IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER: 1054/2024
In the matter between:
ECONOMIC FREEDOM FIGHTERS Applicant
and
PARLIAMENT OF THE REPUBLIC OF SA First Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF
PROVINCES Third Respondent
PRESIDENT OF THE REPUBLIC OF SA Fourth Respondent
AFRICAN NATIONAL CONGRESS Fifth Respondent
DEMOCRATIC ALLIANCE Sixth Respondent
AFRICAN CHRISTIAN DEMOCRATIC PARTY Seventh Respondent
AL JAMA-AH PARTY Eight Respondent
2
AFRICAN INDEPENDENT CONGRESS Ninth Respondent
AFRICAN TRANSFORMATION MOVEMENT Tenth Respondent
CONGRESS OF THE PEOPLE Eleventh Respondent
FREEDOM FRONT PLUS Twelfth Respondent
GOOD PARTY Thirteenth Respondent
INKATHA FREEDOM PARTY Fourteenth Respondent
NATIONAL FREEDOM PARTY Fifteenth Respondent
PAN AFRICANIST CONGRESS OF AZANIA Sixteenth Respondent
UNITED DEMOCRATIC MOVEMENT Seventeenth Respondent
___________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY ON 06 FEBRUARY 2024
___________________________________________________________________
KUSEVITSKY J
Introduction
[1] This is an application brought on an urgent basis whereby the Applicant seeks
an interim interdict to restrain and interdict the First Respondent (“Parliament”), from
implementing chapters 1 to 2 B of the Joint Rules of Parliament, 6
th Edition 2023
(“the Joint Rules or the impugned rules”) which was adopted on 6 December 2023.
The Applicant seeks an order that the interim interdict operate with immediate effect
pending the outcome and final determination of Part B of the application wherein the
Applicant will seek to declare the impugned rules to be unconstitutional, unlawful and
3
of no force and effect and/or to the extent necessary, reviewing and setting aside the
impugned Joint Rules. Only the First, Second and Third Respondent’s have opposed
this application. The President has abided the decision of the court.
[2] The first issue to be disposed of is whether the Applicant has satisfied the
court that it is entitled to the relief sought on an urgent basis. It is common cause that
the Applicant is desirous of having a determination of Part A before the Opening of
Parliament and the State of the Nation Address (“SONA”), which is three business
days away. Essentially, the effect of the impugned rules would mean, as alleged by
the Applicant, that its right to inter alia exercise freedom of speech at the upcoming
SONA would be severely curtailed if the Joint Rules are not challenged.
[3] The adoption of the Joint Rules is intricately linked to the question of urgency.
I will therefore first deal with the adoption thereof. Sections 45(1), 57(1) and 70(1) of
the Constitution empowers Parliament to determine and control its internal
arrangements, proceedings and procedures, and to make rules and orders
concerning its internal business. Parliament consists of two ‘Houses’, the National
Assembly (“NA”) and the National Council of Provinces (“NCOP”).
1 Both the NA and
the NCOP participate in the legislative process in the manner set out in the
Constitution. Both Houses have rules which regulate their internal processes.2
Section 45(1) makes provision for both Houses to establish a joint rules committee to
make rules and orders concerning the joint business of the Assembly and Council
including rules and orders to determine procedures to facilitate the legislative
1 s 42(1) of the Constitution
2 s 57(1) in respect of the National Assembly and s 70(1) in respect of the NCOP
4
process including setting a time limit for completing any step in the process3; to
establish joint committees composed of representatives from both of the Assembly
and the Council to consider and report on Bills envisaged in sections 74 and 75 that
are referred to such committee4 and to regulate the business of the joint rules
committee5. The NA and NCOP Rules must provide for the participation in the
proceedings of the National Assembly and NCOP and its committees of minority
parties represented in a manner consistent with democracy.6
[4] The President and any member of the Cabinet who is not a member of the NA
may attend, and may speak in the Assembly, but may not vote
7. Cabinet members
and Deputy Ministers may attend, and may speak in the NCOP, but may not vote.8
The President may summon Parliament to an extraordinary sitting at any time to
conduct special business9 and in terms of the Powers and functions the President,
is responsible for summoning the NA, and the NCOP or Parliament to an
extraordinary sitting to conduct special business
10.
[5] Section 58 provides Privilege for Cabinet members and members of the
National Assembly and they have, subject to its rules and orders, freedom of speech
in the Assembly and are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for anything that they have said in, produced before or
submitted to the Assembly or any of its committees.
11
3 s 45 (1)(a)
4 s 45(1)(b)
5 s 45(1)(d)(i)
6 s 57(2)(b) and 70(2)(b)
7 s 54
8 s 66(1)
9 s 42(5)
10 s 84 (2)(d)
11 s 58 (1)(a), (b)(i)and (ii)
5
[6] On 12 October 2023, the National Assembly and National Council of
Provinces, Fifth session, Sixth Parliament, announced a Joint Sitting of the NA and
NCOP on Thursday, 08 February 2024 at 19:00 in order to deliver the State of the
Nation Address to Parliament. Parliament’s guide to SONA sets out the prerogatives
and objectives of SONA. I will highlight a few. SONA is called in terms of s 42(5) of
the Constitution by the President. It is a joint sitting of the two Houses of Parliament
and one of the rare occasions that bring together the three arms of the State under
one roof. SONA affords the President an opportunity to speak to the nation on the
general state of South Africa, to reflect on a wide range of political, economic and
social matters within the domestic and global contexts, to account to the nation on
the work of Government and to set out the Government’s program of action. It is also
a tradition that the President make key Government announcements during this
important joint sitting of Parliament.
[7] Key is the fact that SONA is a ceremonial sitting of the two Houses of
Parliament that is called specifically for the President to deliver his SONA; thus no
other business may be considered on this day. During the week following the SONA,
a debate of approximately two days is held on the SONA. The President is thereafter
afforded an opportunity to reply to the debate on the third day, thus closing the
debate. According to the guidelines, this is one of the major general debates of the
parliamentary year.
6
The adoption of the Joint Rules
[8] On 21 October 2016, the Sub-Committee on Review of National Assembly
Rules held a workshop to discuss amendments to the Joint Rules which arose from
the 9
th Edition of the National Assembly Rules. During the remaining months of 2016,
further meetings of the Sub-Committee took place, in which the prioritisation of the
review of the Joint Rules on Order in Public meetings and Rules of Debate were
noted. During 2017, a draft amendment to chapters 1 to 2A of the Joint Rules were
circulated to members. Draft Rule 7A dealt with the President’s Address at the
Opening of Parliament and Rule 7B dealt with the President’s State of the Nation
Address. Although draft rules 7A(3) and 7B(3) provided that no member may
interrupt the President’s address, members retained the right to interrupt the
President by raising a point of order or a question of privilege. Further meetings were
held in which the members expressed the need for the amendments to be concluded
before the end of that year; an updated report was considered by the Sub-
Committee on those amendments and members supported most clauses as were
presented.
[9] Bar one meeting in 2019, the next recoded meeting as contained in the
founding affidavit occurred on 25 April 2023 where the Joint Rules Committee met to
discuss the circumstances regarding the removal of members of Parliament during
SONA 2023. It was also noted that a second item had been added to the agenda for
discussion namely the Framework for Review of the Joint Rules. In that meeting, a
member of the Applicant is on record querying the manner in which that item was
before the Joint Rules Committee. In response, the Chairperson indicated that the
7
committee had to sit to refer the Framework to the sub-committee, that a review of
the NCOP rules was occurring and the process was being done in the same manner
as the Framework for review of Joint Rules. The Applicant in the founding affidavit
then concluded on the afore basis, that the review of the Joint Rules and ultimately
the adoption of chapters 1 to 2A of the Joint Rules was ‘deliberately designed to
target and victimise the Applicant for expressing political speech in Parliament.’
[10] On 17 November 2023, the Sub-Committee held a meeting to discuss its
report on the proposed impugned Joint Rules. Members of the Applicant did not
attend the meeting ostensibly because its Chief-whip, Mr Floyd Shivambu had been
campaigning in KwaZulu-Natal and attending to voter registration that took place on
18 – 19 November 2023. It noted that the Applicant could not re-arrange their
campaign responsibilities at short notice.
[11] The Sub-Committee also proposed that the proposed chapters be proceeded
with and finalised by the Sixth Parliament and not stand over for decision by the
incoming Seventh Parliament. The Applicant remarked that there were sentiments
that Parliament should not go into the next SONA without the impugned Joint Rules
being in place.
[12] On 1 December 2023, the Joint Rules Committee considered the Sub-
Committee’s report on the impugned rules. The Applicant stated that its members
were also not present at this meeting, since Mr Shivambu was unavailable because
he had to attend a central elections meeting, followed by a caucus meeting. On 4
December 2023, Parliament conveyed that the first report of the Joint Rules
8
Committee on the proposed amendments to chapters 1 to 2B of the Joint Rules
would be tabled in the NA and the NCOP.
[13] On 6 December 2023, the report was tabled before the National Assembly. At
this meeting, the Applicant noted its objection. A total of 297 members voted in
favour thereof and 23 members of the Applicant voted against the adoption. There
were no abstentions. On 8 December 2023, both the National Assembly and the
National Council of Provinces purportedly adopted the Joint Rules Committees
report and consequently, the impugned Joint Rules.
Urgency
[14] The Applicant contends that the Joint Rules were purportedly adopted by both
Houses on 6 December 2023 and will be applied when the President delivers his
State of the Nation Address ‘early 2024’. Surprisingly the Applicant does not specify
a date even though it knows that the upcoming SONA is scheduled to take place on
8 February 2024. The Applicant contends that it briefed its legal team on 7
December 2023, however despite the fact that various consultations were had with
its legal team, they were unable to finalise the application because ‘EFF members
and members of the legal team were closing offices.’ Compounded to this, the
majority of its counsel team were abroad for work purposes.
[15] The Respondents on the other hand contend that the urgency is self-created
given the time frames elucidated above. Instructively, it contends that in 2019, the
Sixth parliament undertook to complete the rule amendments before Parliament
9
prorogued12 in 2024; that in response to the violent actions of the Applicant during
SONA 2023, on 25 April 2023 the Joint Rules committee undertook to amend
Chapter 1 and 2 before the next SONA in February 2024 and that staff were
instructed to draft proposals and present to the Joint Sub-Committee feedback on 17
November 2023. The Joint Sub-Committee reconvened on 24 November 2023 to
consider submissions by the political parties. The Respondents contend that not only
did the Applicant choose not to participate, but at no stage did it object to these
Chapters being adopted.
[16] In argument, the Applicant denied that it had not objected to the proposed
amendments and referenced the ostensible objection by its member to the addition
of the inclusion of the proposed Framework of amendments to the agenda. This,
they argue, evidences the objection by the Applicant of its opposition to the
impugned rule amendments. In my view, this argument is unsustainable. It is clear
that the objection raised by the member of the Applicant related to the inclusion of
the item to the agenda for discussion and not an objection to the substance of the
proposed joint rule amendments. The further justification of the Applicant’s wilful non
attendance of the meetings to debate the proposed amendments of the rules is
unacceptable. The voter registration weekend during November was an invitation to
all eligible citizens of South Africa to register to vote, yet all of the political parties
with the lion-share of proportional votes deemed it important to participate in the
deliberations of the Sub-Committee. For the Applicant to suggest that its member, Mr
Shivambo was too busy to attend to these deliberations is startling. Furthermore,
seemingly the meeting of the Joint Rules Committee on 1 December 2023 was held
12 ‘discontinued a session of parliament’
10
virtually. Notably, the Applicant again chose not to participate and neither, according
to the Respondents, did they render an apology. Thus, as a consequence of its own
inaction and decision not to participate in these deliberations, it was thus no surprise
that it did not succeed in a vote against the adoption of a process in which it wilfully
and manifestly on their own volition, chose to ignore and refrained from participating
in.
[17] This application was launched on 17 January 2024. Ostensibly the members
of the Applicant had returned from holiday and their legal team was now available to
finalise this application. The matter was set down for hearing on Friday, 2 February
2024, three court days before SONA. Courts have consistently held that it is not here
at the convenience of counsel and the unavailability of a party’s chosen legal
representative is not an excuse for the late filing of an ostensibly urgent application.
This approach and attitude is indicative of an absolute disregard for the functioning
of courts and the resources available to it. Thus due to the supine conduct of the
Applicant, this court has now been put under immense pressure to deliberate on the
relief sought by it.
[18] Mr Jamie for Respondents argued that this was the third matter that had been
brought to this court on an urgent basis for adjudication. In the prior matters, the
courts, including a full bench, berated the Applicant in the manner in which that
urgent application had been brought, and its wilful non-compliance with a court
order. Those matters were struck from the roll. On the face of it, this matter falls
within that category. The urgency created is manifestly self-created. I am also
mindful of the discretion that an urgent Judge has to hear a matter. In my view, even
if it is apparent that a matter should be struck, a court should always exercise its
11
discretion given the facts, nature and importance of the matter at hand and to
exercise that discretion in favour of an applicant if the interests of justice demands
that same be heard. It goes without saying that each case should be determined on
its own facts and it is against this backdrop that I will adjudicate the merits of the
application, notwithstanding the clear deficiencies on urgency as elucidated above.
Submissions by the Applicant on the merits
[19] According to the founding affidavit, the Applicant contends that at the hearing
of Part B, it will argue that the impugned joint rules are unconstitutional. The basis for
the unconstitutionality is that the Joint Rules committee failed to apply its mind when
it adopted the impugned rules because it was not quorate during its deliberations
and therefore was incapable in law to produce a report to serve for adoption by both
Houses. Secondly, that the impugned rules have been improperly used to achieve
an ulterior political purpose. This is supported by the manner in which the impugned
rules were adopted - in a piece-meal fashion where only chapters 1 to 2A were
allegedly pushed through for adoption; and the extremely short period of time in
which the impugned rules where brought before the National Assembly and the
National Council of Provinces for adoption. It contends that the audit process for the
rules had started as far back as 2016 and that Parliament had ample time to
complete the revisions and adoption of the Joint Rules in its entirety.
[20] It argues that the impugned rules are designed to specifically target the
Applicant and its members and to prevent them from participating in Parliament. The
Applicant also believes that the impugned rules was fast-tracked in this piece-meal
fashion ‘so that the ruling party can claim an unfair advantage against the Applicant
12
in the upcoming elections”. This, it alleges is an improper political motive by the
ruling party.
[21] The other complaints essentially all amount to the contention that the
impugned rules amount to a violation of members’ free speech in Parliament. In this
regard the Applicant avers that Joint Rules 14(3) and 15(3) violates a member’s right
to free speech in Parliament. These impugned Joint Rules provide that no member
may interrupt the President either when he delivers the opening of Parliament
address or the State of the Nation Address. They argue that members retain their
right to freedom of speech when the President delivers the Opening Address and the
State of the Nation address and that ‘it is necessary for the President’s address to be
robustly engaged with’. They contend that the fact that the President is making the
address does not mean that members right to free speech in Parliament is
temporarily removed or rendered non-existent. This also means that members are
precluded from rising on a point of order. Thus the effect of this, the contention goes,
is that the impugned rules have the effect of insulating the President’s address.
Submissions by the Respondent
[22] The Respondents admit that the National Assembly Rules and the Rules of
the National Council of Provinces had to be amended on several occasions as a
result of the Applicant’s unprecedented deviations from established practice since
2014. In fact, since SONA 2015, the Applicant has, with premeditation, each year
attempted to collapse SONA by persistently raising repetitive and spurious points of
order or privilege as a means to prevent the President from addressing Parliament.
In doing so, the Applicant wilfully ignores the instructions of the Presiding Officers
13
when they attempt to maintain and re-establish order in the proceedings. The
Respondents contend that the Applicant, a party that holds just 10.7 % of seats in
the Sixth Parliament resorts to unlawful self help, seeks to subvert the rule of law
with the sole intention of collapsing sittings of Parliament, thereby preventing the
latter from fulfilling its constitutional obligations.
[23] The Respondents also listed the history of disruptions by the Applicant since
the start of the Fifth Parliament in 2014. It contended that the Applicant has a
manifest disregard for the Rules and Orders, and parliamentary conventions and
practices. They relay a 2014 news briefing in which the leader of the Applicant stated
that his party would not follow parliamentary rules ‘created by colonialist and
imperialists’. The Respondents contend, given that since 1994 there has been a
plurality of parties which represent divergent political views, debates in parliament
since the advent of democracy have often been vigorous and robust, but prior to
2014, sittings have never been violent, or the authority of the Chair disrespected and
ignored.
[24] They contend that while the Applicant chose not to attend the meeting of 17
November 2023, pursuant thereto copies of proposed draft and amendments of
Chapter 1 to 2 B were circulated to all members of the Joint Sub-Committee on
Review of Joint Rules. The said email informed the members the following:
“During the meeting of the Subcommittee on Friday, members made certain
proposals/requests for consideration by the secretariat. Following a meeting of officials, the
affected rules were phrased as follows:
1. Joint Rule 2(1): Unforseen eventualities: The Speaker and the Chairperson [of the
Council], acting jointly, may give a ruling or make a ruling in respect of any [matter]
eventuality for which the Joint Rules do not provide.
14
We have retained the original sub-rule, as requested by members.
2. Joint Rule 7A: Opening of Parliament: Joint Rule 7A was added back, as requested by
members, to distinguish the Opening of Parliament after an election from the President’s
annual State of nation Address at the beginning of an annual session. It reads as follows:
(1) At the commencement of the first session of a Parliament after its election, the
President may deliver an Opening Address at a date and time to be determined by
the Speaker and the Chairperson in accordance with Joint Rule 9.
(2) The Speaker and the Chairperson must publish the Opening Address in the Minutes
of Proceedings and place it on the Order Paper for debate.
(3) No member may interrupt the President whilst delivering the opening of Parliament
address.
3. Joint Rule 7B3: The section now reads: “No member may interrupt the President whilst
delivering the State of the nation Address”.
We have removed reference to a point of order or a point of privilege to accommodate
members’ concerns. (Note that the same wording has been included for Joint Rule
7A(3).
Please find attached revised proposals.”
The basis for an interim interdict
[25] Ordinarily, an applicant need to satisfy a court that it has a prima facie right,
namely prima facie proof of facts that establish the existence of a right in terms of
substantive law; that it has a well-grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is eventually granted; that the
balance of convenience favours the granting of an interim interdict and that the
applicant has no other satisfactory remedy.
[26] The Constitutional Court in Economic Freedom Fighters v Gordhan and
Others 2020 (6) SA 325 (CC)
13 referring to OUTA14 raised the issue of whether the
13 Gordhan at para 37
14 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (11) BCLR
1148 (CC)
15
grant of an interim interdict impermissibly trenched upon the constitutional precept of
separation of powers.
[27] Furthermore, that court established in OUTA that when granting an interim
interdict against a state entity and, in effect, restraining the use of public power,
courts should adroitly 'consider the probable impact of the restraining order on the
constitutional and statutory powers and duties of the state functionary or organ of
state against which the interim order is sought. The court also restated that the
interim interdict test, as set out in OUTA, enjoins a court before granting an interdict
against an organ of state to ensure that the order 'promotes the objects, spirit and
purport of the Constitution'. This invariably attracts various constitutional issues into
adjudication, including possible issues regarding separation of powers, the
constitutional duties of the parties that may be frustrated by the order and any
constitutional rights implicated in the matter.
15
[28] It is also accepted that before a court may grant an interim interdict, it must be
satisfied that the applicant for an interdict has good prospects of success in the main
review. The claim for review must be based on strong grounds which are likely to
succeed. This requires the court adjudicating the interdict application to peek into the
grounds of review raised in the main review application and assess their strength. It
is only if a court is convinced that the review is likely to succeed that it may
appropriately grant the interdict. The rationale is that an interdict which prevents a
functionary from exercising public power conferred on it impacts on the separation of
powers and should therefore only be granted in exceptional circumstances.
16
15 Gordhan at para 40
16 Ibid at para 42
16
[29] That court further held that:
“[47] An interim interdict is a temporary order that aims to protect the rights of an
applicant, pending the outcome of a main application or action. It attempts to preserve or
restore the status quo until a final decision relating to the rights of the parties can be
made by the review court in the main application. As a result, it is not a final
determination of the rights of the parties. It bears stressing that the grant of an interim
interdict does not, and should not, affect the review court's decision when making its final
decision and should not have an effect on the determination of the rights in the main
application. The purpose of an interdict is to provide an applicant with adequate and
effective temporary relief.
[48] We were cautioned by this court in OUTA that, where legislative or executive power
will be transgressed and thwarted by an interim interdict, an interim interdict should only
be granted in the clearest of cases and after careful consideration of the possible harm to
the separation of powers principle. Essentially, a court must carefully scrutinize whether
granting an interdict will disrupt executive or legislative functions, thus implicating the
separation and distribution of power as envisaged by law. In that instance, an interim
interdict would only be granted in exceptional cases in which a strong case for that relief
has been made out.” (Footnotes omitted.) (“Own emphasis”)
[30] In Glenister v President of the Republic of South Africa and Others 2009 (1)
SA 287 (CC), the court held as follows:
“[19] The applicant submits that 'it is a necessary component of the doctrine of separation
of powers that the courts have a constitutional obligation to ensure that the executive
acts within the boundaries of legality'. The applicant relied on the following statement of
Ngcobo J speaking for the majority of this court in Doctors for Life:
Courts have traditionally resisted intrusions into the internal procedures of other
branches of government. They have done this out of comity and, in particular, out of
respect for the principle of separation of powers. But at the same time they have
claimed the right as well as the duty to intervene in order to prevent the violation of
the Constitution. To reconcile their judicial role to uphold the Constitution, on the one
hand, and the need to respect the other branches of government, on the other hand,
Courts have developed a 'settled practice' or general rule of jurisdiction that governs
judicial intervention in the legislative process.
The basic position appears to be that, as a general matter, where the flaw in the law-
making process will result in the resulting law being invalid, Courts take the view that
the appropriate time to intervene is after the completion of the legislative process.
The appropriate remedy is to have the resulting law declared invalid. However, there
are exceptions to this judicially developed rule or 'settled practice'. Where immediate
intervention is called for in order to prevent the violation of the Constitution and the
rule of law, courts will intervene and grant immediate relief. But intervention will occur
in exceptional cases, such as where an aggrieved person cannot be afforded
substantial relief once the process is completed because the underlying conduct
17
would have achieved its object.” (Footnotes omitted.)
[31] It furthermore noted:
“[33] In our constitutional democracy, the courts are the ultimate guardians of the
Constitution. They not only have the right to intervene in order to prevent the violation of
the Constitution, they also have the duty to do so. It is in the performance of this role that
courts are more likely to confront the question of whether to venture into the domain of
other branches of government and the extent of such intervention. It is a necessary
component of the doctrine of separation of powers that courts have a constitutional
obligation to ensure that the exercise of power by other branches of government occurs
within constitutional bounds. But even in these circumstances, courts must observe the
limits of their powers.
[32] In Doctors for Life17 the court made these points:
The constitutional principle of separation of powers requires that other branches
of government refrain from interfering in parliamentary proceedings. This principle
is not simply an abstract notion; it is reflected in the very structure of our
government. The structure of the provisions entrusting and separating powers
between the legislative, executive and judicial branches reflects the concept of
separation of powers. The principle 'has important consequences for the way in
which and the institutions by which power can be exercised'. Courts must be
conscious of the vital limits on judicial authority and the Constitution's design to
leave certain matters to other branches of government. They too must observe
the constitutional limits of their authority. This means that the Judiciary should not
interfere in the processes of other branches of government unless to do so is
mandated by the Constitution.
But under our constitutional democracy, the Constitution is the supreme law. It is
binding on all branches of government and no less on Parliament. When it
exercises its legislative authority, Parliament 'must act in accordance with, and
within the limits of, the Constitution', and the supremacy of the Constitution
requires that 'the obligations imposed by it must be fulfilled'. Courts are required
by the Constitution 'to ensure that all branches of government act within the law'
and fulfil their constitutional obligations. This court 'has been given the
responsibility of being the ultimate guardian of the Constitution and its values'.
Section 167(4)(e), in particular, entrusts this court with the power to ensure that
Parliament fulfils its constitutional obligations. This section gives meaning to the
supremacy clause, which requires that 'the obligations imposed by [the
Constitution] must be fulfilled'. It would therefore require clear language of the
Constitution to deprive this court of its jurisdiction to enforce the Constitution.
(Footnotes omitted.) (“Own emphasis”)
17 2004 (4) SA 125 (CC)
18
[33] In support for the contention that the impugned rules are a violation of
member’s free speech, the Applicant refers to impugned rules 14(3) and 15(3) which
provide that no member may interrupt the President either when he delivers the
opening of Parliament address or the State of the Nation Address. The Applicant
also complains that should this not be adhered to, members face removal from the
Chamber as provided for under Joint Rule 42. Rule 42(3) provides that a member
may be removed with the use of force, by the Serjeant-at Arms, the Usher of the
Black Rod and the Parliamentary Protection Services. The Applicant contends that
the use of force means that a member may be assaulted in the process of being
removed from the Chamber and that this violates a member’s constitutional rights to
be free from all forms of violence whether from public or private sources.
[34] The Respondents contend that the aforesaid amendments were never
conceivably contemplated that a member of parliament would ever disregard and
disrespect the decorum of Parliament. They also contend that the rules sought to be
impugned do not represent a significant departure to existing parliamentary practice
and procedure or the Rules of Parliament which existed since at least 2015. Instead,
they argue, the new rules merely codify existing parliamentary practice and
procedure. Given the time constraints, I will only highlight a few; in terms of the new
rules, no member may interrupt the President whilst delivering the State of the
Nation Address. In the old rules, members were not to interrupt the member who had
the floor, except to call attention to a point of order or a question of privilege. In terms
of the new rules, members must comply with rulings made by presiding officers and
a ruling given by a presiding officer is final. The old rule provided that a ruling from
the Chair is final and may not be challenged or questioned. For that reason, a
19
Presiding Officer may refuse to hear further points of order on a matter once a ruling
has been given, particularly in the case of a considered ruling. The new rules also
provide that Presiding officers must (a) maintain and preserve the order of and the
proper decorum in a joint sitting, and uphold the dignity and good name of
parliament; (b) ensure the strict observance of these Joint Rules. I am not in
agreement with the Applicant’s contention that it will suffer irreparable harm at SONA
where they will be at risk of being ordered to leave the chamber. Members ran that
risk of expulsion under the old and similarly under the new rules - such risk was and
is only manifest once a member disobey the rules and is asked to leave the
Chamber. Thus logic dictates that a member will only be ordered to leave the
Chamber if that member has not complied with the Rules. Logic further dictates that
if that member wilfully disobeys the Rules by refusing to leave the Chamber, then
their removal will be facilitated by the requisite controlling bodies as mentioned
supra. Thus the ostensible harm which Applicant complains of would only manifest
as a direct result of the Applicant’s own wilful actions if it chooses to ignore or not be
bound the the Joint Rules. One can hardly imagine a situation where the party who
claims an entitlement to disobey rules seeks protection in the form of an interim
interdict against the party or institution against whom such disobedience is
perpetrated.
[35] The Respondents further contend that a suspension of Chapter 1 to 2A of the
Joint Rules would leave the Presiding Officers powerless in a joint sitting to inter alia
prevent members from acting in a deliberately disruptive or grossly disorderly
manner, including by raising spurious and repeated point of order and privilege
20
intended merely to disrupt the proceedings. The balance of convenience thus does
not favour the Applicant.
[36] In Glenister v President of the Republic of South Africa and Others 2009 (1)
SA 287, the court held that intervention in the legislative process would be
appropriate only if an applicant was able to show that he would have no effective
remedy once the legislative process was complete, in other words he had to show
that the resultant harm would be material and irreversible. In casu, this is not a
legislative process in the sense that Parliament is in the process of deliberating on a
Bill where the legislative process is still underway. I can find no reason why this court
should intervene at this stage and venture into the domain of Parliament. There is
also no reason for this court in this application to usurp the powers of Parliament in
such a pre-emptive manner in which Applicant seeks this court to do.
[37] Glenister also holds that the Constitution is replete with provisions that make
plain that ordinarily a court will not interfere with the functioning of Parliament.
18 That
court also referred to Ngobo J in Doctors for Life19 who noted, without deciding with
regard to the exceptions to the principle that a court may not intervene in the
legislative process, the following at para 41:
On the one hand, it raises the question of the competence of this court to interfere with
the autonomy of Parliament to regulate its internal proceedings and, on the other, it
raises the question of the duty of this court to enforce the Constitution, in particular, to
ensure that the law-making process conforms to the Constitution
.
[38] If the application is not successful, no harm would befall the Applicant unless
it is self created. They will still have an opportunity to challenge the constitutionality
18 Glenister at para 39, 302D
19 Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC)
at paras 68-69
21
of the impugned rules. They will also have an opportunity to be more specific about
the rules challenged because as it stands now, all the rules in Chapter 1 to 2 A is
sought to be interdicted from application. However, if the application is successful, all
of the provisions under attack would have to be interdicted from implementation in
circumstances where the Applicant has failed to deal with every single rule in the
Chapter to warrant such drastic relief. That however is not all, should the interim
interdict be granted, very real harm may befall the Respondents. As already
indicated, the Respondents have indicated that the amendment of the rules were
necessitated as a result of the unprecedented violence perpetrated by the members
of the Applicant. In fact, the submission by the Respondents is that the members of
the Applicant once stormed the stage upon which the President was conducting his
Address. In any civilised democracy, the safety and protection of its President is
paramount. In fact, the court takes judicial notice that most members of Parliament
are afforded personal protection. It would therefore be an anomaly to suggest that
measures are not put in place to protect the President whilst he is addressing the
Nation. For the Applicant to suggest that the Rules protecting the integrity of the
institution of Parliament and the safety of its members trumps its right to ‘robust’
engagement with the President, is disingenuous.
[39] The Respondents finally contend that the Applicant’s resort to disruptive and
lawlessness, allegedly to hold the President accountable as they see fit, is contrary
to the rule of law and the tenets of democracy, which are the founding values of the
Constitution. I am fully in agreement with this contention.
22
[40] Curiously, the Applicant does not provide any evidence to substantiate the
claim that the amended rules were only adopted as a means to ‘target’ them. No
evidence is provided to say why it is only the Applicant that is targeted, given the
majority of other political parties would also be subject to the impugned rules. There
is also the contention that the adoption of the impugned rules is designed for an
ulterior purpose. I can see no correlation between the adoption of the amended rules
and a perceived ulterior political motive. There is also no link between the Applicant
and the impugned rules and on what basis the Applicant contends that only it, is
being targeted. Counsel for Applicant could also not refer me to any. Thus bar the
allegation, there are no facts contained in the founding papers to support the
conclusion that Applicant wishes me to make. It is also not for me to speculate. All
political parties are subject to the same Joint Rules in the respective Houses and at
Joint Sittings. The Applicant’s contention that it and only it is entitled to ‘robustly
engage with the President’, when all of the remaining political parties with the
majority of proportional votes have agreed to the amended Joint Rules as evidenced
in the correspondence, is not sustainable.
[41] Since the Parliamentary address is ceremonial in nature, attended by all three
arms of State together with inter alia local and foreign dignitaries, the Applicant in my
view cannot claim that the right to free speech has been stifled, since as I have
already stated, that all political parties have an opportunity soon thereafter to engage
and debate with the President about the content of the Speech. The SONA is
precisely that, an Address to the Nation. It is not a debate, it is not engagement, it is
not a deliberation. It is the outlining of what the President envisages for the
upcoming year, its challenges and its plan to fulfil those lofty ideals. Applicant and
23
the rest of the political parties are then entitled to, after a consideration of the
substance of the Address, to engage in meaningful debate thereafter in the
appropriate forum. There, political parties would then be able to fulfil their
constitutional mandate on behalf of their electorate. One can hardly imagine any
meaningful engagement with a speaker about the content of their speech whilst they
are in the process of delivering same, much less ‘robustly so’. The insistence by only
the Applicant to do so at that specific time during the President’s Address and
without knowledge of the substance of the Address creates an inescapable
conclusion that it is more about theatrics and disruption, than meaningful
engagement. Thus no irreparable harm is engaged since the Applicant has known
about this procedure since its participation in Government since 2014.
[42] Lastly, there was an attempt by the Applicant to argue that the adoption of the
impugned rules in the Sixth parliament was not competent since, as the argument
went, if an issued raised was not finalised in the Fifth Parliament, then it
subsequently lapses. The Respondents contended that this issue was not raised in
the founding papers and they were now prejudiced because had it been raised, they
would have been able to comprehensively deal with those allegations. The only
reference to this aspect is the averment by the Applicant in paragraphs 47 and 56 of
its founding affidavit that ‘It was noted that the request of the Chairperson of the Joint
Rules Committee, the Joint Sub-Committee would prioritise amendments to
Chapters 1 to 2A of the Joint Rules and that the aim would be to finalise Chapters 1
to 2A before the end of the year and the remaining chapters would be finalised
before the end of the Fifth Parliament….The Sub-Committee also proposed that
chapters 1, 2 and 2A be proceeded with and finalised by the Sixth Parliament and
24
not stand over for decision by the incoming Seventh Parliament.” I am in agreement
that it does not behove an applicant to argue at the hearing an issue that has not
been substantively placed in issue or raised as a point of dispute in their founding
papers.
[43] For all of the reasons advanced, I am of the view that the Applicant has failed
to satisfy the requirements for the relief sought. The courts have reiterated the
separation of powers and the duty and obligation for all arms of State to at all costs,
be mindful thereof, and not usurp its powers. It is also up to that organ of state to
regulate its own procedures and processes. There are therefore no exceptional
circumstances present which would allow me to breach the separation of powers
doctrine. The Applicant has also not made out a case, which it sought orally during
argument, for a suspension of the rules.
[44] In the circumstances I make the following Order:
1. The Application for an interim interdict is dismissed with costs, including the
costs of two counsel.
DS KUSEVITSKY
JUDGE OF THE HIGH COURT
25
Appearances for Applicant Adv. Kameel Premid
Adv. Faathima Mahomed
Jade Naidoo (Pupil)
Attorneys for Applicant Ian Levit Attorneys
J. Cupido
Appearances for Respondent Adv. Ismail Jamie (SC)
Adv.Mukesh Vassen
Attorneys for First to Fourth Respondent S. Karjiker
C Visagie