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Speaker of National Assembly v De Lille MP and Another (297/98) [1999] ZASCA 50; [1999] 4 All SA 241 (A) (26 August 1999)

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Constitutional Law
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Brief Summary

Parliamentary Procedure — Suspension of Member — A Member of Parliament made unsubstantiated allegations against other members during a debate and subsequently withdrew her remarks upon the Speaker's request. The National Assembly suspended her for 15 days as a disciplinary measure. The legal issue was whether the Assembly had the constitutional authority to suspend the MP under the circumstances. The court held that the Assembly lacked the authority to suspend the MP as the suspension was punitive rather than a necessary measure to maintain order, thus rendering the suspension invalid.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter concerned an appeal to the Supreme Court of Appeal arising from internal disciplinary action taken by the National Assembly against a sitting Member of Parliament. The appellant was the Speaker of the National Assembly, and the first respondent was Ms Patricia De Lille MP, supported in the proceedings by the Pan Africanist Congress of Azania as second respondent.


The procedural history began with remarks made by Ms De Lille during an interpellation debate in the National Assembly. Following those remarks, the Assembly established an ad hoc committee, adopted that committee’s recommendations, and resolved to impose sanctions including a 15-day suspension from the Assembly’s proceedings. Ms De Lille then brought an application in the Cape High Court, where a full bench set aside the relevant resolutions. The Speaker appealed that outcome to the Supreme Court of Appeal.


The dispute, in substance, concerned the constitutional and legal validity of the Assembly’s decision to suspend a member as a punitive disciplinary measure for statements made in the Assembly, and the extent to which the Constitution authorises internal parliamentary discipline that limits a member’s participation in parliamentary deliberations.


2. Material Facts


On 22 October 1997, during an interpellation debate in the National Assembly, Ms De Lille stated that the second respondent possessed information relating to twelve members of the ANC who had allegedly been “spies for the apartheid regime”. She called for the Government to disclose who the alleged agents were, referring to “agents … who received blood money” and to persons who had “betrayed the soul of the nation”. When challenged to provide names, she eventually named eight persons, including some who were not members of the Assembly.


The Speaker ruled that it was unparliamentary for Ms De Lille to refer to members as “spies” and to name them in that context, and required her to withdraw the relevant remarks. Ms De Lille initially sought to withdraw conditionally (seeking an opportunity to consult the rules), but the Speaker required an unconditional withdrawal. Ms De Lille then withdrew the offending remarks and was thanked by the Speaker.


On 27 October 1997, after examining the unrevised Hansard, the Speaker required Ms De Lille also to withdraw further parts of her earlier statement referring to “agents … who received blood money” and “people who betrayed the soul of the nation”, on the basis that these were unsubstantiated allegations reflecting on members’ integrity. Ms De Lille again unconditionally withdrew those remarks.


Later on 27 October 1997, an ANC member proposed a motion to appoint an ad hoc committee to report on Ms De Lille’s conduct in making serious allegations without substantiation and to recommend what action the House should take. The motion was adopted by a majority, supported only by ANC members. The committee (comprising eight ANC members and seven opposition members, chaired by an ANC member) convened in November 1997 and ultimately recommended that Ms De Lille be directed to apologise in writing and that she be suspended for fifteen parliamentary working days.


On 25 November 1997, the Assembly adopted the recommendations in substance, with the additional resolution that the apology extend also to the individual members Ms De Lille had named. The Secretary of the Assembly later informed Ms De Lille that the suspension would run from 2 to 20 February 1998.


Ms De Lille challenged these decisions in the Cape High Court, alleging (as grounds of review) that the ad hoc committee and the Assembly were biased, acted mala fide, and did not give her a fair hearing. The Supreme Court of Appeal indicated that, for purposes of its determination, it would assume without deciding that the Speaker was correct in disputing bias, mala fides, and unfairness on the papers, because the decisive question was whether the Assembly had lawful authority to suspend Ms De Lille in the circumstances.


3. Legal Issues


The central legal question was whether, on the facts as accepted for purposes of the appeal, the National Assembly had constitutional or lawful authority to impose a punitive suspension on a member for statements made in the Assembly which were later found to be objectionable and unsubstantiated, despite being withdrawn when required.


This dispute was primarily one of law, turning on constitutional interpretation and the legal sources of parliamentary powers and privileges. It also involved the application of constitutional provisions to the facts, particularly the distinction between (a) temporary exclusion as a measure necessary to protect orderly proceedings and (b) suspension as a punishment for prior speech not disrupting proceedings at the time.


A further issue concerned whether the court’s jurisdiction was excluded or restricted by doctrines of parliamentary privilege, including arguments relating to a certificate contemplated by the Powers and Privileges of Parliament Act 91 of 1963, and whether a purported parliamentary power not authorised by the Constitution could be immune from judicial scrutiny.


4. Court’s Reasoning


The court’s reasoning proceeded from the premise that the Constitution is supreme, not Parliament, and that all exercises of power must be sanctioned by the Constitution. Conduct inconsistent with the Constitution is invalid, and courts may scrutinise exercises of power that are not constitutionally authorised.


In assessing the source of authority for the suspension, the court considered section 57 of the Constitution, which permits the National Assembly to determine and control its internal arrangements, proceedings, and procedures, and to make rules and orders with due regard to representative and participatory democracy. The court accepted that this power is broad enough to enable the Assembly to maintain internal order and discipline, and it recognised that temporary exclusion may be necessary where a member is disrupting or obstructing proceedings, or unreasonably impairing the Assembly’s ability to conduct its business in an orderly manner.


However, the court emphasised a distinction between (a) exclusion or suspension as a protective measure required to maintain order during proceedings, and (b) suspension imposed as a punishment for a speech made some days earlier which did not disrupt the proceedings at the time but was considered objectionable. Relying on the distinction articulated in Kielley v Carson, the court held that the power to maintain order does not, without more, entail a power to impose punitive suspensions for prior speech.


The court then read section 57 together with section 58, which guarantees members freedom of speech in the Assembly and its committees, subject to the Assembly’s rules and orders, and also provides immunities from civil or criminal proceedings for what is said in the Assembly. The court treated this constitutional protection of parliamentary speech as a “crucial guarantee” in a democratic representative system. It reasoned that the threat of suspension for speech in the Assembly inhibits freedom of expression, and that section 58(2) (which permits other privileges and immunities to be prescribed by national legislation) should not be interpreted in a manner that indirectly undermines the core guarantee in section 58(1).


The Speaker’s primary argument sought to locate authority for punitive suspension in section 58(2) through a chain of incorporations: that section 36 of the Powers and Privileges of Parliament Act 91 of 1963 preserved pre-1961 privileges; that this preservation included provisions in earlier legislation (including reference to privileges of the UK House of Commons); and that English parliamentary custom included a power to suspend members for contempt. The court rejected the basic premise that section 36 of the 1963 Act constituted national legislation “prescribing” such privileges for purposes of section 58(2). It held that section 58(2) contemplates national legislation that itself clearly and specifically articulates privileges and immunities that impact the constitutional guarantee of free speech, and not a “tortuous process” of discovering an obscure rule said to exist within English parliamentary custom via inferential incorporations.


The court distinguished Poovalingam v Rajbansi, relied upon by the Speaker, on the basis that it was decided under a different constitutional regime and concerned the scope of privilege in relation to a letter said to be defamatory, rather than whether an express constitutional guarantee of freedom of speech in a democratic constitutional order could be curtailed by general reference to inherited privileges not clearly prescribed by post-constitutional national legislation.


An alternative argument advanced for the Speaker was that section 58(1)(a) makes freedom of speech subject to the Assembly’s rules and orders, and that the Standing Rules (in particular Rule 77(A)(1)) incorporated “any other law”, which in turn incorporated the privileges relied on. The court held that the reasons for rejecting the section 58(2) argument applied equally to this route. It further observed that the Standing Rules conferred a power on the Speaker to suspend a member for disruption for limited periods, but did not confer a power on the Assembly to impose the kind of punitive suspension in issue.


Having found that there was no constitutional authority for the Assembly’s punitive suspension of Ms De Lille, the court held that the suspension was void unless the court’s jurisdiction to grant relief was excluded. It considered discussions around New Brunswick Broadcasting Co v Nova Scotia, but held that nothing in that case supported immunity from judicial scrutiny where a purported exercise of power was not properly authorised by the Constitution. The court also noted that reliance on a certificate under section 5 of the 1963 Act had been expressly abandoned on appeal.


Finally, on relief, the court held that the High Court’s order could not stand in the form granted because Ms De Lille’s attack was directed at the suspension component of the Assembly’s resolution, not the apology component. The appropriate order was therefore to declare void and set aside only that part of the resolution that purported to suspend her.


5. Outcome and Relief


The Supreme Court of Appeal held that the National Assembly lacked constitutional authority to suspend Ms De Lille from the Assembly in the circumstances, where the suspension functioned as a punitive measure for prior speech rather than a protective measure to maintain order during proceedings.


The court set aside the order of the Cape High Court, subject to substituting relief that declared void and set aside only the suspension portion of the National Assembly’s resolution of 25 November 1997.


On costs, the court upheld the High Court’s costs order. It further ordered the Speaker to pay the respondents’ costs on appeal, including the costs of one counsel (Mr Tredoux), and only the disbursements incurred by or on behalf of the other two counsel who appeared pro amico.


Cases Cited


De Lille and another v Speaker of the National Assembly 1998 (3) SA 430 (C).


Executive Council, Western Cape Legislative v President of the Republic of South Africa [1995] ZACC 8; 1995 (4) SA 877 (CC).


Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill 83 of 1995 [1996] ZACC 3; 1996 (3) SA 289 (CC) (1996 (4) BCLR 518).


Kielley v Carson [1842] EngR 593; [1842] 13 ER 225 (PC).


Poovalingam v Rajbansi 1992 (1) SA 283 (A).


Du Plessis and Others v De Klerk and Another [1996] ZACC 10; 1996 (3) SA 850 (CC) (1996 (5) BCLR 658).


Holomisa v Argus Newspapers Ltd 1996 (2) SA 588 (W).


Director: Mineral Development Gauteng Region and another v Save the Vaal Environment and others Supreme Court of Appeal, case no 133/98, 12 March 1999 (unreported).


New Brunswick Broadcasting Co v Nova Scotia (1993) 13 CRR (2nd) 1 (SC).


Legislation Cited


Constitution of the Republic of South Africa, 1996 (sections 2, 39(2), 57, 58).


Powers and Privileges of Parliament Act 91 of 1963 (sections 5, 10, 36, and references to section 32 in connection with section 10).


Republic of South Africa Constitution Act 32 of 1961 (as referred to in section 36 of Act 91 of 1963).


Republic of South Africa Constitution Act 110 of 1983 (as historical context referred to in distinguishing earlier authority).


Constitution of the Republic of South Africa Act 200 of 1993 (interim Constitution) (sections 55 and 58, as referred to for comparative context).


Act 19 of 1911 (as referred to in the appellant’s chain-of-incorporation argument).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The Supreme Court of Appeal held that, even assuming the absence of bias, mala fides, or procedural unfairness, the decisive question was whether the National Assembly had lawful (constitutional) authority to suspend a member as punishment for prior speech in the Assembly. It held that neither section 57 nor section 58 of the Constitution, nor section 36 of the Powers and Privileges of Parliament Act 91 of 1963 (whether read alone or via incorporation of English parliamentary custom), authorised the Assembly to impose a 15-day punitive suspension for the statements at issue.


The court further held that a purported exercise of power not authorised by the Constitution is not immune from judicial scrutiny, and that the suspension portion of the resolution was therefore void and had to be set aside. The court limited the relief to the suspension component of the resolution, rather than invalidating the entirety of the resolution.


LEGAL PRINCIPLES


The judgment applied the principle of constitutional supremacy, namely that all exercises of public power, including by Parliament, must be authorised by the Constitution, and that conduct inconsistent with the Constitution is invalid and subject to judicial review.


It affirmed that while the National Assembly has broad authority under section 57 to control its internal proceedings and to maintain order, this authority supports measures that are protective and functional (such as dealing with disruption), and does not automatically extend to punitive suspension for past speech that did not obstruct proceedings.


It applied and reinforced the constitutional significance of freedom of speech in the Assembly under section 58(1), treating it as a fundamental feature of representative democracy. The court held that mechanisms that materially limit that freedom, such as punitive suspension for what was said in debate, require clear constitutional or statutory authorisation consistent with the Constitution.


It further established that section 58(2) contemplates national legislation that clearly and specifically prescribes additional privileges and immunities affecting parliamentary speech, and that general “saving” provisions (and indirect incorporation of foreign parliamentary custom through layered statutory references) do not suffice as “prescription” for purposes of limiting the constitutional guarantee.

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Speaker of National Assembly v De Lille MP and Another (297/98) [1999] ZASCA 50; [1999] 4 All SA 241 (A); 1999 (11) BCLR 1339 (SCA) (26 August 1999)

REPORTABLE
Case No: 297/98
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
THE SPEAKER OF THE NATIONAL ASSEMBLY
APPELLANT
and
PATRICIA DE LILLE MP
FIRST RESPONDENT
THE PAN
AFRICANIST CONGRESS OF AZANIA
SECOND RESPONDENT
COURT:
MAHOMED CJ, VAN HEERDEN DCJ, NIENABER, OLIVIER JJA, and FARLAM
AJA
DATE OF HEARING:
24-25 MAY 1999
DATE OF DELIVERY:
26 AUGUST 1999
SUMMARY:
A Member of Parliament (MP) made a number of unsubstantiated
allegations against other named members in the National Assembly. On
being
reprimanded by the Speaker, she unconditionally withdrew her remarks. Despite
this, the Assembly sought to punish her by excluding
her from its deliberations
for 15 days. The Constitution does not grant the Assembly authority to suspend
the MP in these circumstances
for that
period.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
. . . MAHOMED CJ
MAHOMED CJ
[1] The first respondent (“respondent”) in this
appeal is a member of the National Assembly (“the Assembly”).

During an interpellation debate in the Assembly on 22 October 1997, the
respondent stated that the second respondent had information
pertaining to
twelve members of the “other side of the House” (the ANC) who had
been accused of having been “spies
for the apartheid regime”. She
said it was necessary to know whether these accusations were true. She called
on the Government
to “tell the public at large who the agents are who
received blood money to betray the genuine struggle of the African
people”.
She said it was no longer the prerogative of the President to
withhold information about who betrayed the soul of the nation. These
remarks
provoked various interventions and the respondent was challenged to give the
names of those who were alleged to be “spies”.
She eventually
reacted to this challenge by mentioning the names of eight persons including
some who were not members of the Assembly.
[2] The Speaker of the
Assembly, who is the appellant, ruled that it was unparliamentary for the
respondent to use the word “spies”
in referring to members of the
Assembly and in doing so to name such members of the Assembly. The respondent
was asked to withdraw
this part of her statement in the Assembly.
[3] The
respondent initially agreed to withdraw her remarks conditionally, because she
wanted an opportunity to consult the relevant
rules of the Assembly. The
appellant insisted that the respondent had to decide whether she was withdrawing
the offending remarks
or not. She was not entitled to a conditional withdrawal.
The respondent thereupon withdrew her statement and was thanked by the
appellant.
[4] The matter was again raised on 27 October 1997 by the
appellant who had in the meanwhile examined the unrevised Hansard of the
interpellation debate on 22 October. She referred to those parts of the
statement previously made by the respondent which referred
to “agents . .
. who received blood money to betray the genuine struggle of the African
people” and to “people
who betrayed the soul of the nation”.
The respondent was asked also to withdraw these parts because they were
unsubstantiated
allegations against members which reflected on their integrity.
The respondent unconditionally withdrew the offending remarks.
[5] The
appellant thereupon said that the “House has accepted the practice that
members should not be attacked by name in the
House without prior
notification.” She added that she wanted “to encourage members to
follow this practice in future.”
[6] Later on 27 October 1997 a
member of the ANC in the House proposed a motion to appoint an “ad hoc
committee to report to
the House . . . on the conduct of Mrs P de Lille, in
making serious allegations without substantiation against members of the House
on 22 October 1997, and to recommend what, if any, action the House should take
in the light of its report.” The motion was
adopted by the Assembly by a
majority of votes. Only members of the ANC supported the motion.
[7] The
ad hoc committee authorised by this resolution was duly appointed. It consisted
of eight members of the ANC and seven members
from the opposition. It was at
all times chaired by a member of the ANC. It convened on 5 November 1997 and
continued its sittings
on 6 and 25 November 1997.
[8] The ad hoc
committee adopted a report to the Assembly which included recommending that the
respondent:
a. Be directed to apologize to the Assembly by means of a letter addressed to
the appellant;
b. Be suspended for fifteen parliamentary working days with effect from the
next sitting day.
[9] In substance these
recommendations were adopted by the Assembly on 25 November 1997. In addition
it resolved that the apology
which the respondent was directed to make extended
also to the individual members of the Assembly she had previously named in the
interpellation debate. In a letter dated 15 December 1997 the Secretary of the
Assembly wrote to the respondent formally informing
her of these decisions and
stating that the “period of suspension would . . . run from 2 to 20
February 1998.”
[10] The respondent was aggrieved by these
decisions and launched a formal application in the Cape High Court impugning the
relevant
resolutions of the ad hoc committee and the Assembly which led to her
suspension, on the grounds that the majority of the members
of the ad hoc
committee and the Assembly were biased against her, that they were mala fide and
that she did not receive a fair hearing
before the impugned resolutions were
adopted.
[11] A full bench of the Cape High Court consisting of King DJP
and Hlope J upheld this attack and granted an order declaring void
the relevant
resolutions of the Assembly on 25 November 1997 impacting on the
respondent.
[1]
[12] Mr
Gauntlett SC who appeared for the appellant (together with Mr Heunis SC and Mr
Ngalwana) submitted that the evidence on affidavit
which was relied on by the
court a quo, did not justify the conclusion that the majority of the ad hoc
committee or the Assembly
were biased against the respondent or that they were
mala fide or that they failed to accord to the respondent a fair hearing before
supporting the impugned resolutions. This is strenuously disputed by Mr
Trengove SC who appeared for the respondent (with Mr Chaskalson
and Mr Tredoux).
In the view I take of this appeal, I shall assume without deciding that Mr
Gauntlett is correct in his submission.
[13] That assumption is not
sufficient, however, to resolve the appeal in favour of the appellant. Even if
the impugned resolutions
were adopted bona fide and even if the respondent did
receive a fair hearing preceding such adoption, the essential enquiry which
needs to be made is whether or not in the circumstances disclosed by the record
the Assembly had any lawful authority to take any
steps to suspend the
respondent from Parliament.
[14] This enquiry must crucially rest on the
Constitution of the Republic of South Africa.
It
is Supreme - not
Parliament. It is the ultimate source of all lawful authority in the country.
No Parliament, however bona fide
or eminent its membership, no President,
however formidable be his reputation or scholarship and no official, however
efficient or
well meaning, can make any law or perform any act which is not
sanctioned by the Constitution. Section 2 of the Constitution expressly
provides that law or conduct inconsistent with the Constitution is invalid and
the obligations imposed by it must be fulfilled.
It follows that any citizen
adversely affected by any decree, order or action of any official or body, which
is not properly authorised
by the Constitution is entitled to the protection of
the Courts. No Parliament, no official and no institution is immune from
Judicial
scrutiny in such
circumstances.
[2]
[15] It is
therefore necessary to examine the provisions of the Constitution to determine
whether there is any Constitutional authority
which entitled the Assembly to
suspend the respondent in the circumstances relied on by the
appellant.
[16] The first section of the Constitution upon which reliance is
placed on behalf of the appellant is section
57.
[3]
This section provides that the
National Assembly “may determine and control its internal arrangements,
proceedings and procedures”.
There can be no doubt that this authority is
wide enough to enable the Assembly to maintain internal order and discipline in
its
proceedings by means which it considers appropriate for this purpose. This
would, for example, include the power to exclude from
the Assembly for temporary
periods any member who is disrupting or obstructing its proceedings or impairing
unreasonably its ability
to conduct its business in an orderly or regular manner
acceptable in a democratic society.
[4]
Without some such internal mechanism of control and discipline, the Assembly
would be impotent to maintain effective discipline and
order during
debates.
[17] But it does not follow from this that the Assembly
necessarily had the Constitutional authority to suspend the respondent from
its
proceedings in the circumstances which it resolved to do. It is clear that the
respondent was not suspended because her behaviour
was obstructing or disrupting
or unreasonably impeding the management of orderly business within the Assembly,
but as some kind of
punishment for making a speech in the Assembly some days
earlier which did not obstruct or disrupt the proceedings in the Assembly
at the
time, but was nevertheless considered objectionable and unjustified by others
including the majority of members of the ad
hoc committee and the Assembly. As
was explained by the Privy Council in
Kielley v
Carson
[5]
the former kind of
suspension is a necessary protective measure, the latter not. The question
therefore that needs to be determined
is not whether the Assembly or the
appellant had lawful authority to suspend the respondent from the Assembly as an
orderly measure
to protect proceedings of the Assembly from obstruction or
disruption, but whether or not it had the authority to do so as a punishment
or
disciplinary measure for making a speech which was not in any way obstructive or
disruptive of proceedings in the Assembly, but
which was nevertheless open to
justifiable objection. That question cannot properly be answered by
interpreting the ambit of section
57(1)(a) of the Constitution in isolation, but
by reading it together with other relevant provisions including section
58.
[6]
[18] Section 58(1)(a)
provides that Cabinet members and members of the National Assembly 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.”
[19] The main argument of Mr Gauntlett on behalf of
the appellant was based on section 58(2). He contended that if section 57(1)(a)
is read with section 58(2) it ultimately provides constitutional authority for
the suspension of the respondent in the circumstances
I have referred to. This
submission is based on a series of interrelated, complex and sometimes even
perplexing propositions. The
first proposition is that section 36 of the Powers
and Privileges of Parliament Act No 91 of 1963 (“the PPP Act”)
(which
preserves in general terms the “privileges, immunities and
powers” which Parliament enjoyed at the date of the enactment
of Act 32 of
1961)
[7]
constitutes “national
legislation” which “prescribes other privileges and immunities of
the National Assembly”
within the meaning of section 58(2) of the
Constitution. The second proposition is that the effect of section 36 of the
PPP Act
in so preserving the “privileges, immunities and powers”
which Parliament enjoyed at the date of the enactment of 1961,
was also to
preserve the provisions of section 36 of Act 19 of 1911 which provided
inter
alia
that save as otherwise expressed in that Act, the members of the House
of Assembly would enjoy the same privileges enjoyed by the
House of Commons of
the Parliament of the United Kingdom or the members thereof. The third
proposition is that one of the privileges
or powers, which the House of Commons
in the United Kingdom enjoys (although rarely exercised) is the power to suspend
a member of
the House for contempt and other breaches of privilege. This power,
it is argued, is part of the law and custom of Parliament in
the United
Kingdom.
[8]
The fourth proposition is
that the end result of the previous three propositions is to render lawful the
respondent’s suspension,
because it would be lawful in terms of the
parliamentary law and custom of the United Kingdom which is incorporated through
an interpretation
of a successive web of South African legislation over a period
of more than eighty years.
[20] Central to the edifice which the
appellant seeks to erect on the strength of these propositions in defence of the
respondent’s
suspension is one basic premise. It is this: By
incorporating a reference to other laws which in turn incorporate further laws
which
incorporate the Parliamentary law and custom of the United Kingdom which
arguably allows for the suspension of members of Parliament,
section 36 of the
PPP Act is “prescribing” “other privileges and immunities of
the National Assembly” and
its members within the meaning of these
expressions in section 58(2) of the Constitution. In my view this basic premise
is unsound
in law. Section 58(1) expressly guarantees freedom of speech in the
Assembly (subject to its rules and orders). It 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. Section 58(2) must not be interpreted in
the manner contended
by Mr Gauntlett so as to detract from that guarantee. What
section 58(2) does is to authorise national legislation which will itself
clearly and specifically articulate the “privileges and the
immunities” of the National Assembly which have the effect
of impacting on
the specific guarantee of free speech for members in the Assembly. It does not
contemplate a tortuous process of
discovery of some obscure rule in English
Parliamentary law and custom justifying the suspension of a member of Parliament
which
is not identified within section 36 itself, but is to be inferred from a
South African statute in 1911 which is inferentially incorporated
in another
statute in 1961 which is itself incorporated by reference in section 36 of the
PPP Act. Section 36, in my view, therefore,
does not constitute “national
legislation” which “prescribes” any “privileges and
immunities”
of the National Assembly (within the meaning of section 58(2)
of the Constitution), which justifies the invasion of the guarantee
of free
speech in section 58(1) through the mechanism of the punitive suspension of a
member of the Assembly.
[21] Mr Gauntlett relied heavily on the case of
Poovalingam v Rajbansi
[9]
in
support of his interpretation of section 58(2). He drew our attention to the
review of Parliamentary privilege in South Africa
contained in the judgment of
Corbett CJ
[10]
in that matter. In
my view
Poovalingam’s
case does not assist the argument of Mr
Gauntlett in the present appeal. The dispute in
Poovalingam’s
case
was whether a certain letter delivered by one member of a Parliament to other
members and which was said to be defamatory of
a particular member was protected
by the guarantee of free speech in Parliament contained in sections 2 and 8 of
the PPP Act. Corbett
CJ held that it was not. In the course of doing so he
analysed the history of the privilege conferred on members of Parliament,
through its origins in English law and concluded that there was a “close
bond between our law and English law on the subject
of Parliamentary
privilege.”
[11]
The Court was
not confronted with or required to deal with the issue as to whether or not an
express Constitutional guarantee of
free speech for members of a Parliamentary
Assembly such as that protected by section 58(1) of the present Constitution
could be
restricted through “other privileges and immunities”
inherited from English Parliamentary custom in a general way without
being
specifically prescribed by national legislation of the nature contemplated by
section 58(2).
[22] Moreover, 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
important
provisions of the present (1996) Constitution relevant to the present
debate. Not only is the right to freedom of speech in the
Assembly expressly
constitutionalised in section 58(1)(a) (subject to its rules and orders), but
the “rules and orders”
which the Assembly makes to control its
“internal arrangements, proceedings and procedures,” must, in terms
of section
57(1)(b), have “due regard to representative and participatory
democracy.” These provisions are also materially different
from the
comparable provisions of the interim Constitution contained in Act 200 of
1993.
[12]
[23] Properly
interpreted, the provisions of section 58(2) of the Constitution therefore do
not support the approach contended for
by Mr Gauntlett. Section 58(2) does not
itself “prescribe” any other “privilege or immunity”, to
limit the
right of free speech in the Assembly protected by section 58(1).
National legislation is necessary to achieve that result.
[24] The
argument advanced on behalf of the appellant based on section 58(2) of the
Constitution and Section 36 of the PPP Act is
countered by Mr Trengove by
another suggested obstruction. It is this: Section 36 of the PPP Act is
preceded by the phrase “[s]ave
as is otherwise expressly provided by this
Act”. This means that the “privileges, immunities and powers”
of the
National Assembly at the time of the promulgation of Act 32 of 1961 which
the section seeks to preserve, only apply to the extent
to which the PPP Act
does not provide otherwise.
[25] It is contended that Section 10 of the
PPP Act, does however, provide very elaborate mechanisms to discipline and
punish members
of the Assembly. Section 10(3) refers to 13 different forms of
contempt which Parliament can punish. They include the kind of contempt
which
the respondent in this matter is said to have committed. Section 10 also
provides for punishment in the form of a fine and
detention where such fine has
not been paid. Mr Trengove argued that in effect the PPP Act codifies what the
different forms of
contempt are and how they are to be punished. No provision
is made, however, for suspension as a form of punishment for a member
who is
guilty of contempt of the kind attributed to the
respondent.
[13]
[26] Mr
Gauntlett, contended, however, that section 10 is not exhaustive. He argued
that it is not inconsistent with the retention
of the power of suspension in
appropriate cases, if this is permitted by the legislation incorporating English
Parliamentary law
and custom in the manner I have previously described. Mr
Trengove argued that the detailed structure of the PPP Act, does not permit
of
such an interpretation but even if it did, the Act is also at least reasonably
capable of the interpretation that it is indeed
exhaustive in respect of the
punishments which are competent for contempt. It was contended that in that
event the latter construction
must be preferred because it would be more
consistent with the spirit and purpose of the Constitution and its anxiety to
protect
freedom of speech and more particularly the right of members
representing voters, to express themselves freely and without fear on
matters of
public interest. It was pointed out that section 39(2) of the Constitution
expressly directs that “when interpreting
any legislation . . . every
court, tribunal or forum must promote the spirit, purport and objects of the
Bill of
Rights.”
[14]
[27] Although
the alternative submissions of Mr Trengove referred to in paragraphs 24, 25, and
26 are certainly arguable, I find it
unnecessary to decide on the correctness
thereof, because of the conclusions I have come to in respect of his other
submissions dealt
with in this judgment.
[28] If section 58(2) provides
no constitutional authority for the suspension of the respondent from the
National Assembly, is there
any other provision in the Constitution which does?
In the alternative to his main argument, Mr Gauntlett contended that such
authority
is to be inferred from section 58(1)(a) which limits the right to
freedom of speech in the Assembly by making it subject to its rules
and orders.
It was conceded that the rules and orders of the Assembly do not themselves make
any provision for the suspension of
the members by the Assembly, but it was
contended that this effect is achieved through Rule 77(A)(1) of the Standing
Rules of the
Assembly which makes freedom of speech and debate in the House
itself “subject to the restriction placed on such freedom in
terms of the
Constitution, any other law or these
Rules.”
[15]
It is argued
again that this incorporates section 36 of the PPP Act, which through a series
of subsequent incorporations of other
laws, ultimately incorporates English
Parliamentary law and custom, which in certain instances allows the House of
Commons to suspend
its members. The reasons which I have set out in rejecting a
similar argument in dealing with the submission that section 58(2)
provides
constitutional authority for the suspension of the respondent, are of equal
application to the appellant’s case in
this respect based on section
58(1).
[29] There is therefore nothing in the “rules and
orders” of the Assembly, which qualifies in any respect relevant to
the
appeal, the right to freedom of speech in the Assembly which section 58(1)
guarantees. More directly, there is nothing which
provides any constitutional
authority for the Assembly, to punish any member of the Assembly, for making any
speech, through an order
suspending such member from the proceedings of the
Assembly. The right of free speech in the Assembly protected by section 58(1)
is a fundamental right crucial to representative government in a democratic
society. Its tenor and spirit must conform to all other
provisions of the
Constitution relevant to the conduct of proceedings in
Parliament.
[30] In the result, the appellant has failed to persuade me
that the National Assembly had any constitutional authority to suspend
the
respondent from the National Assembly in the circumstances disclosed by the
evidence adduced before the High Court.
[31] The respondent would
therefore be entitled to an order declaring her purported suspension to be void,
unless there is some legal
basis for excluding the jurisdiction of the Court to
afford such relief to her.
[32] In the context under consideration
there was considerable debate by counsel in the heads of argument, with regard
to the implications
and the correctness of various dicta in the Canadian case of
New Brunswick Broadcasting Co v Nova
Scotia
.
[16]
The issue in that
case was whether the exclusion of media representatives from proceedings in the
Nova Scotia House of Assembly
because they were seeking to televise the
proceedings violated the right to freedom of expression articulated in section
2(b) of
the Canadian Charter. McLachlin J held in that case that the
Legislative Assembly concerned had an inherent constitutional right
to exclude
strangers from its chambers in order to protect itself against the disruptions
of its business. Our attention was drawn
to the following dicta by the learned
Judge:
[17]
“Having concluded that the Assembly had the Constitutional right to do
what it did, it follows that the
Charter
cannot cut down that right, on
the principle that one part of the Constitution cannot abrogate another part of
the Constitution.”
The approach of McLachlin J in this
case was not fully shared by the other
Judges
[18]
and is the subject of
considerable controversy in
Canada.
[19]
It is, however,
unnecessary in the present appeal to pursue this controversy. Nothing in any of
the judgments in the case of
New Brunswick Broadcasting Co v Nova Scotia
supports the proposition that a purported exercise of power, not properly
authorised by the Constitution, is immune from judicial
scrutiny and convention.
The issue in that case was whether the exercise of such a power violated the
Canadian Charter of fundamental
rights, and if it did so, whether it was subject
to “Charter review”. Those questions might or might not have risen
in the present appeal if it was necessary to decide that the appellant or the
National Assembly had violated the Bill of Rights in
Chapter 2 of the
Constitution, by failing to afford to the respondent a fair bona fide hearing.
I have found it unnecessary to decide
that issue. The only relevant issue is
whether or not the suspension of the respondent by the National Assembly was
constitutionally
authorised. I have held that it was not.
[33] The
appellant also adduced a certificate in terms of section 5 of the PPP
Act
[20]
in the court a quo
ostensibly as some kind of obstacle to the jurisdiction of the Court to afford
to the respondent the relief she
sought. Counsel for the appellant, before us,
however expressly abandoned any reliance on this certificate.
[34] The
court a quo was therefore correct in holding that the decision of the National
Assembly on 25 November 1997 to suspend the
respondent was void. The order made
by the Court however to uphold prayers 2.1, 2.3 and 2.5 of the notice of motion
needs re-examination.
Prayer 2.1 sought to declare void the whole of the
resolution passed by the National Assembly on 25 November 1997. That resolution
included two parts: the first part directed the respondent to apologise, and the
second part resolved to suspend her from Parliament.
The attack of the
respondent was confined to the second part. The period of suspension has in any
event expired. Counsel were
agreed that if the submissions on behalf of the
appellant made by Mr Gauntlett failed, the proper course would be to make an
order
declaring that the National Assembly was not entitled in law to make an
order purporting to suspend the respondent from the National
Assembly.
Costs
[35] Notwithstanding the fact that the
whole of the order of the court a quo cannot be sustained on appeal, the
respondent has achieved
substantial success on appeal. There is no reason why
the appellant should ordinarily not be directed to pay the costs of the
respondent.
The respondent engaged three counsel on appeal. They were Mr
Trengove, Mr Chaskalson and Mr Tredoux. Mr Trengove and Mr Chaskalson,
however, appeared pro-amico. Mr Trengove for the respondent, therefore asked
for an order dismissing the appeal, and an order of
costs consequent upon the
employment of Mr Tredoux and in respect of only the disbursements of Mr Trengove
and Mr Chaskalson.
Order
[36] It is ordered that:
(1) The order made by the court a quo is set aside, subject to paragraph 2.
(2) The order of costs made by the court a quo is upheld.
(3) It is declared that that part of the resolution of the National Assembly
adopted on the 25 November 1997 which purports to suspend
Mrs Patricia De Lille
is void and is set aside.
(4) The appellant is
directed to pay the costs of the respondent on appeal. Such costs shall
include:
(a) The costs attendant upon the employment of Mr
Tredoux;
(b) Only the disbursements
incurred by or on behalf of Mr Trengove and Mr Chaskalson, (including the
reasonable costs of accommodation
and travel).
I MAHOMED
CHIEF JUSTICE
CONCUR:
VAN HEERDEN DCJ
NIENABER JA
OLIVIER JA
FARLAM AJA
[1]
De Lille and another v Speaker
of the National Assembly
1998 (3) SA 430 (C).
[2]
Executive Council, Western Cape
Legislative v President of the RSA
[1995] ZACC 8
;
1995 (4) SA 877
(CC). at para’s
61-62,
Ex parte Speaker of the National Assembly: In re Dispute Concerning
the Constitutionality of Certain Provisions of the National Education
Policy
Bill 83 of
[1996] ZACC 3
;
1995
1996 (3) SA 289
(CC)
(1996 (4) BCLR 518)
at para
22.
[3]
Section 57 reads as
follows:
“(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 all
minority political parties represented in the Assembly,
in a manner consistent
with democracy;
(c) financial and administrative assistance to each party
represented in the Assembly in proportion to its representation, to enable
the
party and its leader to perform their functions in the Assembly effectively;
and
(d) the recognition of the leader of the largest opposition party in the
Assembly as the Leader of the Opposition.”
[4]
For this reason the Standing Rules
for the Assembly give powers to the Speaker to suspend a member of the Assembly
in such circumstances
for a maximum period of five Parliamentary working days on
the first occasion (See Rules 85 - 88 of the Standing Rules). No such
power is
given to the Assembly in terms of the relevant rules.
[5]
[1842] EngR 593
;
[1842] 13 ER 225
(PC).
[6]
The full text of section 58(1) and
(2) reads as follows:
“(1) Cabinet members 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.
(2) Other privileges and immunities of the National Assembly, Cabinet members
and members of the Assembly may be prescribed by national
legislation.”
[7]
Section 36 of the PPP Act provides
as follows:
“Save as is otherwise expressly
provided by this Act, Parliament, a member and an officer of Parliament,
respectively, shall
have all such privileges, immunities and powers as at the
time of the promulgation of the Constitution were applicable in the case
of the
House of Assembly referred to in the Republic of South Africa Constitution Act,
1961 (Act 32 of 1961), and any member or officer
thereof and also such
privileges, immunities and powers as are from time to time conferred by any law
of the Republic.”
[8]
Halsbury’s Laws of England
(4
th
ed Vol 34 para 1009); O Hood Phillips: Constitutional and
Administrative Law (7
th
Edition p 131); Coke: Fourth Institutes of
the Laws of England (1797) p 50.
[9]
1992 (1) SA 283 (A).
[10]
Especially at pp 290-91.
[11]
At 291F-G.
[12]
See sections 55 and 58 of Act
200 of 1993.
[13]
Section 10(1) of the PPP Act
read with section 10(2) and section 32.
[14]
See
Du Plessis and Others v
De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC)
(1996 (5) BCLR 658)
at paras
60-66, 86, 141;
Holomisa v Argus Newspapers Ltd
1996 (2) SA 588
(W) at
596C-598E;
Director: Mineral Development Gauteng Region and another v Save
the Vaal Environment and others
unreported decision of the SCA, 133/98 (12
March 1999).
[15]
Rule 77(A)(1) of the current
Standing Rules of the Assembly provides
that:
“In accordance with section 55(2) of the
[interim] Constitution [now section 58(1) of the Constitution] there shall be
freedom
of speech and debate in or before this House and any committee thereof,
or any joint committee of Parliament, subject only to the
restrictions placed on
such freedom in terms of or under the Constitution, any other law or these
Rules.”
[16]
(1993) 13 CRR (2
nd
) 1
(SC).
[17]
At 21.
[18]
Cory J at p 58; Lamer CJ at p
42.
[19]
See Peter W Hogg: Constitutional
Law of Canada, loose-leaf edition Vol. 2 pp 34-9 to 34-10.
[20]
Section 5 provides as
follows:
“At any stage of any civil or
criminal proceedings instituted for or on account or in respect of any matter of
privilege, upon
production to the court or judge by the defendant or accused, of
a certificate by the Speaker or, in his absence or other incapacity,
by the
Secretary, stating that the matter in question is one which concerns the
privilege of Parliament, that court or judge shall
immediately stay such
proceedings, which shall thereupon be deemed to be finally
determined.”

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