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[2016] ZASCA 69
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Chairperson of the Nation Council of Provinces v Malema (535/2015) [2016] ZASCA 69; [2016] 3 All SA 1 (SCA); 2016 (5) SA 335 (SCA) (20 May 2016)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 535/2015
DATE:
20 MAY 2016
Reportable
In the matter
between:
CHAIRPERSON OF THE
NATIONAL COUNCIL OF PROVINCES
.......................
APPELLANT
And
JULIUS
MALEMA
............................................................................................
FIRST
RESPONDENT
ECONOMIC FREEDOM
FIGHTERS
.......................................................
SECOND
RESPONDENT
Neutral citation:
Chairperson of the National Council of
Provinces v Malema
(535/2015)
[2016]
ZASCA 69
(20 May 2016)
Bench:
Ponnan,
Leach, Petse, Saldulker and Swain JJA
Heard:
6
May 2016
Delivered:
20
May 2016
Summary:
Parliament – suspension of member –
for refusal to retract a statement ruled unparliamentary.
ORDER
On appeal from
:
Western Cape Division of the High Court, Cape Town
(Bozalek and Cloete JJ sitting as court of first instance): reported
sub nom
Malema & another v Chairman National
Council of Provinces & another
2015
(4) SA 145
(WCC).
(1)
Subject to para (2) below, the appeal is dismissed with costs, such
costs to include those consequent upon the employment of
two counsel.
(2)
The costs of the application for condonation in respect of the
respondents’ failure to timeously serve and file their
heads of
argument shall be paid by their attorney, Mr Godla,
de
bonis propriis
on
the attorney and own client scale.
JUDGMENT
Ponnan JA (Leach,
Petse, Saldulker and Swain JJA concurring):
[1]
Freedom of speech is a privilege essential to every free council or
legislature. As it was put by the English House of Commons,
at a
conference on 11 December 1667: ‘The members must be as free as
the houses’.
[1]
Freedom of speech and debates in Parliament are matters of the
highest constitutional importance. Parliament, by its very nature,
functions through a deliberative process. Debate is key to the
performance of its functions. That process can only be meaningful
if
members are afforded sufficient room to freely express themselves.
Parliamentary privilege and especially the absolute
privilege
or immunity in law which it gives, amongst others, to statements made
by Members of Parliament is essentially of
English origin.
[2]
[2]
As Corbett CJ pointed out in
Poovalingam v Rajbansi
[1991] ZASCA 124
;
1992 (1)
SA 283
(A) at 286C-H:
‘
In
1688 . . . the English Parliament passed the Bill of Rights, which
settled the succession to the Crown and declared the “Rights
and Liberties of the Subject”. The latter included freedom of
speech and the Bill of Rights declared (in the ninth article)
“(t)hat
the freedome of speech and debates or proceedings in Parliament ought
not to be impeached or questioned in any court
or place out of
Parliament”.
The
rights and liberties declared are referred to in the Bill of Rights
as “auntient” (ancient) and it is clear that
as far as
freedom of speech in Parliament is concerned the Bill of Rights was
merely declaratory of the legal position as it had
been for many
years . . . . In England there is thus in law an absolute
Parliamentary privilege of freedom of speech, the
effect of
which is to protect Members of Parliament from being sued for damages
or being criminally prosecuted in a court of law
for words spoken or
written in the course of Parliamentary proceedings. The privilege
rests upon two bases: (1) that Parliament
must have complete control
over its own proceedings and its own members and that accordingly
matters arising in this sphere should
be examined, discussed and
adjudged in Parliament and not elsewhere; and (2) that a Member must
have a complete right of free
speech in Parliament without any fear
that his motives or intentions or reasoning will be questioned or
held against him thereafter
. . . . According to Blackstone’s
Commentaries
on the Laws of England
4th ed by R M Kerr (1876) at 132, the privileges of Parliament were
principally established in order to protect its members not
only from
being molested by their fellow-subjects, but also more especially
from being oppressed by the power of the Crown’.
[3]
The first respondent, Mr Julius Malema, is the President and
Commander in Chief of the second respondent, the Economic Freedom
Fighters (the EFF), a political party registered as such in terms of
s 15
of the
Electoral Commission Act 51 of 1996
. On 17 June 2014, the
President of the Republic of South Africa delivered his State of the
Nation Address to a joint sitting of
the National Assembly (the NA)
and the National Council of Provinces (the NCOP). The next day and
during the course of a debate
on the President’s address, which
was then chaired by the appellant, the Chairperson of the NCOP (the
Chairperson), Mr Malema,
the leader of the EFF’s delegation in
the NA, stated:
‘
The
President said a minimum wage shall be investigated. There is no need
to investigate. This House must show leadership and courage.
The
workers have already shown the way. For five months now, workers in
the platinum belt have been on strike, which demonstrates
their
genuine determination. They were striking for R12 500, when the
ANC massacred 34 of them two years ago for doing so.
In honour of
those who died in Marikana, let this House legislate for R12 500.
This will be a sign of remorse and regret for
the Marikana massacre.
We also demand the establishment of a parliamentary commission on the
conditions and salaries of mine workers,
including the auditing of
the financial books . . .’
[4]
Mr BA Radebe, a member of the ruling party, the African National
Congress (the ANC), rose on the following point of order:
‘
The
speaker said the ANC government massacred people two years ago. Is
that parliamentary? Is there any proof of that? Could you
rule on
that, Chairperson?’
The
unrevised
Hansard
then records:
‘
The
Chairperson of the NCOP: Mr Malema?
Mr
JS Malema: I maintain that.
The
Chairperson of the NCOP: Mr Malema . . .
Mr
JS Malema: The ANC government massacred the people in Marikana. Those
police were representing the ANC government.
The
Chairperson of the NCOP: Mr Malema!
Mr
JS Malema: I am not going to withdraw.
The
Chairperson of the NCOP: Morena!
Mr
JS Malema: It’s not going to happen that.
The
Chairperson of the NCOP: Hon Malema, hon Malema . . .
Mr
JS Malema: I’m all yours, Chair.
The
Chairperson of the NCOP: Hon Malema!
Mr
JS Malema: Hon Chair.
The
Chairperson of the NCOP: Please accept that this House and all our
Houses of Parliament have simple Rules to follow in a debate.
The
last time we said hold your horses, because we were taking a point of
order. I was asked to rule, and even before I gave you
the go-ahead
you were on. Please do not do that again. The hon member of the ANC
raised a point. You contest that point –
you said that you were
sustaining it. I wish to take this point on advice, hon members, and
we will rule on it tomorrow, because
it is not an open-and-shut
statement that you make and conclude with. There are many
implications with it. I would like to be properly
advised when I come
back to this House with a ruling tomorrow. You may continue, Ntate
Malema.’
[5]
On 19 June 2014, and as per her intimation of the previous day, the
Chairperson ruled:
‘
Hon
members, having perused the
Hansard
,
I have arrived at the conclusion that the statements made by hon
Malema are unparliamentary and do not accord with the decorum
of this
House. Although members enjoy freedom of speech during the
proceedings of this House, this freedom is subject to limitations
imposed by the Constitution and the Joint Rule.
The
statements made by hon Malema suggest that the government –
which is made up of members of this House – deliberately
decided to massacre the people of Marikana. This does not only impute
improper motives to those members of the House, but it also
accuses
them of murder.
Secondly,
I must also indicate that there commission has been set up by the
President to enquire into this matter and that that
commission has
not yet made any findings. It is therefore undesirable to make
statements which will second-guess the outcomes of
commissions.
I
want to further remind hon members of this House that a Ruling made
by a Presiding Officer is final. Statements like “I
am not
going to withdraw” sound contemptuous and are also challenging
to the authority of the officer presiding.
Having
said that, hon members, I request hon Malema to withdraw his
statements which said that the ANC and the ANC government massacred
the people in Marikana.’
[6] Not only did Mr Malema
refuse to withdraw his previous statement, he added:
‘
Chair,
when the police reduce crime, you come here and say that the ANC has
reduced crime. When the police kill people, you don’t
want us
to come here and say that the ANC government has killed people. That
is inconsistent, hon Chair’
.
. .
‘
Mr
SJ Malema: Chair, I maintain that the ANC government killed people in
Marikana.’
He
was then commanded by the Chairperson to leave the House.
[7]
Aggrieved by the Chairperson’s conduct, Mr Malema (as the first
applicant) and the EFF (as the second) applied to the
Western Cape
Division, Cape Town for, inter alia, an order in the following terms:
‘
1.1
The following decisions made by the first respondent [the
Chairperson] on 19 June 2014 (the first respondent’s rulings)
are reviewed and set aside:
1.1.1
Her decision that statements made by the first applicant “are
unparliamentary and do not accord with the decorum of
this House.”
1.1.2
Her decision to request and order the first applicant to withdraw his
statement that the ANC government had massacred the
mineworkers at
Marikana in that the police who killed them represented the ANC
government.
1.1.3
Her decision to ask the first applicant “to leave the House.”
1.2
It is declared that the first respondent’s rulings were
unlawful and invalid.
1.3
The first respondent is ordered to apologise in public to the
applicants for her rulings.
1.4
The first respondent is interdicted from abusing her powers to
protect the governing party against lawful criticism in parliamentary
debate.’
The
Chairperson was cited as the first respondent in the application and
the ANC as the second. But the latter took no part in the
proceedings.
[8]
In opposing the application the Chairperson filed a fairly detailed
affidavit. I entertain some doubt as to whether regard can
be had to
the explanation and elaboration furnished in her affidavit in order
to construe her ruling. After all one imagines that
her ruling ought
to speak for itself and that what was stated before the joint sitting
constitutes the exclusive memorial of her
ruling – a ruling,
which, no doubt, was intended to define and govern the rights and
privileges of all the Members of the
House not just the respondents.
However, the issue not having been raised or properly considered, I
shall assume in favour of the
Chairperson (without deciding) that
such evidence is admissible for present purposes. To the extent here
relevant the Chairperson
stated:
‘
15.3
I made it clear that the statements which I considered
unparliamentary were those which suggested that the government, which
is made up of Members of the House, deliberately decided to massacre
the people of Marikana. I went on to say that this did not
only
impute improper motives to those Members of the House, but also
accused them of murder.
15.4
This was the reason for calling on the deponent to withdraw the
statements.
.
. .
15.11
I wish to emphasise that the deponent was not ordered to leave the
House because he maintained that the ANC government had
killed people
in Marikana, but because he refused to comply with my request and
later with my instruction to withdraw the offending
statement.
15.12
By refusing to comply with my instruction and request, the deponent
was in contempt or disregard of my authority and I was
therefore
entitled, by virtue of the provisions of Joint Rule 14G, to order him
to withdraw immediately from the Chamber for the
remainder of the
day’s sitting, the customary sanction when members decline to
withdraw statements that have been ruled unparliamentary.
.
. .
18.5
That the deponent claims to have expressed his opinion on a matter of
high public interest and that he and his party hold the
ANC
responsible for what happened at Marikana, is immaterial. It is what
he said of the government, not the ANC, that prompted
my ruling.
.
. .
18.63
In this regard it has to be pointed out that my decision requiring
the deponent to leave the House for the remainder of the
day’s
sitting was not punishment for what the deponent had previously said
of the government, but involved the exercise of
a power in terms of
Joint Rule 14G (NA rule 51) to the effect that if a Member is in
contempt of or disregards the authority of
the Chair, he or she may
be ordered to withdraw immediately from the House for the remainder
of the day’s sitting.
18.64
The Chair’s rulings constitute precedents by which subsequent
Chairs, Members and Officers are guided and such precedents
are noted
and, in the fullness of time, may be formulated as principles, or
rules of practice.
18.65
It is absolutely imperative that the Chair should be invested with
authority to repress disorder and to give effect promptly
and
decisively to the Rules and Orders of the relevant House.
.
. .
23.4
I reiterate that the only reason why I insisted that the deponent
should withdraw his offending remarks was because he imputed
improper
motives to Members of the House and accused them of murder, thereby
abusing them verbally and casting reflection on their
integrity.
.
. .
24.4
In
casu
I carefully weighed the deponent’s remarks
against the constitutional value of freedom of political speech and
concluded
that they reflected particularly adversely upon the
integrity of Members of the Cabinet who are Members of the NA.
.
. .
26.8
Finally, I point out, again, that the offending statement was not one
in relation to the governing party but in relation to
the government.
It was thus not a reference to the governing party that made the
statements unparliamentary or objectionable, it
was the reflection on
Members of the NA that was unparliamentary and underpinned my ruling.
.
. .
27.2
It was not his criticism of the ANC that offended against the rules
and precedent, it was his criticism of the ANC government.’
[9]
The application succeeded before the high court. Bozalek J (Cloete J
concurring) issued the following order:
‘
1.
That the following decisions by First Respondent on 19 June 2014 are
reviewed and set aside:
1.1
her decision that statements made by first applicant “are
unparliamentary and do not accord with the decorum of this House”.
1.2
her decision to request and order first applicant to withdraw this
statement that the ANC government had massacred the mineworkers
at
Marikana in that the police who killed them represented the ANC
government.
1.3
her decision to ask first applicant to “leave the House”.
2.
That the Applicants’ costs, including the cost of two counsel,
are to be paid by first respondent.’
[10]
The high court found that there was ‘no basis at all’ for
the Chairperson to ‘be ordered to apologise in
public to the
applicants for her rulings’.
[3]
Likewise, so held the high court, ‘the
applicants [had] failed to make out a case for the further order
sought, namely that
[the Chairperson] be interdicted from abusing her
powers to protect the governing party against “
lawful
criticism in parliamentary debate”
.’
[4]
The appeal by the Chairperson is with the leave of
the high court.
[11]
The constitutional regime which operated when
Poovalingam’s
case was decided was the Republic of South Africa Constitution Act
110 of 1983, which had no provisions corresponding with the
important
provisions of the present Constitution (Constitution of the Republic
of South Africa, 1996). South Africa is a constitutional
democracy,
foundational to which is an open and democratic society based on
freedom and equality. The notion of an open and democratic
society is
‘not merely aspirational or decorative, it is normative,
furnishing the matrix of ideals within which we work,
the source from
which we derive the principles and rules we apply, and the final
measure we use for testing the legitimacy of impugned
norms and
conduct.’ (
Coetzee v Government of
the Republic of South Africa; Matiso & others v Commanding
Officer Port Elizabeth Prison & others
[1995] ZACC 7
;
1995 (4) SA 631
(CC) para 46).
[12]
As Sachs J put it in
Democratic Alliance & another v Masondo
NO & another
[2002] ZACC 28
;
2003 (2) SA 413
(CC) para 42:
‘
The
requirement of fair representation emphasises that the Constitution
does not envisage a mathematical form of democracy, where
the
winner-takes-all until the next vote-counting exercise occurs.
Rather, it contemplates a pluralistic democracy where
continuous
respect is given to the rights of all to be heard and have their
views considered. The dialogic nature of deliberative
democracy
has its roots both in international democratic practice and
indigenous African tradition. It was through dialogue
and
sensible accommodation on an inclusive and principled basis that the
Constitution itself emerged. It would accordingly
be perverse
to construe its terms in a way that belied or minimised the
importance of the very inclusive process that led to its
adoption,
and sustains its legitimacy.’
[13] The first section of the Constitution upon
which reliance is placed on behalf of the Chairperson is s 57, which
provides that
the NA ‘may determine and control its internal
arrangements, proceedings and procedures; and make rules and orders
concerning
its business, with due regard to representative and
participatory democracy, accountability, transparency and public
involvement’.
[5]
There can be no doubt that this authority is wide enough to enable
the NA to maintain internal order and discipline in its
proceedings. As Mahomed CJ observed in
Speaker
of the National Assembly v De Lille
[1999]
ZASCA 50
;
1999 (4) SA 863
(SCA) para 16:
‘
This
would, for example, include the power to exclude from the Assembly
for temporary periods any member who is disrupting or obstructing
its
proceedings or impairing unreasonably its ability to conduct its
business in an orderly or regular manner acceptable in a democratic
society. Without some such internal mechanism of control and
discipline, the Assembly would be impotent to maintain effective
discipline and order during debates.’
[14]
The right to freedom of speech in the NA is expressly
constitutionalised in s 58(1)
(a)
,
which provides that Cabinet Members and Members of the NA
have freedom of speech in the Assembly and its committees,
subject to
its Rules and orders. Section 58(1)
(b)
(i)
goes on to provide that such members are not liable to civil or
criminal proceedings, arrest or imprisonment or damages ‘for
anything they have said in, produced before or submitted to the
Assembly or any of its committees’. Section 58(2) states
that
‘[o]ther privileges and immunities of the National Assembly . .
. may be prescribed by national legislation’.
[6]
Without those immunities, free speech would be severely curtailed.
According to the Constitutional Court (
Dikoko
v Mokhatla
[2006] ZACC 10
;
2006 (6) SA
235
(CC) para 39):
‘
Immunising
the conduct of members from criminal and civil liability during . . .
deliberations is a bulwark of democracy. It promotes
freedom of
speech and expression. It encourages democracy and full and
effective deliberation. It removes the fear
of repercussion for
what is said. This advances effective democratic
government.’
[7]
[15]
But, as Madlanga J observed in
Democratic Alliance v Speaker of
the National Assembly
[2016] ZACC 8
(
DA v Speaker of the NA
)
paras 38-39:
‘
Surely,
the privilege contained in sections 58(1)
(a)
and
71(1)
(a)
can
never go so far as to give members a licence so to disrupt the
proceedings of Parliament that it may be hamstrung and incapacitated
from conducting its business. This would detract from the very
raison
d'être
of Parliament. . . .
More
pertinently, sections 58(1)
(a)
and 71(1)
(a)
of the
Constitution make freedom of speech in the two Houses subject to “the
rules and orders” envisaged in sections
57 and 70. That
must mean rules and orders may – within bounds that do not
denude the privilege of its essential content
– limit
parliamentary free speech.’
[16]
Here the respondents do not dispute Parliament’s power to
self-regulate within constitutional bounds. Nor is the validity
of
the standing order, which reads: ‘…Members should not be
allowed to impute improper motives to other Members, or
cast personal
reflections on the integrity of Members, or verbally abuse them in
any other way’, challenged. What is in dispute
is whether the
Chairperson lawfully and rationally applied the standing order. The
legality and rationality thresholds are not
lowered because the
decisions were made in Parliament.
[8]
And testing the Chairperson’s exercise of what, after all, is a
public power against those thresholds falls well within the
judiciary’s constitutional province.
[9]
[17]
Mr Malema spoke in Parliament about what has been described as ‘a
burning issue of immense public interest’. The
Constitution
guards Parliament’s role as an incubator of political
speech.
[10]
There is nothing unparliamentary about robust, emotive language. In
Democratic
Alliance v African National Congress
[2015] ZACC 1
;
2015 (2) SA 232
(CC)
para 133, the Constitutional Court pointed out that:
‘
Political
life in democratic South Africa has seldom been polite, orderly and
restrained. It has always been loud, rowdy and fractious.
That is not
a bad thing. Within the boundaries the Constitution sets, it is good
for democracy, good for social life and good for
individuals to
permit as much open and vigorous discussion of public affairs as
possible.’
[18]
The purpose of the standing order is to ensure that parliamentary
debates are not clouded by personal insults.
Ad hominem
attacks do not contribute to democratic discourse, hence they are not
protected. But the standing order does not – and
constitutionally
cannot – go as far as impeding political
speech. It does not censor criticism of the government or its ruling
party. Importantly,
Mr Malema initially referred only to the ANC. It
was Mr Radebe who incorrectly attributed the words ‘ANC
government’
to him. The word ‘government’ was
thereafter embraced by Mr Malema. On any reckoning therefore Mr
Malema’s initial
statement was not unparliamentary and did not
give cause for Mr Radebe to rise on a point of order. The point of
order was plainly
based on a misconception of what had initially been
stated by Mr Malema.
[19]
In any event, even when regard is had to all of Mr Malema’s
utterances on the matter, it is plain that his primary target
was the
ruling party, not members of Parliament. On any sensible
interpretation of his words, he was criticising the government
and
its ruling party for the conduct of the police at Marikana. He did
not target Members of Parliament, either individually or
collectively. As he explains in his founding affidavit:
‘
My
statements had made it clear that I hold the ruling party responsible
for the massacre of the 34 mineworkers because the police
who had
killed them ‘were representing the ANC government’. No
reasonable person could have interpreted my statement
to mean that
all the ANC Members of Parliament were guilty of murder.’
[20]
The ANC is not the same as the ANC caucus in Parliament. For this
reason, the Chairperson has been forced to concede that criticism
of
the ANC does not contravene the standing order. She says it was
rather ‘what [the first respondent] said of the government,
not
the ANC, that prompted my ruling’. But the standing order does
not mention the government either. It only talks of Members
of
Parliament. For the standing order to apply, Mr Malema’s words
had to have targeted Members of Parliament. And so the
Chairperson
attempts to build an interpretive bridge between ‘ANC
government’ and ‘Members of Parliament’.
She does
so by reasoning that the government is ‘largely comprised of
Members of Parliament’ and so, to paraphrase
her, criticism of
‘the government’ should be understood as criticism
against ‘a large component of Members of
Parliament’. But
it is absurd to link ‘the ANC’ and ‘the ANC
government’ to ANC parliamentarians.
The Chairperson’s
logic is that ‘the government’ is largely comprised of
Members of the National Assembly. But
that is a linguistic leap. Mr
Malema makes plain that the police were representing the ANC
government. That can only be a reference
to the ANC-led executive and
it being vicariously liable for the conduct of the police. The fact
that Mr Malema initially mentioned
‘the ANC’ confirms
that his criticism was levelled against the ruling party and its
policies. In fact, he never mentioned
‘the government’
without prefixing it with ‘the ANC’. His target was thus
political, not parliamentary.
[21]
The Chairperson’s interpretation of the standing order cannot
withstand constitutional scrutiny. The implication of that
interpretation is that any criticism made against the government is
also criticism against individual Members of Parliament who
are
members of the ANC (or at least the national executive). It means
that Members of Parliament may no longer freely accuse the
government
of any improper conduct. On the Chairperson’s interpretation of
the standing order, criticism of government would
always constitute
criticism of Members of Parliament (and/or the Executive). Such an
interpretation serves censorship, not free
expression. But even if
one were to assume that Mr Malema’s words did target the ANC
caucus, there was no imputation of improper
motives or the casting of
personal aspersions on the integrity of members. Rather it was the
Chairperson who chose to put a gloss
on Mr Malema’s words, when
she attributed the following to him – that the government
‘deliberately decided to
massacre the people of Marikana’.
She further misconstrued his statement as accusing ANC
parliamentarians of murder. However,
that is not what he said. The
ordinary meaning given to his words – heard in context by a
reasonable person – is that
the ANC-led government is
vicariously liable for the conduct of the police. Mr Malema’s
words cannot sensibly be interpreted
to mean that the ANC government
planned to kill mineworkers. Nor can they be sensibly interpreted to
be a reference to any particular
person in government or for that
matter any individual member (or class of members) of Parliament.
[22]
Sensibly interpreted, Mr Malema’s words constituted legitimate
criticism of the conduct of the police at Marikana. The
police fall
under the authority of the ANC-led government. If that criticism
reverberated to ANC parliamentarians, it did so because
they are
members of the ANC, not because they are Members of Parliament. By
equating ‘the ANC’ and ‘the ANC government’
with ANC parliamentarians, the Chairperson misconstrued her powers
under the standing order. The purpose of her powers under the
standing order is to ensure that parliamentary debates are not marred
by personal insults directed at members (either individually
or
collectively). Mr Malema did not name an individual member or a
collective group of members. Nor did he cross the bounds of
legitimate, if robust, political speech. The Chairperson’s
decisions were thus not rationally related to the purpose of the
standing order.
[23]
But even if Mr Malema’s words targeted Members of Parliament,
they were protected by s 58(1) of the Constitution. While
Parliament
may be empowered to make rules, its rules must be interpreted in
conformity with the crucial guarantee of freedom of
speech in
Parliament afforded by s 58(1) of the Constitution.
[11]
That right is a necessary incident of representative government in a
democratic society.
[12]
To once again
borrow from
Masondo
(para 43):
‘
The
open and deliberative nature of the process goes further than
providing a dignified and meaningful role for all participants.
It is
calculated to produce better outcomes through subjecting laws and
governmental action to the test of critical debate, rather
than
basing them on unilateral decision-making. It should be
underlined that the responsibility for serious and meaningful
deliberation and decision-making rests not only on the majority, but
on minority groups as well. In the end, the endeavours
of both
majority and minority parties should be directed not towards
exercising (or blocking the exercise) of power for its own
sake, but
at achieving a just society where, in the words of the Preamble,
“South Africa belongs to all who live in it”’.
[24]
Moreover, s 39(2) of the Constitution requires an interpretation of
the standing order that promotes the spirit, purport, and
objects of
the Constitution. Whatever the standing order means, it cannot be
interpreted to prohibit criticism of the government
and other species
of political speech. That interpretation would be inconsistent with
the plain language of the standing order,
its purpose, and s 58(1) of
the Constitution.
For,
as it was put in
De
Lille
(para 20):
‘
[Freedom
of speech in the Assembly] is a crucial guarantee. The threat
that a member of the Assembly may be suspended for
something said in
the Assembly inhibits freedom of expression in the Assembly and must
therefore adversely impact on that guarantee.’
[25]
It follows that even if Mr Malema had directed criticism at members
of parliament, the standing order still did not find application
because his words were constitutionally protected political speech.
He engaged in robust criticism of government conduct. His words
fell
in the heartland of political speech, and were therefore protected by
section 58(1) of the Constitution. For democracy to
flourish, free
speech cannot be stifled. Free speech, in parliament, lies at the
heart of parliamentary processes. The standing
orders cannot be
interpreted so as to nullify free speech. The interpretation advanced
by the Chairperson has that exact consequence.
Recently in
DA
v Speaker of the NA
paras 11 and 17,
the Constitutional Court emphasized that
free
speech operates as a bulwark against tyranny. It stated:
‘
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.’
[26] Lastly, the Chairperson
attempts to shift the focus of this appeal to Mr Malema’s
alleged contempt for her authority.
Once she had made a ruling, so
her argument goes, he was not entitled to disobey it.
But
it does not follow from this that the Chairperson necessarily had the
constitutional authority to suspend Mr Malema from the
proceedings in
the circumstances in which she did. It is clear that he was not
suspended because his behaviour was obstructing
or disrupting or
unreasonably impeding the management of orderly business within the
House, but rather as some kind of punishment
for simply making a
speech (which did not obstruct or disrupt the proceedings in the
House at the time), but was nevertheless considered
objectionable and
unjustified by others, particularly, so it would seem, members of the
majority party.
[13]
It is important to emphasise that the former kind of suspension is
a necessary protective measure, the latter not.
[14]
When Mr Malema refused to withdraw his statement that had been ruled
unparliamentary by the Chairperson, he did so on pain of sanction.
The sanction imposed by the Chairperson was his suspension from the
House for the rest of the day. He did – as he was obliged
to –
comply with the directive of the Chairperson that he leave the House.
In that he acted correctly for until
that
decision was set aside by a court it could not simply be ignored
(
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA) para 26).
[27]
The respondents reviewed both rulings by the Chairperson. If her
ruling on his words was unlawful and irrational, then it seems
to me,
so too must be her consequent ruling that he leave the house. In any
event, even if the appellant’s ruling on the
words used by Mr
Malema was not the ultimate reason for him being asked to leave the
House, it necessarily played a significant
role in that outcome. If,
as has been shown, it was bad, then her consequent ruling that he be
suspended from the house likewise
falls to be impugned. In this
regard it is important to emphasise, as
Madlanga
J did in
DA v Speaker of the
NA
para
44, that:
‘
It
cannot be all conduct that annoys and tests the patience of the
presiding officer and some in Parliament that amounts to
interference or disruption. Robustness, heatedness and standing
one’s ground inhere in the nature of parliamentary
debate.
To warrant removal from the Chamber, interference or disruption must
go beyond what is the natural consequence of
robust debate.
Otherwise the very idea of parliamentary free speech may be eroded.
In the heat of a debate one must
expect that – from time to
time – a member’s contributions will not come to a
screeching, mechanical halt once
the presiding officer has ruled that
the member desist from further debate on a subject.’
[28]
To sum up: First, the Chairperson’s case rests on a false
equivalence between ‘government’ and members of
Parliament. However, they are not the same – criticism of
government is not criticism of members of Parliament. The standing
order only applies when speech targets Members of Parliament. Mr
Malema’s speech did not. That, in and of itself ought to
dispose of the appeal. But, second, even if the linguistic leap
contended for by the Chairperson is taken, namely that Members
of
Parliament were implicated, Mr Malema’s speech is protected
political speech. On a constitutionally compliant interpretation
of
the standing order, it was thus inapplicable to his legitimate, if
robust, criticism of the government. That too is dispositive
of the
appeal. It follows that the appeal must fail and it accordingly falls
to be dismissed with costs including those consequent
upon the
employment of two counsel.
[29]
One further aspect remains: Leave to appeal was granted by the high
court on 2 June 2015. On 2 July 2015 the notice of appeal
was filed
by the Chairperson’s attorney with the registrar of this court
in terms of
SCA rule 7(1)
(a).
On 30
September 2015
and
in terms of SCA rule 8(1) the record of appeal was lodged with this
court. An accompanying letter from the attorney for the
appellant
read: ‘. . .
Kindly
note that the record was served on Godla & Partners [attorneys
for respondents] in Cape Town. . . We confirm that at
this point in
time the respondents’ Cape Town correspondent did not appoint a
Bloemfontein correspondent to accept all pleadings
on their behalf.’
On 19 October 2015 the Chairperson’s heads of argument was
served and filed.
In
terms of SCA rule 10(1)
(b)
the
respondents’ heads of argument had to be filed within one month
from receipt of the appellant’s heads of argument,
being 11
December 2015. That did not happen.
On
10 February 2016 the attorney for the Chairperson addressed the
following letter to the registrar of this Court: ‘The
respondents have not complied with the rules in that they have not
filed their heads of argument despite numerous requests from
our
offices. Can you please allocate a date for the hearing of this
matter?’
On
21 March 2016, the registrar served a notice of set down on both
parties.
On 14
April 2016, the registrar wrote to Mr Godla: ‘
Kindly
confirm if your client abides by the Ruling of this Court since there
are no heads of argument filed by yourselves, nor have
you appointed
a correspondent in this matter. The case is set down but you do not
respond. I telephoned your office but no one
answers the phone.
Kindly contact me to indicate what your client’s position is.’
When that failed to elicit a response,
the registrar once again wrote
on 19 April 2016 ‘I
have not heard anything from you. Your response is eagerly awaited.’
Only then did Mr Godla reply:
‘
I
have received communication from your goodself and wish to
acknowledge same. I have seen the attachment of Notice of Set Down.
I
have discussed the date with my counsel and he is not available on
the 6th May 2016. In the circumstances kindly assist with
an
alternative date or if it is possible with you I can get the dates of
my counsel and forward same to you in order for you to
determine the
convenient date for all the parties. Kindly indicate if this is
acceptable to you.’ The next day the registrar
wrote: ‘
You
have been notified of the notice of set down on 21 March 2016 by
email already. I have sent the notice again on 14 April 2016.The
matter has been set down and will proceed. You have neither appointed
a correspondent firm in Bloemfontein as per requirement of
the Rules,
nor have you filed heads of argument and you are far out of time. If
you still want to participate in this appeal, you
will have to file
without delay together with an application for condonation. If a case
is set down for hearing of an appeal in
this court, the parties must
arrange themselves accordingly. If your counsel is not available, you
should consider to appoint alternative
counsel. Unless you can agree
with the opposition for a postponement with an agreement as far as
costs are concerned the case will
not be postponed.’
Eventually
after 4 pm on 4 May 2016 we were furnished with electronic copies of
the respondents’ heads of argument and a practice
note. An
application for condonation followed the next day. The explanation
tendered by Mr Godla for his failure to comply with
the rules of this
court is woefully inadequate. In short it amounts to him stating that
he did nothing because he did not appreciate
that anything had to be
done. This court has repeatedly admonished attorneys who purport to
practice in this court for their failure
to familiarise themselves
with and comply with its rules.
[15]
Although the application for condonation was initially opposed, at
the hearing of the appeal Counsel for the Chairperson did not
persist
in the opposition. We accordingly granted the condonation sought and
intimated then that an appropriate order for the costs
of the
application would be incorporated in the court’s order. In his
affidavit Mr Godla tendered costs on behalf of the
respondents. In my
view there can however be no warrant for the respondents to be
mulcted with these costs. As Mr Godla accepts
that: ‘
The
delay in filing the respondents’ heads of argument was my
mistake’, he should be saddled with these costs. And given
what
can only be described as a flagrant disregard for the rules of this
court, any costs order that issues has to be on the punitive
scale.
Indeed Counsel for the respondents was constrained to concede that
such an order would be just and appropriate in the circumstances
of
this case.
[30]
In the result:
(1)
Subject to para (2) below, the appeal is dismissed with costs, such
costs to include those consequent upon the employment of
two counsel.
(2)
The costs of the application for condonation in respect of the
respondents’ failure to timeously serve and file their
heads of
argument shall be paid by their attorney, Mr Godla,
de
bonis propriis
on
the attorney and own client scale.
V M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellant: J C Heunis SC (with him N Mayosi)
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
Respondents: T Ngcukaitobi (with him J Mitchell)
Instructed
by: Godla & Partners Inc, Cape Town
[1]
The conference resulted in the reversal of the conviction in 1629 of
Sir John Eliot and others:
‘No man can doubt,’ they said, ‘but
whatever is once enacted is lawful; but nothing can come into an Act
of
Parliament, but it must first be affirmed or propounded by
somebody: so that if the Act can wrong nobody, no more can the first
propounding. The members must be as free as the houses; an Act of
Parliament cannot disturb the state; therefore the debate that
tends
to it cannot; for it must be propounded and debated before it can be
enacted.’ See Lord Campion & T G B Cocks
(eds)
Sir
Thomas Erskine May’s Treaties on the Law, Privileges
Proceedings and usage of Parliament
15 ed (1950) at 46.
[2]
In Campion & Cocks (eds)
Sir Thomas Erskine May’s
Treaties on the Law, Privileges Proceedings and usage of Parliament
15 ed (1950), chapter IV on ‘Privilege of freedom of speech’
the following relevant parts appear on the necessity
of freedom of
speech in Parliament at 46-52:
‘
NECESSITY OF FREEDOM OF SPEECH
“There could be no assured government by the
people, or any part of the people, unless their representatives had
unquestioned
possession of this privilege. Thus only the House of
Commons was concerned in its vindication, and only in its connection
with
that House could it be a matter of constitutional importance.
The Lords, of course, possess the right equally with the Commons,
and thus it is considered one of the common privileges of
Parliament. But it seems never to have been an issue with the Lords”
(White, Eng. Const., p. 440). As Stubbs says, “he would have
been a bold king indeed who had attempted to stop discussion
in the
House of Lords” (Stubbs Const. Hist., III (4th ed.) 507).”’
[3]
Malema & another v Chairman National
Council of Provinces & another
2015
(4) SA 145
(WCC) para 62.
[4]
Ibid para 63.
(My emphasis.)
[5]
Section 57 provides:
‘
(1) The National Assembly
may—
(a)
determine and control its internal
arrangements, proceedings and procedures; and
(b)
make rules and orders concerning its
business, with due regard to representative and participatory
democracy, accountability,
transparency and public involvement.
(2)
The rules and orders of the National Assembly must provide for—
(a)
the establishment, composition,
powers, functions, procedures and duration of its committees;
(b)
the participation in the proceedings
of the Assembly and its committees of minority parties represented
in the Assembly, in a
manner consistent with democracy.’
The equivalent constitutional provision
applicable to the National Council of Provinces is section 70.
[6]
Section 58(1) provides:
‘Cabinet Members, Deputy Ministers and
Members of the National Assembly—
(a)
have freedom of speech in the Assembly
and in its committees, subject to its rules and orders; and
(b)
are not liable to civil or criminal
proceedings, arrest, imprisonment or damages for—
(i) anything that they have said in, produced
before or submitted to the Assembly or any of its committees; or
(ii) anything revealed as a result of anything that
they have said in, produced before or submitted to the Assembly or
any of
its committees.’
[7]
This was stated in the context of
municipalities, but it is of equal relevance to Parliament.
[8]
Democratic Alliance v President of the Republic of South Africa
[2012] ZACC 24
;
2013 (1) SA 248
(CC) para 44;
Economic
Freedom Fighters v Speaker of the National Assembly & others;
Democratic Alliance v Speaker of the National Assembly
& others
[2016] ZACC 11
(
EFF
v Speaker of the NA
)
para 98
(the Constitutional Court was rightly unconcerned about the
separation of powers when finding that the President’s
failure
to comply with the Public Protector’s remedial action was
unconstitutional).
[9]
Affordable Medicines Trust & others v
Minister of Health of RSA & another
[2005]
ZACC 3
; 2006 (3) SA 247 (CC) paras 48, 49, 75-77;
International Trade Administration Commission v SCAW South
Africa (Pty) Ltd
[2010] ZACC 6
;
2012 (4) SA 618
(CC) paras
92-93; and most recently
EFF
v Speaker
of the NA
paras 43 and 45
. See
also I Mahomed ‘The role of the judiciary in a constitutional
State’ (1998) 115
SALJ
111.
[10]
Speaker of the National Assembly v De Lille
[1999]
ZASCA 50
;
1999 (4) SA 863
(SCA) (
De Lille
) para 29.
[11]
De Lille
paras 20 and 29.
[12]
Ibid para 29.
[13]
Interference and disruption that may be sufficient for the removal
of a member must be of a nature that hamstrings and incapacitates
Parliament from conducting its business (
Democratic
Alliance v Speaker of the National Assembly & others
[2016]
ZACC 8
para 45).
[14]
De Lille
para 17 relying on the Privy Council decision in
Kielley v Carson & others
[1842] EngR 838
;
(1841-1842) 4 Moo PC 63
;
13 ER
255
(PC)
.
[15]
Government of the Republic of South Africa v Maskam
Boukontrakteurs (Edms) Bpk
1984 (1) SA 680
(A) at 692H-693A,
where Corbett JA held for the unanimous court that a failure on the
part of attorneys to perform duties imposed
by the rules of this
court amounts to a breach of duty of care owed by the attorney to
his client; see also
Blumenthal & another v Thomson NO &
another
[1993] ZASCA 190
;
1994 (2) SA 118
(A); and
Darries v Sheriff
Magistrate’s Court Wynberg & another
[1998] ZASCA 18
;
1998 (3) SA 34
(SCA) and the authorities cited therein. And also see
L T C Harms ‘What irritates Judges?’
Advocate
(2001) 14(3) 24-25.