THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 9873/21
In the matter between:
THE ECONOMIC FREEDOM FIGHTERS First Applicant
2nd TO 24th APPLICANTS LISTED IN
ANNEXURE “A” TO
THE NOTICE OF MOTION Second to Twenty-fourth Applicants
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES Second Respondent
MINISTER OF POLICE Third Respondent
Coram: Wille, J
Heard: 15 and 16 April 2024
Supplementary Notes: 2 and 9 May 2024
Delivered: 10 June 2024
___________________________________________________________________
JUDGMENT
2
WILLE, J:
INTRODUCTION
[1] This opposed application concerns some complex legal issues. However, it is
essentially about applying the rule of law in our new constitutional democracy. While
I must accept that there are disagreements about what the rule of law means, we
can, however all, without difficulty, accept that the rule of law can be distilled into at
least eight basic principles in that laws are required to be: (a) general; (b) publicly
accessible; (c) forward -looking; (d) clear; (e) non -contradictory; (f) not impossible to
comply with; (g) stable and, (h) congruent with how officials enforce them.1
[2] Further, I need to be aware that there generally is limited liberty when
legislative power is united with executive power in a single bod y. This is so because
one may fear that the same body that makes tyrannical laws will execute them
tyrannically. More than seven years ago, certain members of the applicant s’ political
party allegedly wilfully, violently and with premeditation unlawfully disrupted certain
presidential proceedings. It is alleged that the express intention of these
parliamentary disruptions was to prevent two presidential-parliamentary speeches
from being delivered.2
[3] On both occasions, these proceedings were disrupted for inordinately long
periods. The disruptors refused to obey the instructions to desist from their
disruptive behaviour . Ultimately, the members disrupting the proceedings were
instructed to withdraw and refused. After their refusal to withdraw caused further
significant disruptions, the personnel responsible for security were instructed to
escort out those members who were disrupting proceedings and who refused to
leave.3
[4] According to the respondents, the first applicant’s parliamentary members
refused to cooperate (on both occasions), and they allegedly physically resisted their
ejectment and assaulted the personnel instructed to implement their ejectment. The
first and second respondents’ case is that they did not instruct that any members be
assaulted or harmed in any way when they were being removed and took every
1 Fuller, L.R. 1968 - “The Morality of Law” - Oxford University Press: Oxford.
2 The “State of the Nation” addresses in 2015 and 2017 (SONA). I will refer to these as the “President’s” speeches.
3 In terms of the Provincial Legislatures Act 4 of 2004 (“the Powers Act”), the Joint Rules and our Constitution.
3
reasonable measure to ensure that, when as a last resort, members were ejected by
the parliamentary personnel to restore order, they would not be physically harmed.4
[5] Firstly, the applicants sought a declarator that it was unconstitutional to order
the first applicant’s parliamentary members to be ejected. This process was styled
as including some gratuitous violence. In summary, the first applicant says that its
members were unlawfully and violently assaulte d during and after th e process of
their removal. This is against the canvass of prevailing legislation and with no frontal
attack on the validity of any parliamentary rules.5
[6] Secondly, the applicants seek what they style to be ‘ constitutional’ damages.
This relief is contingent upon the declaratory relief being granted . T he applicants
submit that their damages claims are competent in law. The respondents say this
relief is not competent, and these claims have, in any event , been prescribed due to
the effluxion of time.6
[7] About three months ago, three related applications by the first applicant about
their alleged ongoing disruptions of parliamentary sittings were dismissed. This
jurisprudence indicated , among other things, that the applicants were unlikely to
suffer irreparable harm and be at risk of being ordered to leave any parliamentary
processes if they obeyed the parliamentary rules and procedures.7
[8] It was a matter of common cause that a parliamentary member would only be
ordered to leave the ‘chamber’ if that member had not complied with the applicable
parliamentary rules. It was accepted that members ran th e risk of expulsion either
under the old or the new rules once and if a member disobeyed the rules and was
accordingly requested to leave. The applicants conceded that they do not challenge
the parliamentary rules and that this is not an issue for decision in this matter.8
[9] Further, it was not disputed that if a parliamentary member disobeyed the
rules by refusing to leave, the requisite controlling bodies on duty could facilitate their
removal following the extant rules. Thus, the removal from the parliamentary
process was not in itself unlawful. How it occurred could be unlawful. In summary,
4 The first and second respondent deny that they acted unlawfully at the 2015 SONA and the 2017 SONA sittings.
5 The EFF does not challenge either the validity of Rules or the Powers Act.
6 More than five years have elapsed, and no proceedings were instituted in the interim.
7 The parliamentary rules always govern the conduct of members of parliament.
8 No frontal challenge was made against the validity of the existing (including the amended) rules.
4
the apparent harm complain ed of would only manifest if a member of parliament
elected to ignore or not be bound by the extant parliamentary rules.9
CONTEXT
[10] This application concerns the alleged behaviour of a minority political party
attempting to disrupt a parliamentary process and collapse the sittings of a
democratically elected multi -party government . This allegedly by wilfully
disregarding the rules and rulings made by its controlling officers following
democratic prescripts and the framework rules adopted by and considered binding
on all parties involved in the parliamentary process.10
[11] The applicants ’ case hinges on a liberal interpretation of the right to free
speech to the exclusion of all limitations to that right to free speech . They say their
members have the right to free speech in absolute terms. Put another way, they say
the constitutional limitations that limit the right to free speech during parliamentary
sittings find no application. They contend that the limits imposed upon the rights of
freedom of speech by making such right s subject to rules and orders designed to
ensure that parliamentary business is conducted effectively and in an orderly and
predictable way find no application.11
[12] The first and second respondents contend that the applicants, like all other
parliamentary members, have freedom of speech during the parliamentary process
when at the podium. The applicants argue that this right of freedom of speech
includes the right to disrupt legitimate addresses and to collapse parliamentary
sittings.12
[13] The first and second respondents say that the se disruptions by the applicants
were undemocratic. They advance that the first and second applicants acted in a
manner which contravened the parliamentary rules. Thus, it is advanced that their
actions were in contempt of parliamentary authority and, as such, constituted grossly
disorderly conduct.13
[14] The first part of the relief sought by the applicants bears scrutiny. The
founding affidavit pertains to the alleged conduct of the respondents, at whose
9 It is the respondents’ case that the applicants were ejected because they disobeyed the parliamentary rules.
10 The first applicant only holds six-point five percent of the voting electoral support.
11 This references the limitations in sections 57 and 58 of our Constitution and the National Assembly Guide to Procedure.
12 The applicants say they were entitled as a matter of law to interrupt these Presidential speeches.
13 The respondents argue that they were entitled in law to remove the applicants from the “chamber.”
5
behest several of the applicants were allegedly violently and unlawfully assaulted
during their duties as legislators participating in a parliamentary joint sitting.14
CONSIDERATION
THE CAUSE OF ACTION
[15] The allegation is that the parliamentary p rotection services engaged in
excessive and unreasonable force to frustrate the applicants' fulfilment of their
parliamentary dutie s. By contrast, the first and second respondents say that the
applicants deliberately attempted to collapse the parliamentary sittings.15
[16] In addition to several other shields raised by the respondents, they aver that
the affidavits supporting the application do not set out any alleged acts of gratuitous
violence and thus do not set out a cause of action to justify such a finding in support
of the declaration contended for by the applicants.16
[17] They say this because neither the first nor the second respondent instructed
any person to be assaulted. I t is the case of the first and second respondents that
the applicants’ founding affidavits do not allege any facts to support the essence of
the claims made by the applicants.17
[18] It seems to me to be undisputed that the ejectment of the applicants was done
as a last resort and was necessitated to ensure that the parliamentary proceedings
could proceed without unnecessary interruption. Most significantly, the applicants do
not challenge the prevailing legislation or the rules. This is important because a
claim for constitutional damages should not be instituted where an effective remedy
exists at common law.18
[19] Elaborating on the facts, the applicants unnecessarily delayed the launch of
proceedings because these events occurred more than seven years ago and more
than f ive years after the alleged second parliamentary disruption. This delay
notwithstanding, the applicants do not apply for a ny species of condonation. I say
this because no factual basis or foundation is set out in the applicants’ papers for this
court to exercise discretion concerning this inordinate delay. However, it must be so
14 These duties referred to were never defined or formulated with any specificity.
15 This is in connection with the SONA 2015 and the SONA 2017. The applicants rely on section 1(d) of the Constitution.
16 The allegations of alleged violence against the applicants lacked specificity.
17 This, they say, has nothing to do with the right to freedom of speech.
18 A constitutional damages claim is not permissible simply because a claim in delict was not pursued timeously.
6
that if no explanation is given for the delay, this, as a matter of pure logic, must count
heavily against the applicants.19
[20] This is significant because t he applicants submit that if the application is
granted, they intend in the future, by pursuing the second part of their application, to
bring a constitutional claim against the respondents on behalf of the applicants . This
may be so, but this does not amend or explain the initial cause of action or why this
application was delayed.20
[21] The applicants remain steadfast in their submission that if the application is
granted, they will bring a constitutional claim against the respondents on behalf of
the applicants even though the applicants do not challenge the enacted legislation .
This legislation provides that no person shall be liable for damages for any act done
in good faith according to such legislation, under the authority, or within the scope of
the statutory powers granted.21
[22] The respondents sought refuge in this targeted enacted legislation and aver
that any claim that the applicants may have had for damages, including constitutional
damages, became prescribed after the lapse of three years. They say it matters not
how this application has been dressed up, as this does not change the initial and
only cause of action.22
[23] As a matter of law, I must agree with the respondents’ arguments in this
connection. I say this because it needs to be clarified (there is a deafening silence
from the applicants in this regard ) why the applicants first sought a declarator and
then only sought to institute a claim for damages should the declarator be granted.23
[24] I also say this because it is trite that constitutional damages may not be
claimed where a clear and effective alternative remedy for damages was readily
available to the applicants . It is difficult to discern the need to obtain a declarator
before instituting a constitutional or other claim for damages . It seems that the
declaratory relief is claimed to camouflage the true cause of action to circumvent
prescription. This must be seen against the canvass of the material before me
19 Hoexter and Penfold (Eds) Administrative Law in South Africa, (Third Edition, 2021) at page 735.
20 No plausible explanation is advanced for the inordinate delays on the part of the applicants.
21 Section 22 of the Powers Privileges and Immunities Act, 2004.
22 The cause of action matters not as the wording caters immunity for any act done in good faith
23 This could only be because the applicants sought to circumvent the Prescription Act, 68 of 1969.
7
because it tells that the applicants do not explai n, engage with or contextualize in
any manner the inordinate delays in this litigation against the respondents.24
THE DECLARATOR
[25] An application for a declarator requires a two-stage approach. The court must
satisfy itself that an applicant is a person who has an existing, future, or contingent
right or obligation. Then, if so, the court must decide whether the case is appropriate
for exercising the discretion conferred upon it. Furthermore, the court may decline to
grant a declaratory order if it regards the question raised as hypothetical, abstract, or
academic. In this context, our apex court has held that a hypothetical interest is an
interest that is expressly claimed but is neither real nor true.25
[26] A declaratory order is a discretionary remedy , and the discretion to grant a
declaratory order should not be exercised where the question raised is academic,
abstract, or hypothetical. Put another way, w here the questions raised in a matter
are wholly academic, a court should decline to grant a declaratory order.26
[27] Indeed, there are rare cases where our courts have entertained applications,
the effect of which may be moot. In these applications, the interests of justice have
demanded that the matter be heard, notwithstanding that it is moot. Some of the
factors that may determine the interests of justice include the following : (a) whether
any order a court may make will have some practical effect either on the parties or
on others; (b) the nature and extent of the practical effect that any possible order
might have either on the parties or on others ; (c) the importance of the issue; (d) the
complexity of the issue; (e) the fullness or otherwise of the arguments advanced, and
(f) if the decision would resolve disputes between different court s. I needed more
persuasion to understand how a declarator would advance the matt er or have any
practical effect on the litigation.27
[28] I say this primarily because the academic nature of the relief sought by the
declarator becomes apparent considering the following: (a) the constitutional
damages claim is prohibited in terms of the enacted immunity legislation; (b) any
claim for damages, constitutional or otherwise , has prescribed due to the effluxion of
24 The delays seem to be wished away because of the constitutional nature of the declarator sought by the applicants.
25 Giant Concerts CC v Rinaldo Investments (Pty) Ltd & others 2013 (3) BCLR 251 (CC) at para 51.
26 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1996 (12) BCLR 1599 (CC).
27 The applicants at all material times had the common law remedy for a claim in delict.
8
time and, (c) the applicants have failed to give the required statutory notice to
institute their claims against the respondents.28
LIMITATION OF LIABILITY
[29] This targeted legislation excludes liability for all damages, and the exclusion's
breadth necessarily limits liability for constitutional damages. The applicants were
driven to concede that the common law of delict would have provided them with an
effective remedy but for the effect of the provisions of this targeted legislation.29
[30] The applicants contend that this targeted legislation excludes only the liability
for damages in the common law of delict. They must say so because they want their
claim for constitutional damages to be viable. However, this is an improper
approach to objective interpretation and shows no regard for the express statutory
language.30
[31] I say this because this approach would undermine the very purpose of the
legislation to render immune any person who acts under parliamentary authority in
good faith for the autonomous and effective functioning of that arm of the state. Put
another way, i nterpreting this in any other way would not be a sensible and
purposive construction.31
[32] The applicants accept that the law of delict would have provided them with an
effective remedy but for the effect of this targeted legislation. The wording of the
section in the targeted legislation is unambiguous. It provides, among other things,
as follows
‘….No person is liable for damages or otherwise for any act done in good faith in
terms of this Act, or under the authority of a House or committee and within the legal
powers of the House or committee, or under any order or summons issued by virtue
of those powers…’32
[33] The applicants say that by dressing up their claims against the respondents
formulated as constitutional damages, this section finds no application. I disagree.
The place where the alleged harm occurred does not chameleonically change the
28 Section 3 (1) and 3 (2) of the Legal Proceedings Against Certain Organs of State Act, 40 of 2002.
29 Section 22 of the Powers Privileges and Immunities Act, 2004 (“The Powers Act”).
30 The wording of the section refers explicitly to damages or otherwise for any act done in good faith.
31 Chisuse v Director-General Department of Home Affairs 2020 (6) SA 14 (CC) at paras 47-58.
32 Section 22 of the Powers Privileges and Immunities Act, 2004
9
cause of action against the respondents and morph the applicants’ cause of action
into a constitutional cause of action. The conduct complained of is gratuitous
violence, and by its very nature, this alleged conduct is a delict in our common law.33
PRESCRIPTION
[34] Further, it was argued that the applicants could not be granted condonation
for the late filing of their application in these circumstances, even if they had applied
for condonation. They did not. As a matter of pure logic, this must be so because if
a debt becomes extinguished by prescriptio n, condonation cannot generally be
granted. No purpose would be served by granting condonation regarding a debt that
no longer exists and cannot be enforced. The purpose cannot be to revive debts
already euthanized and prescribed due to the effluxion of time.34
[35] The issue for consideration is whether a claim for constitutional damages
constitutes a debt. In this case, the alleged violation of constitutional rights would
entail the commission of a delict if proven. The word ‘ debt’ should be given its
ordinary grammatical meaning, which is, among other things:
‘…a liability or obligation to pay or render something - the condition of being
obligated…’35
[36] The applicants’ claims are for compensation sounding in money and must be
included in the meaning of the word debt. Also, it would not be legally permissible to
escape the legislative provisions of prescription by merely formulating a claim under
the umbrella of constitutional damages when the claim has all the features of a claim
in the law of delict sounding in money.36
[37] The definition of a debt includes explicitly a claim for any liability for which an
organ of the state is liable for payment of damage s. The applicants’ shield to this is
that prescription does not apply as the damages sought against the respondents do
not amount to a debt that would be prescribed. They say this because the initial part
of their application is only to seek a declarator. The argument is that this is not an
obligation to pay money, deliver goods, or render services.37
33 There is nothing extraordinary about the applicant’s alleged “gratuitous violence” claims.
34 Premier of the Western Cape Provincial Government v BL [2012] 1 All SA 465 (SCA), at paras 4 and 15.
35 Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) at 344E-G.
36 No distinguishing features of the cause of action contended for were advanced by the applicants.
37 The applicants attempt in some way to rely on section 39(2) of the Constitution of the Republic of South Africa, 1996.
10
[38] I remain unpersuaded as our apex court has decided on what comprises a
debt in circumstances such as these. I say this because it has even been confirmed
that a claim to transfer immovable property in the name of another amounts to
debt.38
CONSTITUTIONAL DAMAGES
[39] By labelling their claims as one s for constitutional damages, the applicants
seek to circumvent the effect of prescription on their claims. The applicant’s case is
that their constitutional damages claim is the appropriate claim for their relief.
However, as I understand our jurisprudence, considering all alternatives, it must be
the most appropriate relief.39
[40] The rights the applicants seek to protect are adequately provided for in delict.
The common law is a powerful vindication of those constitutional rights. This must
be so because our constitution is primary, while its influence is indirect because it is
perceived through its effects on the legislation and the common law.40
[41] Put another way, the common law of delict is broad enough to offer
appropriate relief for breach of those constitutional rights contended for by the
applicants. Where the common law gives effect to constitutional rights and offers
remedies for their protection, the proper course is to use the common law to enforce
those rights.41
[42] Thus, in this case, the a pplicants’ difficulty is not that the law of delict is
insufficiently protective but rather that the statutory law on prescription and the
limitation of liability for acts done under the parliamentary authority preclude a claim
in delict. But even if prescription did not apply to a claim for constitutional damages,
it would not be just and equitable for the applicants’ failures to support an argument
that constitutional damages are the most appropriate relief in the circumstances.42
[43] This is so because o ur courts have repeatedly confirmed that constitutional
damages would only be awarded where the existing law, including the development
of the common law , is inadequate to vindicate a violation of or threat against a
citizen's rights. It must be so that constitutional damages do not constitute an
38 Ethekwini Municipality v Mounthaven (Pty) Ltd 2019 (4) SA 394 (CC) at para 93.
39 Residents, Industry House and Others v Minister of Police and Others 2023 (3) SA 329 (CC) at para 118.
40 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others 2023 (4) SA 325 (CC) at para 233.
41 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
42 Their claim in delict prescribed and is excluded by section 22 of the Powers Act.
11
alternative means of appropriate relief where a claim in delict could more than have
adequately compensate d the applicants and where that relief itself is a n
extraordinarily effective and powerful vindication of any constitutional rights that may
be in question.43
[44] Put another way, where a common law remedy exists , a claimant must first
have recourse to that remedy as a matter of pure logic . I say this because, in most
cases, our common law is broad enough to provide all the appropriate remedies for a
constitutional right violation. An award for c onstitutional damages is not available
where there is no evidence to prove that such damages would serve as a significant
deterrent against an individual or systemic repetition of the infringement in
question.44
[45] Most significantly, in support of the declaratory relief sought by the applicants,
they contend that due to the first and second respondents ’ orders to remove
applicants from the parliamentary processes, the beatings of the applicants followed
as a fact. The applicants say that using unbridled forc e against them at the
instruction of the first and second respondents was to frustrate the execution of their
duties as members of parliament and was thus unconstitutional and unlawful.45
[46] That being said, the papers before me did not contain the facts supporting the
conclusions the applicants desire d the court to draw . Thus, it is difficult, if not
impossible, to discern (let alone decide) from the material before me how the first
and second respondents instructed or directed members of the parliament ary
protection services and/or the third respondent’s members to perform the alleged
assaults that form the subject matter of the declaratory relief order sought by the
applicants.46
THE RULES
[47] The relevant joint rule now indicates that if the presiding officer believes that a
member is deliberately contravening a provision of these rules, or that a member is
in contempt of or is disregarding the authority of the chair, or that a member’s
conduct is grossly disorderly, he or she may order the member to withdraw
43 Fose v Minister of Safety and Security, 1997 (3) SA 786 (CC).
44 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
45 This allegation is not borne out by the papers and is in any event disputed.
46 These disputes could not be resolved on motion into the benefit of the applicants.
12
immediately for the remainder of the sitting. Some of the applicants’ members
refused to withdraw , following valid instructions to do so during these disruptions .
They were then removed in terms of a different and discrete rule , which , among
other things, provides that if a member refuses to leave when ordered to do so by
the presiding office r, the presiding officer m ay (or must) instruct the ‘serjeant-at-
arms’ to remove the member forthwith. These rules are not the subject of any frontal
challenge by the applicants.47
[48] Suppose the ‘ serjeant-at-arms’ is unable in person to affect the member's
removal, the presiding officer may call upon the parliamentary protection services to
assist in removing the member and if the member still resists attempts to be
removed, the ‘serjeant-at-arms’ and the parliamentary protection services may use
such force as may be reasonably necessary to overcome any resistanc e so
offered.48
[49] Notably, the applicants do not challenge the constitutionality or lawfulness of
the above provisions in the rules. Thus, for this application, I must accept that these
rules applied to the applicants during these disruptions. It was also common cause
(or not materially challenged) that the applicants: (a) disregarded the authority of the
first and second respondents; (b) disregarded the order for them to withdraw from
the chamber; (c) refused to leave the chamber; and (d) the assistance of the
parliamentary protection services and the police was requested for the removal of
the applicant members from the chamber so that the parliamentary business could
continue without interruption which interruptions had by then endured for some
considerable period.49
[50] In summary, all the parliamentary rules are merely agreements between the
various political parties and their members that regulate and govern the procedures
and limitations for democratic debate, participation, and decision -making following
the rule of law . This case is, in essence, about the proper functioning of our
democracy. The respondents argue that the first applicant’s members' actions were
unlawful and unconstitutional. This is because they infringed the rights of all the
47 Joint Rule 14G read with the National Assembly Rule 73.
48 National Assembly Rule 73.
49 For the State President to deliver his State of the Nation addresses for 2015 and 2017.
13
parliamentary members and the rights of all voters in the country by attempting to
prevent them from fulfilling their constitutional obligations.50
DIGNITY AND FREEDOM
[51] The applicant s’ fallback position always seems to be that they believe
freedom of speech entitles them to ignore the parliamentary rules and the authority
of the first and second respondents. That said, it can never be so that free speech
becomes so important that it trumps entirely the nature of the parliamentary process
and its functions. I touch on but two of these many functions.51
[52] It is so that the best possible legislative outcomes are undoubtedly achieved if
the parliamentary process admits the expression of the views of all parties, including
minority parties.52
[53] In our new democracy, parliamentary members enjoy freedom of speech, but
this right cannot be absolute. It is governed and regulated by parliamentary rules
and regulations.53
[54] Thus, the applicants do not have the right to reject the authority of the first and
second respondents and the parliamentary rules. Put another way, the applicants do
not have the right to disrupt parliamentary proceedings or to resort to self-help. Such
conduct does not fall within the scope and duties of parliamentary members.54
[55] According to the foundations of our constitutional dispensation, we are all
obliged to respect and adhere to constitutional supremacy and the rule of law. In
these circumstances, it would not be legally permissible for the applicants to assert
their rights to some species of constitutional protection to excuse their conduct.55
[56] During these parliamentary disruptions, the first and second respondent s
exercise joint control and authority over the parliamentary precinct. The members of
the security services may only enter or remain in the precinct to perform any policing
function with the permission and under the authority of the first or second
respondents.56
50 The then President of South Africa was unable to deliver his presidential speeches.
51 The applicants’ pilot for an unbridled freedom of speech without any limitations.
52 Healthy and respectful debate must be encouraged.
53 Sections 58 (1) and 71(1) of the Constitution provide that members of Parliament have freedom of speech in Parliament.
54 In any event, the rules are not subject to challenge in this application.
55 The applicants were always obliged to respect the rules which govern the parliamentary process.
56 Section 3 and Section 4 of the Powers Act.
14
[57] To enable parliamentary members to carry out their constitutional functions
effectively, specific targeted legislation was enacted to provide for further privileges
and immunities for parliamentary members to protect the authority, independence
and dignity of the legislatures and their members.57
[58] Following this targeted legislation, a person who causes or participates in a
disturbance in the chamber during a parliamentary session may be arrested and
removed from the chamber on the order of the first or second respondent or a
person designated by them, a staff member, or a member of the security services.58
[59] The applicants do not complain that they were removed from the
parliamentary processes when they caused the disruptions. The alleged gratuitous
violence is the focus, not the removal itself.59
[60] Thus, the rights at issue are dignity and freedom. The alleged limitation of the
applicants’ parliamentary privileges and duty to hold the executive to account are no t
grounds on which they claim relief. The law of delict is the common law provision
that gives effect to the rights to dignity and bodily integrity. The applicants do not
dispute this, and they do not suggest that the common law is deficient or in need of
development.60
THE STATE OF THE NATION ADDRESS IN 2015
[61] The applicants made it publicly known that they intended to cause disruptions
to these parliamentary proceedings from the outset. Given the planned disruption of
proceedings and that parliamentary staff did not have the requisite training, capacity,
or skillset to remove members from these proceedings, the first and second
respondents decided to second members of the third respondent who were
specifically trained in crowd control to eject a member who refused to leave when
ordered to do so.61
[62] These members of the third respondent were instructed to act upon the
instructions of the first and second respondents under guidance from the
57 The Powers Act was enacted in terms of sections 58 (2) and 71 (2) of the Constitution.
58 Section 7(e), Section 7 (f), Section 11 and Section 13 of the Powers Act.
59 The issue is the alleged gratuitous violence. This cause of action falls squarely within our common law of delict.
60 The applicants do not make out a case of why the common law of delict is an inadequate remedy in these circumstances.
61 This was done as a preventative measure.
15
parliamentary protection services. These police members were specifically trained
to restrain and remove misbehaved persons while minimizing the risk of injury.62
[63] Within a few minutes of the first address, the applicant's members repeatedly
raised points of order to disrupt the parliamentary process. Despite repeated
requests that the proceedings not be interrupted, the applicants’ members continued
unabated. Despite all efforts to maintain order, the applicant ’s members continued to
disrupt the proceedings in a determined and dedicated effort to disrupt the
parliamentary process. When all attempts to regain control of this sitting failed,
these trouble -causing members were removed by members of the third
respondent.63
[64] Thus, it is argued that legitimate steps were taken to remove the applicants ’
members who caused these disruptions. What was telling in this unfortunate
process was that after the removal of the applicants ’ members, they publicly
announced that they had assaulted parliamentary staff and threatened to br andish
firearms in future sittings. In a direct response to this campaign of disruptions, which
was escalating in intensity, new rules were adopted, and an express provision was
made for removing a member who refused to leave when instructed to do so.64
[65] In their replying affidavits, the applicants d id not advance any facts
demonstrating that any assaults upon them ( which assaults were denied) resulted
from any instruction t o be ejected from the parliamentary sittings . By contrast, the y
publicly announced that they were the ones who intended to and did act with
violence and assaulted members of the third respondent.65
THE STATE OF THE NATION ADDRESS IN 2017
[66] Before this address, the first applicant made several media statements that it
intended to disrupt these proceedings again . Indeed, these disruptions occurred
even before the proceedings officially commenced. Despite repeated requests to
refrain from doing so , spurious points of order were raised, and these disruptions
62 These allegations were not materially engaged with by the applicants.
63 The applicants’ members do not dispute that they were causing disruptions.
64 Parliament also adopted a Standard Operating Procedure to affect such removals.
65 Thus, no case is made out regarding the State of the Nation address in 2015.
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occurred for more than an hour, unabated. A ruling was made that no further points
of order would be permitted.66
[67] Despite this ruling, the applicant's members continued to shout down these
instructions, and the leader of the first applicant was then ordered to leave. The
leader of the first applicant refused to leave. The allegation is made that it was the
members of the first applicant who assaulted the respondents’ staff by using their
hard hats. Undoubtedly, from the material before me , it is apparent that some of the
members of the first applicant indeed attacked and injured those attempting to
restore order so that these proceedings could commence. Put another way, there is
no evidence supporting the applicants’ allegations that any of the respondents
ordered the m to be injured in any manner. There was no evidence of gratuitous
violence.67
[68] Thus, there is no evidence that any gratuitous violence was used against the
applicant’s members and that their constitutional rights were violated in any way or
that the first and second respondents instructed that they be ‘unconstitutionally’
assaulted.68
THE THIRD RESPONDENT
[69] The applicants sought no relief against the third respondent. Th is respondent
advances that even if the applicants amended their notice of motion for a declaration
and damages against it , this species of relief would be legally unsustainable , and
liability could not ensue . I agree with this as a matter of law, and in any event, the
applicants do not dispute this in reply.69
[70] The applicants’ case is squarely against the alleged conduct of the staff of the
parliamentary protection services. Thus, the a pplicants do not intend to pursue any
claim against the third respondent. I find it difficult to discern why the third
respondent was joined in these proceedings.70
[71] By elaboration and for clarity (which may impact the outcome's reasoning
regarding the first and second respondents), the relief claimed in the two parts of the
application was not independent and discrete as they both rested on a finding of
66 This ruling was made by the Speaker of the House.
67 The applicants’ papers do not make out a case in this connection.
68 No case was made out for this relief on the papers.
69 No case at all was made out against the third respondent.
70 The third respondent had no direct or substantial interest in the relief sought by the applicants.
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unlawfulness in respect to the same conduct. Therefore, it was argued that the two-
part relief approach should not be artificially delinked to bolster a claim for
constitutional damages through declaratory relief. On this, I also agree.71
[72] A declaration of liability would produce no tangible result in circumstances
where the applicants are unlikely to prove a likelihood of recurrence of the alleged
harm to warrant the declaratory relief. If the applicants cannot sustain a case for
damages in delict (or constitutional damages) and seek no other consequential relief,
it would be difficult to discern how a declarator would assist the applicants’ cause. I
say this because this court is not obliged to declare the respondents’ conduct
constitutionally invalid (even if it was) as it may be appropriate and necessary to
dispose of the question using subsidiary law.72
STATUTORY NOTICE
[73] This specific legislation, as referenced above, provides in summary, among
other things, that no legal proceedings for the recovery of a debt may be instituted
against an organ of state unless the creditor has given the organ of state a notice in
writing of the intention to institute the legal proceedings in questio n. T he organ of
state may consent in writing to the institution of th ese legal proceedings without the
notice and may consent if the notice has been received but still needs to comply with
the relevant specific legislative requirements.73
[74] The obligatory prior notice must also comply with strictly imposed time limits.
If these time limits and other legislative requirements are not complied with, the party
in default may seek condonation for non -compliance. The respondents aver that the
claim for constitutional damages , as will ultimately be contended for by the
applicants, falls to be characterized as a ‘debt’ as set out in the legal proceeding’s
legislation.74
[75] Thus, it was submitted on behalf of the respondents that the applicants have
failed to comply with these mandatory notices, and their claim for constitutional
damages is now stillborn. This is because the respondents have not consented in
71 There was no legitimate basis for the two-stage approach adopted by the applicants.
72 J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) at para 15.
73 Section 3 (1) and 3 (2) of the Legal Proceedings Against Certain Organs of State Act, 40 of 2002.
74 Sections 1 (1) (iii) of the Legal Proceedings Against Certain Organs of State Act 40 of 2002.
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writing to the institution of the legal proceedings without such notice having been
given by the applicants.75
[76] I have already dealt with a portion of this argument as it was advanced in
connection with the issue of prescription and the definition of the word debt. A
similar wide definition of the word debt appears in this legislation. In summary, t he
relevant portion of this legislation provides that no legal proceedings for the recovery
of a debt may be instituted against an organ of the state unless the creditor has
given the organ of state in question notice in writing of his or her or its intention to
institute the legal proceedings in question or the organ of state in question has
consented in writing to the institution of those legal proceedings without such notice.
This notice must be given within six months from the date the debt became due and
be served on the organ of the state. T his notice also must comply with certain
informative requirements.76
[77] It seems that on the papers presented before me, the applicants have not
adequately engaged with or given a judicially acceptable reason why they did not
comply with this legislation and the reason why they did not give this statutory notice,
which would have been a relatively simple exercise by their legal representatives.77
CONCLUSION AND COSTS
[78] The respondents seek a punitive costs order against the applicants. They say
this application was fatally flawed . Further, they allege that several unfounded
serious claims and allegations were made against them . In addition, they say the
application was unjustified, vexatious, impermissibly delayed and moot . They say a
punitive costs order is warranted.78
[79] The app licants submit that more emphasis must be placed on th is
application's constitutional character. They say this because these proceedings
essentially sought to vindicate fundamental rights in connection with certain alleged
unlawful actions by the respondents . The following legal principles, which are found
in our jurisprudence, apply when dealing with matters that truly have constitutional
ingredients. The principals dictate whether the matter has a constitutional ingredient
75 The applicants were obliged to give the respondents written notice within six months from when the debt became due.
76 This notice was not given to the respondents in any form, and no consent was granted at the instance of the respondents.
77 No reasons were advanced why this statutory notice was not given to the respondents,
78 Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (11) BCLR 1310 at para 35
19
if there is a genuine, non -frivolous challenge to the constitutionality of a law or
conduct by the state. If so, it is appropriate that the state bear the costs if the
challenge is good, but if not, the losing non -state litigant should be shielded from the
costs and consequences of failure.79
[80] Further, an analysis of some of the decided authorities in dealing with
proceedings of this nature demonstrates that the more prevalent approach is that the
successful party is entitled to its costs, with the court always retaining the discretion
to make an order that seems just and equitable, considering the position of the party
against whom any such costs order is levied. At the end of the day, several factors
must be considered when a cost award is issued in such circumstances . The
applicants’ cause of action should have been in the common law of delict. However,
without further evidence, I am not satisfied that a punitive costs order should be
granted. In my view, a contextual approach must, of necessity, be adopted.80
[81] However, I find that the disguised and chameleonic approach of dressing up
the true cause of action was simply an attempt to circumvent several statutory
hurdles, and this application was not infused with any true constitutional
ingredients.81
[82] A new tariff of costs regime came into operation a few days before this matter
was heard, thus finding application. This new regime has no retrospective effect, but
it does mean that some of the costs incurred in this matter would have been before
the promulgation of the new rule concerning the tariff of costs.82
ORDER
[83] The following order is issued:
1. The application is dismissed.
2. The first applicant is ordered to pay the application costs.
3. The costs shall be on the scale between party and party, as taxed or agreed.
4. The costs shall include the costs of two counsel where so employed.
5. The costs of senior counsel shall be on scale C.
79 Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC).
80 A holistic approach must be adopted with a view to assess the different positions adopted by the parties.
81 The “Biowatch” principle does not find application.
82 Rule 67 A came into operation on 12 April 2024. (GN R4477 of 8 March 2024) (GG 502720 of 8 March 2024).
20
6. The costs of junior counsel shall be on scale B.
7. The costs incurred before 12 April 2024 shall be determined by the taxing
master unless otherwise agreed.
_________
E D WILLE
(CAPE TOWN)
COURT APPEARANCES:
FOR THE APPLICANTS: - K PREMHID
S MOHAMMED
FOR THE FIRST AND SECOND RESPONDENTS: - M LE ROUX SC
M VASSEN
FOR THE THIRD RESPONDENT: - E DE VILLIERS-JANSEN SC
U NAIDOO