issue is, in my view, the
paucity of evidence indicating that the decision makers
did in fact
apply their minds to the critical requirement in sec 12(9)(b) of the
PPI Act. This failure to apply their mind can
in turn be inferred
from the absence of reasons from the respondents for the apparent
conclusion that no penalty other than a suspension
would be
sufficient for the members of group A and B. This has been discussed
at some length above. In summary little can be gleaned
from the
respondents’ answering affidavits since they fail to directly
address the issue notwithstanding that it was pertinently
raised by
the applicants. Nor does the contemporaneous record cast much further
light on the issue. The PPC’s report gives
no direct indication
of the thinking behind its recommendations. At most it indicates that
the PPC’s members received a presentation
from the initiator
relating to sanction and after deliberation decided to recommend the
suspension penalties. The implication the
respondents appear to
contend for is that the majority of the members of the PPC accepted
the submission of the initiator in relation
to the penalty of
suspension. However, the presentation does not directly or indirectly
address the question of why all the possible
penalties other than
suspension set out in sec 12(5) were insufficient and thus casts no
light on the PPC’s reasoning in
regard to this aspect.
[61]
Compounding
the opaqueness of the initiator’s submissions, which clearly
played a critical role in the PPC’s deliberations
on sanction,
is the further factor that the initiator’s initial submission
is contradicted by his final submission which,
in the case of each
group, goes no further than stating that a ‘
sufficient
penalty … should be a serious penalty or penalties’.
[62]
Given
this confusion and contradiction, and in the absence of any
meaningful clarification from the respondents in their answering

affidavits, the only conclusion which can be drawn is that the PPC,
and thereafter the NA, failed to appreciate the nature of,
or to
apply their mind to, the discretion which they were required to
exercise viz that the penalty of suspension could only be
recommended
(and ultimately imposed) as a last resort i.e. if all other available
penalties were insufficient. Bearing in mind
that the PPC failed to
apply its mind to the second of the requirements in sec 12(9) and did
not deal with it in its report to
the NA it is not surprising that
the NA would fail to appreciate that the question of penalty had not
been dealt with according
to the prescripts of the PPI Act and would
also fail to apply its mind to this critical aspect.
[63]
It
is not for this Court to express a view on what constitutes an
appropriate penalty following the contempt findings made by the
PPC
and endorsed by the NA since that is a function which has been
assigned to the PPC and NA by the PPI Act and by the Constitution.

The boundaries separating the powers and functions of the legislature
from those of the judiciary and the executive must, in this
and other
respects, be adhered to and respected. It is, however, the function
and the duty of the Courts to be the arbiter as to
whether, in
exercising its powers and in performing its statutory and
constitutional functions, Parliament has abided by the prescripts
of
the law. In my view the PPC and the NA failed to do so when they
recommended and then imposed the penalty of suspension upon
the
members of group A and B inasmuch there is no satisfactory proof that
in doing so the PPC (and the NA to the extent that it
adopted the
PPC’s report) applied their minds to the question of whether a
lesser penalty than suspension would suffice.
Conclusion
and remedy
[64]
It
follows from the above that, in my view, the penalties imposed on
these applicants who are members of group A and B are unlawful
and
fall to be reviewed and set aside.
[65]
The
question arises as to the most appropriate remedy in those
circumstances. Prayer 1 of the notice of motion seeks a declaration

that the adoption of the PPC’s report ‘
to
suspend the applicants without remuneration’
is
constitutionally invalid.  The context and nature of the matter
is such that it clearly engages constitutional issues. At
the level
of basic rights the action taken against the applicants compromises
their political rights. These are protected by sec
19 of the Bill of
Rights which provides, inter alia, for the right, if elected, to hold
public office (sec 19(3)(b)). Other basic
rights potentially
compromised by the suspensions are the rights to the freedom of
expression (sec 16), freedom of profession (sec
21) and just
administrative action (sec 33).
[66]
This
brings into operation sec 172 of the Constitution which confers wide
powers on any court deciding a constitutional matter.
It obliges such
a court to declare any law (or conduct) that is inconsistent with the
Constitution invalid to that extent and further
provides that in
addition a court may ‘
make
any order that is just and equitable’
.
At the same time the applicants are also asserting their right to
review administrative action and thus principles of administrative

law, insofar as they affect the remedy sought, must also be taken
into account. In circumstances such as the present these principle

dictate that the court will generally remit the matter back to the
original decision-maker rather than substitute the reviewed
decision
with its own. This principle is fortified in the present matter by
the Court’s deference to the legislature which,
through the NA
(acting in concert with the PPC), was assigned the power to
discipline its members for contempt.
[67]
It
is appropriate in my view to distinguish between the guilt findings
and the penalty recommendations. For the reasons set out
in the
judgment of Dlodlo J, with which I respectfully concur, the findings
on guilt must stand both at the level of the PPC’s
report and
the resolution of the NA.
[68]
Accordingly,
in my view, to meet the requirements of sec 172 of the Constitution
any order would have to set aside the PPC’s
penalty
recommendations in relation to groups A and B as well as the NA’s
resolution adopting those recommendations. At the
same time the
question of the appropriate penalty to be imposed should be remitted
back to the PPC and the NA for consideration
afresh in the light of
the Court’s reasons for its order.
[69]
Such
orders could, of course, ultimately result in different penalties
being imposed on the members of group A and B which raises
the
question of the inter-relationship between the penalties imposed on
the three groups. Should different penalties be imposed
on the
members of group A and B this might render the penalties imposed upon
the members of group C inappropriate, unjust or disproportionate.
On
the other hand, if left standing, the penalty imposed on the members
of group C, inasmuch as it imposed a benchmark penalty
for one charge
of contempt, could fetter the discretion of the decision-makers in
considering fresh penalties for the members of
groups A and B.
[70]
As
counsel for the respondents contended, however, the difficulty is
that the terms of prayer 1 appear to preclude the possibility
of
granting relief in relation to the members of group C. The prayer
asks only that the decision taken by the NA in adopting the
report of
the PPC ‘
to
suspend the applicants without remuneration’
be
declared unconstitutional, invalid, unlawful and of no force and
effect, thereby apparently excluding the members of group C.
[71]
Nonetheless,
I do not see this as a bar to granting relief which will allow the
PPC and the NA to impose penalties on all three
groups after a fresh
consideration of all the relevant factors. In effect those applicants
who are members of group C already seek,
in prayer 2 and 3, that the
entire disciplinary proceedings as well as the report of the PPC be
reviewed and set aside. Prayer
9 sought such further and/or
alternative relief as the Court may deem appropriate. What is more,
the relief to which the members
of group A and B are entitled –
consideration afresh of their penalty – could, for the reasons
already stated, be rendered
nugatory if the penalties in respect of
the members of group C are allowed to stand. It is important to bear
in mind in this regard
that the PPC and the NA approached the
imposition of penalties on a group basis and to this extent did not
individuate the penalties.
[72]
Having
regard to the provisions of sec 172 I consider that it would be just
and equitable to set aside the penalties in respect
of the members of
group C as well. In this way the PPC and the NA will start with a
clean slate and a full and unfettered discretion
to impose penalties
on all of the members found guilty of contempt without being
hamstrung by the penalties previously imposed.
I can see no prejudice
to the respondents if such an order is made since nothing will
prevent both the PPC and the NA from recommending
or imposing the
previous penalty on group C should this be their ultimate decision.
Such an order will also ensure that the question
of penalty is not
dealt with on a piecemeal basis.
Costs
[73]
The
applicants have enjoyed some measure of success insofar as the
penalties imposed on groups A and B. However, this falls well
short
of the relief initially sought since the contempt findings remain
standing and the applicants have obtained none of the relief
sought
in prayers 4 – 7 in relation to the duties and powers of the
Speaker and the NA arising from the question which was
initially put
to the President on 14 August 2014. In my view the costs order should
reflect the fact that much of the applicants’
challenge has
been unsuccessful. Having regard to all the circumstances I consider
that it would be appropriate that the applicants
should only be
awarded a portion of their costs. In my view an appropriate portion
would be half thereof.
[74]
In
the result I would make the following order:
1.
It
is declared that the decision taken on 27 November 2014 by the
National Assembly to adopt that part of the report of the Powers
and
Privileges Committee dealing with the recommended penalties for the
second to fourteenth applicants and suspending them, is

constitutionally invalid and unlawful and is of no force and effect.
2.
The
penalties imposed on the second to twenty-first applicants on 27
November 2014 by the National Assembly are set aside;
3.
The
matter is remitted back to the Powers and Privileges Committee and
the National Assembly to consider the issue of sanction afresh,
in
the light of the contents of this judgment and the provisions of sec
12(9) of the Powers, Privileges and Immunities of Parliament
and
Provincial Legislatures Act, 4 of 2004
4.
The
provisional order made on 23 December 2014 interdicting the
imposition of the penalties in respect of the second to twenty-first

applicants is made final;
5.
Prayers
4 – 7 in Part B of the application are dismissed;
6.
The
first, second and third respondents, jointly and severally, the one
paying the others to be absolved, are ordered to pay half
of the
applicants’ costs in the proceedings pursuant to Part B of this
application including the costs of two counsel where
so employed.
____________________
BOZALEK
J
APPEARANCES:
For
the Applicants: Adv. D Ntsebeza SC
Adv. Ngcukaitobi
Instructed by Godla &
Partners
For
the Respondents: Adv. W Duminy SC
Adv. N Mangcu-Lockwood
Instructed by the State
Attorney
L Manuel
[1]
2013 (1) SA 248
(CC).
[2]
Section 1(i) of Promotion of Administrative Justice Act, 3 of 2000
(‘PAJA’).
[3]
Grey’s Marine Hout Bay (Pty) Ltd and
Others v Minister of Police Works and Others
2005
(6) SA 313 (SCA).
[4]
Grey’s Marine
n 3 para 23. See also C
Hoexter
Administrative Law in
South Africa
2
nd
ed (2012) Juta at p 225.
[5]
Democratic Alliance
n 1 para 23.
[6]
2010 (1) SA 217
(SCA) paras 12 - 13.
[7]
[2008] ZACC 11
;
2008 (6) SA 129
(CC) para 60.
[8]
Hoexter
Administrative
Law in South Africa
n 5.
[9]
Citing
Johannesburg Stock Exchange v Witwatersrand Nigel Ltd.