Democratic Alliance v Speaker of the National Assembly and Others (CCT86/15) [2016] ZACC 8; 2016 (5) BCLR 577 (CC); 2016 (3) SA 487 (CC) (18 March 2016)

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[2016] ZACC 8
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Democratic Alliance v Speaker of the National Assembly and Others (CCT86/15) [2016] ZACC 8; 2016 (5) BCLR 577 (CC); 2016 (3) SA 487 (CC) (18 March 2016)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 86/15
In the matter
between:
DEMOCRATIC
ALLIANCE
Applicant
and
SPEAKER
OF THE NATIONAL
ASSEMBLY
First Respondent
CHAIRPERSON
OF THE NATIONAL
COUNCIL
OF
PROVINCES
Second Respondent
GOVERNMENT OF
THE REPUBLIC
OF
SOUTH
AFRICA
Third Respondent
Neutral
citation:
Democratic
Alliance v Speaker of National Assembly and Others
[2016]
ZACC 8
Coram:
Moseneke DCJ, Cameron J, Jafta J, Khampepe J,
Madlanga J, Nkabinde J, Nugent AJ, Van der Westhuizen J and Zondo J
Judgments:
Madlanga J (majority): [1] to [63]
Nugent AJ (concurring): [64] to [81]
Jafta J (minority): [82] to [134]
Heard
on:
5 November 2015
Decided
on:
18 March 2016
ORDER
On application for
confirmation of the order of constitutional invalidity granted by the
High Court of South Africa, Western Cape
Division, Cape Town and
applications for leave to appeal against the judgment and order of
the High Court:
1.
The declaration of constitutional
invalidity of section 11 of the Powers, Privileges and Immunities of
Parliament and Provincial
Legislatures Act 4 of 2004 made
by the High Court of South Africa, Western Cape Division, Cape Town
is not confirmed.
2.
The omission of the words “other than
a member” after the word “person” at the beginning
of section 11 of
the Powers, Privileges and Immunities of Parliament
and Provincial Legislatures Act 4 of 2004 is declared to be
inconsistent
with the Constitution.
3.
Section 11 of the Act is to be read as
though the words “other than a member” appear after the
word “person”
at the beginning of the section.
4.
The appeal is dismissed.
5.
The cross-appeal is dismissed.
6.
The respondents must pay the applicant’s
costs, including the costs of two counsel.
JUDGMENT
MADLANGA J
(Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo
J concurring):
Introduction
[1]
A parliamentary system is central to most
modern democracies.  It is to this system that the first
founding provision of our
Constitution
inter
alia
alludes.
[1]
By its very nature, Parliament is a body that functions through a
deliberative process.  Its decisions are the result
of that
process.  Axiomatically, that process can only be meaningful if
all members of Parliament are given room freely to
make their points
and express their opinions.  Without freedom of speech in
Parliament, products of the parliamentary system
would be but a
sham.  That, in turn, would be pernicious to democracy itself.
[2]
Unsurprisingly, members of our Parliament
have been afforded freedom of speech.  This is provided for in
sections 58(1)(a)
and 71(1)(a) of the Constitution in respect of the
two Houses of Parliament, the National Assembly and National Council
of Provinces,
respectively.  Further, there are cognate
immunities; cognate because they flow from the idea of guaranteeing
free speech
in Parliament.  This is plain from the words of
Mokgoro J dealing with an analogous situation in
Dikoko
v Mokhatla
:
“
Immunising
the conduct of members from criminal and civil liability during . . .
deliberations is a bulwark of democracy.
It promotes freedom of
speech and expression.  It encourages democracy and full and
effective deliberation.  It removes
the fear of repercussion for
what is said.  This advances effective democratic
government.”
[2]
What are the
immunities?  Sections 58(1)(b) and 71(1)(b) immunise members of
the National Assembly and National Council of
Provinces respectively
from civil or criminal proceedings, arrest, imprisonment or
damages.
[3]
Without these immunities, free speech would be severely curtailed.
[3]
This freedom is at the centre of these
proceedings.  The applicant, the Democratic Alliance, which is
the largest opposition
party in Parliament, is seeking confirmation
of an order declaring section 11 of the Powers, Privileges and
Immunities of Parliament
and Provincial Legislatures Act
[4]
(Act) constitutionally invalid.
[5]
This declaration was made by the High Court of South Africa, Western
Cape Division, Cape Town (High Court).
[6]
The respondents
[7]
seek leave to appeal against that declaration.  The Democratic
Alliance is cross-appealing against the remedy and challenges
certain
findings of the High Court.
[4]
The basis for the declaration of
constitutional invalidity by the High Court is that section 11 of the
Act impermissibly curtails
a member’s privilege of free speech
in Parliament by providing for the arrest of members of Parliament
(members) who create
or take part in a disturbance.
Brief background
[5]
The facts giving rise to this litigation
received wide publicity.  They relate to the State of the Nation
Address delivered
by the President of the Republic on
12 February 2015 at a joint session of the two Houses of
Parliament.  Shortly
after the address had commenced, a member
of the Economic Freedom Fighters, a political party represented in
Parliament, rose to
ask a question.  The enquiry was when –
in accordance with a report by the Public Protector – the
President was
to repay money spent on certain upgrades to his private
residence at Nkandla.  On the day, the Speaker of the National
Assembly
(Speaker) and the Chairperson of the National Council of
Provinces (Chairperson) were alternating in presiding over the
proceedings.
[6]
When the question was raised, the Speaker
was in the Chair.  Her response was that the President’s
State of the Nation
Address was not the occasion for raising
questions of that nature.  Dissatisfied with the Speaker’s
response, other
members of the Economic Freedom Fighters rose –
one after the other – and interjected.  The issues they
raised
related to the repayment and the President’s obligation
to answer questions put to him by Parliament.  That, despite
the
Speaker’s persistence in her response and repeated requests
that they take their seats for the President to continue
with his
address.  Eventually, the Speaker asked members of the Economic
Freedom Fighters to leave the parliamentary Chamber.
They did
not.  They were then forcibly removed in terms of section 11 of
the Act.
[7]
At that point, the parliamentary leader of
the Democratic Alliance sought clarity on whether members of the
South African Police
Service were involved in the removal.
After some equivocation, the Chairperson – who was in the Chair
at that stage
– ultimately confirmed that the police were
involved in the removal.  The leader of the Democratic Alliance
opined that
the forced removal was unconstitutional and amounted to a
breach of the separation of powers doctrine.  Members of the
Democratic
Alliance then left the Chamber voluntarily.
[8]
The Democratic Alliance launched
proceedings in the High Court seeking a declarator that section 11 is
constitutionally invalid.
It asked the Court to read in words
that would exclude members of Parliament from the “person”
liable to be arrested
and removed in terms of section 11.  That
means section 11 should be made to read as being applicable only to
people who are
not members of Parliament.  In the alternative,
the Democratic Alliance sought the excision of the words “arrest”

and “security services” from section 11.  The effect
of this would be that there could be a removal – but
not arrest
– of members and that removal should be by persons other than
members of the security services.
[8]
In a second alternative, the Democratic Alliance sought notional
severance in order to prevent the application of section
11 to any
exercise of the parliamentary privilege of freedom of speech.
In a further alternative, the Democratic Alliance
sought an order
declaring that, as a matter of interpretation, section 11 is not
applicable to the exercise of parliamentary privilege.
[9]
The High Court held that it was reasonable
to construe “person” in section 11 to include a member of
Parliament.
It also concluded that “disturbance”,
as it appears in the section, was so impermissibly wide as to
encompass the robust
debate and controversial speech that are
characteristic of parliamentary discourse.  It held that this
wide definition detracted
from the members’ parliamentary
privilege of free speech.  Consequently, it found section 11 to
be constitutionally
invalid.  In order to remedy the defect, it
ordered notional severance.  It left the text of the provision
unaltered
but limited its applicability as reflected in the Court
order.
[9]
The Court suspended the order of constitutional invalidity for a
period of 12 months to afford Parliament an opportunity
to
remedy the defect.
[10]
This matter raises a number of issues.
Does section 11 infringe the privilege of freedom of speech of
members of Parliament?
What is the reach of “disturbance”
as envisaged in section 11?  In that regard, what constitutes
“interference”
and “disruption” in the
definition of “disturbance”?  Does “person”
in section 11 of the
Act include a member of Parliament?  Does
an interpretation that gives an affirmative answer to the last
question sit comfortably
with the entire context of the Act?
Does this interpretation impinge on the parliamentary privilege of
free speech guaranteed
in sections 58(1) and 71(1) of the
Constitution?  To what extent and by what means may this
privilege be limited?  It
is well to start by examining the
purpose of the privilege of free speech.
Purpose of free speech
[11]
South Africa is a constitutional
democracy.  Hard-won democracy that came at a huge cost to many;
a cost that included arrest,
detention, torture and – above
all − death at the hands of the apartheid regime.
The importance of
our democracy, therefore, cannot be overstated.
It is the duty of all − in particular the three arms
of state − jealously
to safeguard that democracy.
Focussing on Parliament, the pluralistic nature of our parliamentary
system
[10]
must be given true meaning.  It must not start and end with the
election to Parliament of the various political parties.
Each
party and each member of Parliament have a right to full and
meaningful participation in and contribution to the parliamentary

process and decision-making.  By its very nature, Parliament is
a deliberative body.  Debate is key to the performance
of its
functions.  For deliberation to be meaningful, and members
effectively to carry out those functions, it is necessary
for debate
not to be stifled.  Unless all enjoy the right to full and
meaningful contribution, the very notion of constitutional
democracy
is warped.
[12]
Though said in the context of
municipalities, I am drawn to the concurring words of Sachs J in
Masondo
:
“
The
requirement of fair representation emphasises that the Constitution
does not envisage a mathematical form of democracy, where
the
winner-takes-all until the next vote-counting exercise occurs.
Rather, it contemplates a pluralistic democracy where
continuous
respect is given to the rights of all to be heard and have their
views considered.  The dialogic nature of deliberative
democracy
has its roots both in international democratic practice and
indigenous African tradition.
It was through dialogue and sensible accommodation on an inclusive
and principled basis that the Constitution itself emerged.
It
would accordingly be perverse to construe its terms in a way that
belied or minimised the importance of the very inclusive
process that
led to its adoption, and sustains its legitimacy.”
[11]
[13]
Free speech becomes ever so important when
regard is had to the nature of Parliament’s functions.  I
touch on but two
of these many functions.
[14]
Parliament makes laws.
[12]
We can be assured of the best possible legislative outcome only if
the parliamentary process admits of: the expression of
the views of
the smallest party; listening to the opinions of the timorous should
they manage to muster courage and find their
voice; and being
tolerant of the expression of the most unpopular thought that
attracts untold opprobrium.  The words of Mogoeng
CJ are apt:
“
Ours
is a constitutional democracy that is designed to ensure that the
voiceless are heard, and that even those of us who would,
given a
choice, have preferred not to entertain the views of the marginalised
or the powerless minorities, listen.”
[13]
[15]
If all possible contributions may find
their way to the legislative process, that better guarantees a
refined product.  And
that makes our democracy all the more
meaningful.  Yet again the
Masondo
concurrence bears repetition:
“
The
open and deliberative nature of the process goes further than
providing a dignified and meaningful role for all participants.

It is calculated to produce better outcomes through subjecting laws
and governmental action to the test of critical debate, rather
than
basing them on unilateral decision-making.  It should be
underlined that the responsibility for serious and meaningful

deliberation and decision-making rests not only on the majority, but
on minority groups as well.  In the end, the endeavours
of both
majority and minority parties should be directed not towards
exercising (or blocking the exercise) of power for its own
sake, but
at achieving a just society where, in the words of the Preamble,
‘South Africa belongs to all who live in it’.”
[14]
[16]
Of course, deliberation may not go on
forever.  If need be, the view of the majority must finally
prevail.  The quoted
concurrence, once more:
“
[T]he
Constitution does not envisage endless debate with a view to
satisfying the needs and interests of all.  Majority rule,

within the framework of fundamental rights, presupposes that after
proper deliberative procedures have been followed, decisions
are
taken and become binding.  Accordingly, an appropriate balance
has to be established between deliberation and decision.”
[15]
[17]
Parliament is also entrusted with the
onerous task of overseeing the Executive.  Tyrannical rule is
usually at the hands of
the Executive, not least because it exercises
control over the police and army, two instruments often used to prop
up the tyrant
through means like arrest, detention, torture and even
execution.  Even in a democracy, one cannot discount the
temptation
of the improper use of state organs to further the
interests of some within the Executive.  Needless to say, for
Parliament
properly to exercise its oversight function over the
Executive, it must operate in an environment that guarantees members
freedom
from arrest, detention, prosecution or harassment of whatever
nature.  Absent this freedom, Parliament may be cowed, with the

result that oversight over the Executive may be illusory.
Does “person”
in section 11 include a member?
[18]
If “person” in section 11 of
the Act does not include a member, then the constitutional issue of
an infringement –
by the section – of the parliamentary
privilege of freedom of speech does not arise.  The matter must
end there; and
there cannot be confirmation of the High Court’s
declaration of constitutional invalidity.  If it does, then I
must
engage in the confirmation debate.  The question is: does
it?  It does.
[19]
Writing for the majority in
Cool
Ideas
Majiedt AJ said:
“
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity.  There are three important
interrelated riders to this general principle, namely:
(a)
that statutory provisions should always be
interpreted purposively;
(b)
the relevant statutory provision must be
properly contextualised;
and
(c)
all
statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions ought
to be
interpreted to preserve their constitutional validity.  This
proviso to the general principle is closely related to
the purposive
approach referred to in (a).”
[16]
(Footnotes omitted.)
[20]
The part of the Act that is applicable to
Parliament
[17]
is replete with references to “person”.
[18]
The question is: what does this word mean in section 11?  The
Act does not define it.  On a close reading, the
sections that
contain the word preponderantly seem to include a member.  This
is dictated by the context and what the sections
seek to achieve.
I deal later with the significance of the fact that largely “person”
in the Act includes a member.
Without pretending to be
exhaustive, let me touch on some of the sections that illustrate this
fact.
[21]
Section 4 provides:
“
(1)
Members of the security services may—
(a)        enter upon, or remain
in, the precincts for the purpose of performing any policing

function; or
(b)        perform
any policing function in the precincts,
only
with the permission and under the authority of the Speaker or the
Chairperson.
(2)
When there is immediate danger to the life or safety of any person or
damage to any
property, members of the security services may without
obtaining such permission enter upon and take action in the precincts
in
so far as it is necessary to avert that danger.  Any such
action must as soon as possible be reported to the Speaker and the

Chairperson.”
Plainly, the hurried
entry by members of the security services in terms of subsection (2)
– without sanction from the
Speaker or Chairperson as envisaged
in subsection (1) – is meant to avert harm to whomever may be
at risk.  It should
matter not that the person is or is not a
member.  It would be absurd to suggest otherwise.  In
short, I read “person”
in section 4 to include a member.
[22]
Section 8(1) proscribes the improper
influence or inducement or compulsion by a person or a member to
perform or not to perform
her or his functions in a particular manner
or even not to attend Parliament.
[19]
Since a member may commit acts of this nature, I see no reason why
the proscription in section 8(1) should not apply to members.

Otherwise the section would be rendered less effective.  In
fact, this interpretation is buttressed by the provisions of section

13.  Section 13 provides that a member who contravenes section 8
– not just section 8(2) which refers to a member –
is
guilty of contempt of Parliament.  A member may only contravene
section 8 if that section is applicable to her or him.
One may
be tempted to argue that section 13 may be making reference only to
section 8(2) which specifically deals with a member.
I put that
temptation to rest by referring to the fact that the lawgiver appears
to have been quite alive to the need – when
the occasion so
required – to make reference to and distinguish between
subsections.  For example, section 13(a) refers
to sections 7,
8, 10, 19, 26 and – notably – 21(1).
[23]
Section 12(5)(c) provides that—
“
[w]hen
a House finds a member guilty of contempt, the House may, in addition
to any other penalty to which the member may be liable
under this Act
or any other law, impose any one or more of the following penalties:
. . . an order to apologise to Parliament or
the House or any person,
in a manner determined by the House”.
That the apology may
even be to an individual is a recognition that – in addition to
the impugned conduct being contempt against
Parliament – it may
have been particularly contemptuous of a specific individual.
It is so that the individual may
be a non member.  But
there is no plausible reason why that individual may not be a member.
[24]
A few sections deal with the summonsing and
examination and privileges of persons that have to give testimony
before Parliament
or its committees.
[20]
Quite easily, evidence in hearings before Parliament and its
committees may have to be that of members.  I see no reason
why
“person” in these sections would exclude a member.
In fact, that it constitutes contempt of Parliament by
a member,
without sufficient cause, to fail to attend a hearing in accordance
with a summons or remain in attendance until excused,
[21]
is indication enough that sections 14 to 16 do apply to members.
[25]
Section 17(1) and (2) criminalises certain
conduct like: failure to obey the prescription of a summons issued by
Parliament in terms
of section 14; refusal to be sworn in as a
witness; failure to answer questions fully and satisfactorily;
failure to produce any
document required to be produced; threatening,
obstructing or assaulting another or depriving another of a benefit
to influence
testimony; inducing another to refrain from giving
evidence or to give false evidence before a House or committee;
deception of
Parliament through production of
a
false, untrue, fabricated or falsified document; and wilfully
furnishing Parliament with a false or misleading statement or
information.
[22]
Section 17(3) provides that
“
[s]ubject
to section 13(b), subsections (1) and (2) do not apply to a
member
”
.
[23]
The need for this section expressly to exclude a member from its
application tells us one thing; the section would otherwise
have
applied to a member.  Indeed, the criminalised conduct is
susceptible to commission by members.
[26]
One section in which “person”
explicitly does not include a member is section 25.  It
provides:
“
(1)
A person,
other than a member
,
who feels aggrieved by a statement or remark made by a member or a
witness in or before a House or committee about that person,
may
submit a written request to the Secretary to have a response
recorded.
(2)
The committee referred to in section 12(2) must, subject to the
standing rules, consider
the request and, if approved, publish the
response of the person in the appropriate parliamentary paper.”
(Emphasis
added.)
[27]
It is not without significance that
“person” in the Act preponderantly includes members.
On a proper interpretation,
the word does not include a member only
in instances where that is quite plain from the context of the
provision,
[24]
or where the provision specifically excludes a member.
[25]
All this provides a context within which “person”
in section 11 must be interpreted in the statute as a whole.

That context suggests that in this section the word includes a
member.  Writing for the majority in
Bertie
Van Zyl
, Mokgoro J said:
“
The
text [of a statutory provision] must be interpreted in the context of
the Act as a whole, taking into account whether the preamble
and the
other relevant provisions in the Act support the envisaged
construction.”
[26]
(Footnote omitted.)
In
Hoban
the
Supreme Court of Appeal held that “context” does not mean
only “parts of a legislative provision which immediately

precede and follow the particular passage under examination”;
it “includes the entire enactment in which the word or
words in
contention appear”.
[27]
[28]
Recalling the injunction in
Cool
Ideas
to interpret legislation
purposively,
[28]
I read the purpose of section 11 to be to ensure that the business of
Parliament is not hamstrung and brought to a standstill by
a
disturbance.
[29]
Members are more likely − than non-members − to
cause an unwelcome disturbance in Parliament.
It makes sense
for “person” in section 11 to include a member.
Otherwise the section would be denuded of much
of its efficacy.
This accords with what Mhlantla AJ articulated in
Kubyana
that “[i]
t is
well established that statutes must be interpreted with due regard to
their purpose and within their context”.
[30]
Put differently, the words of a statute “
should
be read in the light of the subject-matter with which they are
concerned, and . . . it is only when that is done that
one can
arrive at the true intention of the Legislature”.
[31]
[29]
This interpretation commends itself because
grammatically “person” does include a member.
[32]
Is there anything that militates against that meaning being ascribed
to the word?  I think not.  That meaning does
not lead to
any absurdity.
[30]
On the contrary, there is some incongruity
in interpreting “person” in section 11 to exclude a
member.  First,
section 27 creates certain criminal offences.
It stipulates:
“
(1)
A person, including a member, who contravenes section 7 or 8(1)
commits an offence and is liable
to a fine or to imprisonment for a
period not exceeding three years or to both the fine and the
imprisonment.
(2)
A person, including a member, who contravenes section 19, 21(1) or 26
commits an offence
and is liable to a fine or to imprisonment for a
period not exceeding 12 months or to both the fine and the
imprisonment.”
[31]
Section 7(e) provides that “[a]
person may not . . . while Parliament or a House or committee is
meeting, create or take part
in any disturbance within the
precinct”.  This is what section 27(1),
inter
alia
, criminalises.  That means
section 7(e) envisages that a member may be guilty of creating or
participating in a disturbance.
If that were not the case, the
offence of creating or taking part in a disturbance contained in
section 27(1) would be meaningless
in so far as a member is
concerned.  If the proscription – in section 7(e) –
of the creation of or taking part
in a disturbance applies to a
member, it strikes me as absurd that in section 11 this same
proscribed activity should exclude a
member.
[32]
Second, a similar argument may be made with
regard to section 13.  In a different context, I referred to
this section in paragraph
22 above.  What I now want to
highlight is a conjoined reading of sections 7 and 13 insofar as that
relates to a “disturbance”.
Properly construed,
these two sections mean that a “disturbance” may be
committed by a member.  Once more, this
raises the oddity of the
“disturbance” envisaged in section 11 suddenly not
including a member.
[33]
One basis for interpreting “person”
in section 11 to exclude a member that commends itself is a
Hyundai-
inspired
interpretation: that is, courts should “
prefer
interpretations of legislation that fall within constitutional bounds
over those that do not, provided that such an interpretation
can be
reasonably ascribed to the section
”.
[33]
That is the interpretation that my colleague, Jafta J, advances in
his judgment (the minority judgment) which I have had
the pleasure of
reading.  But that interpretation is not viable.  That is
so because of the cumulative effect of: the
grammatical meaning of
“person”; the context provided by the Act as a whole; the
purpose of section 11; and –
in particular – the
absurdity arising from interpreting “person” in section
11 to exclude a member.  After
all,
Hyundai
and other judgments that pronounced similarly qualify the need to
interpret legislation in conformity with the Constitution.
[34]
This must be done provided that this interpretation “can be
reasonably ascribed to the section”
[35]
or is not “unduly strained”.
[36]
Reading “person” in section 11 to exclude members would
result in precisely the kind of strained interpretation
that Langa DP
discouraged in
Hyundai
.
[34]
The minority judgment also invokes section
39(2) of the Constitution in advancing its preferred interpretation.
This section
enjoins courts and other adjudicative bodies to
interpret legislation in a manner that promotes the spirit, purport
and objects
of the Bill of Rights.  This must mean − as
far as possible − legislation must be interpreted
so
as not to be in conflict with the provisions of the Bill of Rights.
It does not mean legislation must be interpreted so
as not to be in
conflict with any part of the Constitution.  My interpretation
of section 11 of the Act implicates the right
of parliamentary free
speech contained in section 58(1) of the Constitution.  Section
58(1) is not within the Bill of Rights.
The injunction in
section 39(2) of the Constitution cannot apply to the
interpretation of legislation that − like
section 11
of the Act – implicates a constitutional right provided for
outside the Bill of Rights.  This, of course,
is not a departure
from the wider principle that legislation must be interpreted in
conformity with the Constitution.
[37]
[35]
To meet the point made in the preceding
paragraph, the minority judgment places reliance on two rights in the
Bill of Rights.
These are freedom of expression
[38]
and freedom and security of the person.
[39]
The difficulty with this is that – unlike sections 58(1) and
71(1) which create a privilege and immunities enjoyed
only by members
of Parliament – these two rights are enjoyed by all.  Now,
the thrust of the minority judgment is to
set members of Parliament
apart from non-members.  As freedom of expression and freedom
and security of the person are enjoyed
by everyone, they are not apt
tools of interpretation that help set members apart from people in
general.
[36]
The minority judgment also makes the point
that section 27 does not refer to section 11.  I agree.
What I do not agree
with is the conclusion that the minority judgment
draws from this.  That is: “This . . . suggests that in
the eyes of
the Act, a contravention of section 11 is not regarded as
an offence”.
[40]
The lack of reference – in section 27 – to section 11 is
understandable.  Section 27 creates offences for
conduct that is
proscribed elsewhere in the Act.  Section 11 does not proscribe
any conduct.  It cannot be contravened.
Rather, it
empowers the presiding officer to take certain steps when the
proscription in section 7(e) has been contravened.
Thus there
is nothing in section 11 that section 27 may criminalise.
[37]
In sum, I cannot agree with the minority
judgment that an interpretation that saves section 11 from
constitutional invalidity is
open to us.
Limitation of free
speech
[38]
Surely, the privilege contained in sections
58(1)(a) and 71(1)(a) can never go so far as to give members a
licence so to disrupt
the proceedings of Parliament that it may be
hamstrung and incapacitated from conducting its business.  This
would detract
from the very
raison
d'être
of Parliament.
Section 57 of the Constitution provides that the National Assembly
may determine and control internal arrangements,
proceedings and
procedures and make rules and orders concerning its business.
[41]
Of this power, Mahomed CJ tells us in
De
Lille
:
“
There
can be no doubt that this authority [contained in section 57(1)] 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.
Without some such internal
mechanism of control and discipline, the Assembly would be impotent
to maintain effective discipline
and order during debates.”
[42]
[39]
More
pertinently, sections 58(1)
(a)
and 71(1)(a)
of
the Constitution make freedom of speech in the two Houses subject to
“the rules and orders” envisaged in sections
57 and 70.
That must mean rules and orders may – within bounds that do not
denude the privilege of its essential content
– limit
parliamentary free speech.
The
Democratic Alliance contends that section 11 is not a rule or order
of the National Assembly or National Council of Provinces.

The argument continues that the section is constitutionally invalid
because – in terms of sections 58(1)(a) and 71(1)(a)
of the
Constitution – parliamentary free speech is subject to the
rules of the National Assembly and National Council
of
Provinces, and not an Act of Parliament.
This raises the question whether an instrument other than rules and
orders may be employed to limit free speech.  This
arises in
relation to the impugned section 11 which undoubtedly does limit
parliamentary free speech.  Before grappling with
this question,
let me demonstrate that section 11 does indeed limit the privilege
and immunities contained in sections 58(1) and
71(1) of the
Constitution.
[40]
On the interpretation I have given to
section 11, the creation of or taking part in a disturbance by a
member is a criminal offence.
That being the case, the spectre
of not only an arrest, but everything that may follow it, is real.
I am here talking of
being detained in police or prison cells and
charged with and possibly convicted of a criminal offence.  That
may have a chilling
effect on robust debate.  If so, that does
limit free speech.  Addressing itself to the suspension of
members as a punishment,
the Supreme Court of Appeal in
De
Lille
had this to say:
“
[Freedom
of speech in the Assembly] is a crucial guarantee.  The threat
that a member of the Assembly may be suspended for
something said in
the Assembly inhibits freedom of expression in the Assembly and must
therefore adversely impact on that guarantee.”
[43]
[41]
It follows more strongly that this must be
so where the threat is arrest, incarceration, criminal prosecution
and possibly more.
It was submitted on behalf of Parliament
that its interest is not really criminal prosecution.  All it
wants is to remove
the member concerned and leave them “on the
pavement”; it is for the prosecuting authorities to decide what
to do thereafter,
if anything at all.  That is cold comfort.
The reality is that a criminal offence exists.  And section 11
provides
that a member may be arrested for it.  There is no
reason for members not to believe that detention and prosecution may
follow.
This chilling effect alone constitutes an infringement
of parliamentary free speech.
[42]
In addition, section 11 directly infringes
the immunities from criminal proceedings, arrest and imprisonment
enjoyed by members
in terms of sections 58(1)(b) and 71(1)(b) of
the Constitution.  Textually, unlike the privilege of free
speech contained
in sections 58(1)(a) and 71(1)(a) of the
Constitution, these immunities are not subject to the rules and
orders of the National
Assembly or National Council of Provinces.
They are by their nature absolute.
The reach of
“disturbance”
[43]
As a consequence of the application of
section 11, a member – through removal from the Chamber –
may be deprived of
further participation in the proceedings of
Parliament for the duration of her or his removal.  That does
limit the member’s
privilege under section 58(1) or 71(1).
I do accept that the limitation may well be constitutionally
permissible.
[44]
But then the deprivation of further participation in parliamentary
proceedings is pegged on the creation of or taking part
in a
“disturbance”.  Section 1 of the Act defines
“disturbance” as “any act which interferes
with or
disrupts or which is likely to interfere with or disrupt the
proceedings of Parliament or a House or committee”.
[44]
It cannot be all conduct that annoys and
tests the patience of the presiding officer and some in
Parliament that amounts to
interference or disruption.
Robustness, heatedness and standing one’s ground inhere in the
nature of parliamentary
debate.
To
warrant removal from the Chamber, interference or disruption must go
beyond what is the natural consequence of robust debate.

Otherwise the very idea of parliamentary free speech may be eroded.
In the heat of a debate one must expect that –
from time to time – a member’s contributions will not
come to a
screeching, mechanical halt once the presiding officer has
ruled that the member desist from further debate on a subject.
[45]
Is that the sort of conduct to which
section 11 is meant to apply?  If it is, then section 11 would
also be constitutionally
invalid for impermissible overbreadth.
[45]
Interference and disruption that may be sufficient
for the removal of a member must be of a nature that hamstrings and
incapacitates
Parliament from conducting its business.  Even so,
there must be no anticipation of resumption of business within a
reasonable
time.  I take the view that interference or
disruption that does not meet this threshold is not hit by section
11.  This
I do based on the
Hyundai
principle.
[46]
Permissible means of
limiting free speech
[46]
I revert to the question raised towards the
end of paragraph 10.  Is it constitutionally permissible for
parliamentary free
speech to be limited by means other than rules and
orders?
The
words of Kentridge AJ in
S
v Zuma
are instructive:
“
[I]t
cannot be too strongly stressed that the Constitution does not mean
whatever we might wish it to mean. We must heed Lord Wilberforce's

reminder that even a constitution is a legal instrument, the language
of which must be respected.  If the language used by
the
lawgiver is ignored in favour of a general resort to ‘values’
the result is not interpretation but divination.”
[47]
[47]
The
language of sections 58(1)(a) and 71(1)(a) is plain.  It makes
freedom of speech in the National Assembly and National
Council of
Provinces subject to the relevant House’s rules and orders, and
nothing else.  Limiting this freedom by means
of an Act of
Parliament is at variance with this constitutional stipulation.
This must be constitutionally impermissible.
[48]
The
difference in the language of sections 58(1)(a) and 71(1)(a), on the
one hand, and 58(2) and 71(2), on the other, warrants close

scrutiny.  Sections 58(1)(a) and 71(1)(a) make freedom of
speech subject to “rules and orders”.
Sections 58(2)
and 71(2) provide that other privileges and
immunities may be prescribed by “national legislation”.
This
distinction in language is not idle.  It buttresses the
conclusion that only rules and orders may limit freedom of speech in

Parliament.
[49]
A
possible argument against this conclusion is that the Act as a whole
is meant to provide for “other” privileges and
immunities
envisaged in sections 58(2) and 71(2); and section 11 of the Act
is but an integral part of the parcel of privileges
and immunities
provided for by the Act.  This argument need be stated only to
be knocked down.  Section 11 serves to
limit the very privilege
contained in sections 58(1) and 71(1).  It does not provide
for “other” privileges
and immunities as envisaged in
sections 58(2) and 71(2); the “other” being a reference
to privileges and immunities
other than those guaranteed in sections
58(1) and 71(1).
[50]
Is the
insistence that the limitation can only be by means of rules and
orders not an insistence on form over substance?  That,
because
both (a) rules and orders and (b) Acts emanate from Parliament.  I
think not.  When making its rules and orders
in terms of section
57 of the Constitution, Parliament acts without the involvement of
other arms of state.  The same cannot
be said of the legislative
process.  Although the legislative authority of the national
sphere of government is vested in
Parliament, the Executive plays a
not insignificant role in the legislative process.  The
President assents to Bills.
[48]
She or he may refer a Bill back to the National Assembly
for reconsideration of its constitutionality.
[49]
The President may refer a Bill
to
the Constitutional Court for a decision on its
constitutionality.
[50]
In terms of section 85(2)(d) of the Constitution legislation may
even be prepared and initiated by the Executive.
[51]
Sections 57(1) and
70(1) of the Constitution dictate that the rule and order making
power vests in the National Assembly and National
Council of
Provinces respectively.  The process is thus wholly internal.
Limiting parliamentary
free
speech by means of an Act of Parliament would bring in the
participation of an external agency, the Executive.  The
Executive
– a different arm of state – would thus be
taking part in a process that sections 57(1) and 70(1) have made the
exclusive
domain of the Legislature.  Also, at a practical level
the making of rules by Parliament must certainly be a more
streamlined
exercise than the cumbersome process of passing
legislation.
[52]
To sum up, section 11 is constitutionally
invalid to the extent that it applies to members of Parliament.
[53]
The Democratic Alliance urged that,
whatever this Court may hold on the issues discussed above, it must
also decide whether section
11 is constitutionally invalid on the
ground that it is at variance with the separation of powers
doctrine.  Having reached
the above conclusion, I am not willing
to accept this invitation.
[54]
I have had the privilege of reading the
judgment by my colleague, Nugent AJ (qualified concurrence).
Whilst I do not quarrel
with the literal and wide meaning the
qualified concurrence ascribes to the word “arrest”, I
doubt that in section
58(1)(b) “arrest” bears that
meaning.  I do not think it includes any forcible restraint,
even if not for the
purpose of prosecution.  If that were what
it meant, a removal from the Chamber in terms of rules and orders
made under sections
57(1)(b) and 70(1)(b) would infringe the immunity
from arrest contained in sections 58(1)(b) and 71(1)(b).  The
upshot of
that would be that Parliament would never be able to remove
from the Chamber a member causing a disruption.  Needless to
say,
that would negate the power given to Parliament to: “determine
and control its internal arrangements, proceedings and procedures”

in terms of sections 57(1) and 70(1); and make rules and orders
subject to which members would exercise free speech.
[51]
[55]
The qualified concurrence realises this
problem.  It concedes – as it must – that its
interpretation “does
not mean the Speaker is powerless to cause
the forcible removal of a member who disrupts the proceedings of the
National Assembly”.
[52]
Its resolution of the problem, with which I
disagree, goes:
“
The
prohibitions in section 58(1)(b) of the Constitution are designed to
reinforce the protection afforded by section 58(1)(a) to
freedom of
speech of members of the National Assembly.  Under section
58(1)(a) that freedom may expressly be limited by the
Rules and
Orders of the House, and by the same token, in my view, the
prohibitions in section 58(1)(b) must similarly be taken
implicitly
to be subject to the same limitation.”
[53]
[56]
The text of the Constitution is plain.
Sections 58(1) and 71(1) do not provide that both free speech
and the immunities contained
in paragraph (b) of each of the two
sections are subject to the rules of the two Houses.  Only
parliamentary free speech under
sections 58(1)(a) and 71(1)(a) is
subject to the rules of the two Houses.  On the other hand, the
immunities in sections 58(1)(b)
and 71(1)(b) are absolute.  This
appears to be crafted with care and deliberateness.  Yes, the
privilege in sections 58(1)(a)
and 71(1)(a) and the immunities
in sections 58(1)(b) and 71(1)(b) are interrelated.  The
immunities exist to enhance the privilege.
But − at
the same time − the immunities are distinct.
The implication drawn by the qualified
concurrence that even the
immunities may be subject to the rules and orders seems forced and
untenable.
[57]
I am not engaging in the philosophical
question concerning the distinction between being removed for what
one says − which
is what the immunities are
about − and being removed for the effect of what one
says in the sense of one’s
speech creating a disturbance.
The qualified concurrence does not raise that debate; and I need not
reach it.  Indeed,
the debate does not arise on the approach I
adopt in invalidating section 11.
[58]
I say all this not to reach a definitive
decision on the outer reaches of “arrest” as envisaged in
sections 58(1)(b)
and 71(1)(b).  I say it to go no higher than
to indicate that the approach adopted in the qualified concurrence is
questionable.
For two reasons, I do
not consider it necessary to decide this issue.  First, section
11 − insofar as it relates
to members − is
constitutionally invalid in its entirety.  I do not see the need
also to invalidate it on
the basis suggested in the qualified
concurrence; a basis that appears questionable.  Second, the
present National Assembly
rules do provide for the forcible removal
of members.
[54]
The issue addressed by the qualified concurrence may well arise and
have to be determined if the constitutional validity
of the relevant
part of the rules is challenged.
Relief
[59]
The High Court correctly found section 11
to be constitutionally invalid.  But the above discussion and
conclusion on constitutional
invalidity makes it necessary to make a
different order.  The High Court declared the provision invalid
“to the extent
that it permits a member to be arrested for
conduct that is protected by sections 58(1)(b) and 71(1)(b) of
the Constitution”.
That order is not apposite.  The
invalidity of section 11 stems from the fact that the section applies
to members.
[60]
I propose curing the constitutional defect
by reading in the words “other than a member” after the
word “person”.
[55]
This ensures that the section does not apply to members of
Parliament.  Thus formulated, the section continues to apply
to
non members and it is constitutionally compliant.  This
approach is consistent with the principles articulated by
this Court
in
National Coalition
.
[56]
When reading in, a court must ensure that the resulting provision “is
consistent with the Constitution and its fundamental
values and . . .
interfere[s] with the laws adopted by the Legislature as little as
possible”.
[57]
The reading-in I propose defines with precision to whom the section
will continue to apply.
[58]
Also, courts must endeavour to be as faithful as possible, within
constitutional constraints, to the purpose of legislation.
[59]
Here, the purpose of section 11 is to prevent disturbances in the
precinct.  Reading-in will enable Parliament to continue

fulfilling this purpose with respect to individuals who are
non-members.  Insofar as members are concerned, it is within
Parliament’s remit to create a constitutionally compliant
instrument to address disturbances where they are the culprits.
[60]
[61]
On the question of whether to suspend the
declaration of constitutional invalidity, Parliament’s rules
make it possible to
deal with errant members effectively, including
removing them from the Chamber forcibly.
[61]
When the order made below takes effect, Parliament will not be left
unable to deal with members who cause or take part in
disturbances.
I do not see a need for a suspension.  I repeat that I am not
pronouncing on the constitutional validity
of the rules insofar as
they permit forcible removals from the Chamber.  That is a
matter for another day.
Costs
[62]
Costs must obviously follow the result.
Order
[63]
The following order is made:
1.
The declaration of constitutional
invalidity of section 11 of the Powers, Privileges and Immunities of
Parliament and Provincial
Legislatures Act 4 of 2004 made
by the High Court of South Africa, Western Cape Division, Cape Town
is not confirmed.
2.
The omission of the words “other than
a member” after the word “person” at the beginning
of section 11 of
the Powers, Privileges and Immunities of Parliament
and Provincial Legislatures Act 4 of 2004 is declared to be
inconsistent with
the Constitution.
3.
Section 11 of the Act is to be read as
though the words “other than a member” appear after the
word “person”
at the beginning of the section.
4.
The appeal is dismissed.
5.
The cross-appeal is dismissed.
6.
The respondents must pay the applicant’s
costs, including the costs of two counsel.
NUGENT AJ:
[64]
I have read the comprehensive and eloquent
judgment of my colleague, Madlanga J, and I am in full agreement with
his general observations
concerning the importance of free speech in
Parliament.  I also agree that section 11 of the Act, so far as
it purports to
apply to members of Parliament and its committees,
infringes that right of free speech and is inconsistent with the
Constitution,
and I agree with the order he proposes.
[65]
I am concerned, however, that his
limitation of an “arrest” in section 11 to one directed
at prosecution for commission
of an offence
[62]
and his questioning of an extended meaning in
sections 58(1) and 71(1) of the Constitution
[63]
unduly truncates the constitutional prohibition on
limiting free speech in National Assembly and the National
Council of Provinces.
I consider the authorisation in section
11, and the constitutional prohibition, to go wider, and of that the
Legislature should
be left in no doubt, lest it consider the effect
of this Court’s judgment as permitting the section to be
resuscitated in
different form.
[66]
Moreover, on the approach adopted by my
colleague, the restraint that was placed on members in the
circumstances that gave rise
to this case, the restraint occurring
not with the objective of prosecution, but for the purpose only of
removing them from the
National Assembly, was permitted by section
11.  I disagree.  I support my colleague’s order
because I consider
legislation that permits physical restraint being
placed on members for whatever objective, including mere removal, for
what they
say
[64]
in National Assembly or the National Council of Provinces, to offend
the Constitution.
[67]
That is not to say Parliament does not have
the power to deal appropriately with members who create or take part
in proscribed disturbances.
I say only that it may not be done
by legislation.  Should it so choose, as no doubt it must, the
National Assembly must
do so through the rules and orders.
[68]
The starting point for the enquiry must be
the relevant sections of the Constitution.  For ease of reading
I reiterate section
58(1):
“
(1)
Cabinet members, Deputy Ministers and members of the
National Assembly—
(a)        have freedom of speech
in the Assembly and in its committees, subject to its rules
and
orders; and
(b)        are not
liable to civil or criminal proceedings, arrest, imprisonment or
damages for—
(i)         anything that
they have said in, produced before or submitted to the Assembly
or
any of its committees; or
(ii)
anything revealed as a result of anything that they have said,
produced before, or
submitted to the Assembly or any of its
committees.”
The section is
replicated, with appropriate modifications, in section 71(1) of the
Constitution, in relation to members of the National
Council of
Provinces.
[69]
Section 11 of the Act provides:
“
A
person who creates or takes part in any disturbance in the precincts
while Parliament or a House [the National Assembly or the
National
Council of Provinces] or committee is meeting, may be arrested and
removed from the precincts, on the order of the Speaker
or the
Chairperson or a person designated by the Speaker or Chairperson, by
a staff member or a member of the security services.”
[70]
I refer in this judgment to those sections
so far as they apply to the National Assembly and the Speaker,
they being the font
of the present dispute, but my conclusions apply
as much to proceedings in the National Council of Provinces,
committees of Parliament,
and their Chairpersons.
[71]
I agree with my colleague and the High
Court that a “person” referred to in section 11 includes
members of the National
Assembly.  On that basis the High Court
declared the section to be inconsistent with the Constitution and
invalid, but only
“to the extent that it permits a member to be
arrested for conduct that is protected by sections 58(1)(b) and
71(1)(b)
of the Constitution”.
[72]
The difference between my colleague and me
lies in the differing meanings we give to “arrest” in
section 11 of the Act
and his questioning of the meaning I give to it
in section 58(1)(b) of the Constitution.
[73]
I give the word, in both sections, its
ordinary meaning, which is not confined to arrest with the objective
of prosecution.
Its ordinary meaning is no less than “to
catch, capture, seize, lay hold upon”,
[65]
according to the Oxford English Dictionary, or to subject a person,
or indeed, a thing, to what Black’s Law Dictionary defines
as
“[a] seizure or forcible restraint”,
[66]
or what Stroud’s Judicial Dictionary calls the action that
occurs “when one is taken and restrained from his
liberty”.
[67]
Its ordinary meaning is not constrained by the objective with which
the seizure or forcible restraint occurs.  The mere
act of
seizure or forcible restraint, for whatever purpose, constitutes an
arrest.
[74]
It is because the word has that ordinary
meaning that it sits comfortably in various laws authorising seizure
or forcible restraint
even when not directed at prosecution.  It
was used, for example, in section 19 of the Supreme Court Act
[68]
(founded on the common law, which has since been held
unconstitutional, rendering the section of no effect),
[69]
which authorised the seizure of a person for the
purpose of confirming civil jurisdiction, or to prevent him or her
fleeing the
civil jurisdiction of the courts.  It is used in
section 3(5) of the Admiralty Jurisdiction Regulation Act
[70]
to describe the seizure of a vessel for the purpose of commencing a
maritime claim.  “Arrest” is also used in
section
39(1)
of the
Criminal Procedure Act
[71]
with that ordinary meaning.
It is
true that an arrest referred to in that section contemplates
prosecution, but that is not because the
word has that restricted meaning.
[72]
It is because the only circumstance in which the “seizure”
or “forcible restraint” of a person is
authorised by the
section is for the purpose of criminal prosecution.
[73]
[75]
Section 58(1)(b) of the Constitution would
be most deficient if it prohibited the arrest of members of
Parliament only if the objective
was prosecution.  As rightly
pointed out by my colleague, the prospect of being arrested for
criminal prosecution would undoubtedly
have a chilling effect on
debate.  The prospect of being “seized” or “forcibly
restrained”, with any
objective, would be just as chilling.
I imagine members would be loath to express their views if they
foresaw the prospect
of being manhandled or handcuffed.
[76]
Indeed, it seems to me that section 11,
although capable of encompassing arrest for criminal prosecution, was
not enacted with that
in mind, but was enacted precisely for the
purpose it was used in this case, which was the forcible restraint of
the members so
as to remove them from the National Assembly.
Authority to arrest for criminal prosecution, of both members and the
public,
is catered for elsewhere, and section 11 is superfluous for
that purpose.
[77]
As pointed out by my
colleague, section
7 of the Act
prohibits certain conduct in relation to the proceedings of the
National Assembly, which includes creating or taking
part in any
disturbance within the precincts, and section 27 makes it a criminal
offence.  Where an offence is committed in
his or her presence,
or a person is suspected to have committed a Schedule 1 offence
(which includes contravention of section 7)
[74]
a peace officer is authorised by section 40(1)(b)
of the Criminal Procedure Act to arrest the person
concerned in the
ordinary course.  Executing that ordinary
policing function is permitted by section 4(1) of the Act with the
permission and
under the authority of the Speaker, and without that
permission if there is immediate danger to the life or safety of any
person
or danger to property.
[75]
(We are not called upon to decide whether those
powers are constitutionally offensive insofar as they may be
exercised against members
and I do not do so.)
[78]
The power to arrest with the objective of
detention and prosecution of offenders, once having been provided for
in those sections,
is superfluous if repeated in section 11, which is
why I suggest the section was intended to be directed elsewhere.
As I
see it, the section is directed instead at what it was used for
in this case, which is to seize a person merely so as to remove
him
or her from the precincts of the National Assembly.  That
supports the wider meaning I give to the term, and is also supported

by the conjunction of “arrest” and “remove”,
which go hand in hand, because it is not possible forcibly
to remove
a person without prior seizure or forcible restraint.  I
suggest the power to “arrest” in section 11
merely
expresses in terms what is inherent in forcible removal.
[79]
As I see it, the powers conferred by the
section, both to “arrest” and to “remove” a
member, whether viewed
conjunctively or separately, are
constitutionally offensive.  This is because any forcible
restraint being placed upon a member,
if only with the objective of
removal, is prohibited by section 58(1)(b).  That being the
case, it is not necessary to consider
whether arrest and removal is
permitted at the hands of the security forces: arrest and removal of
a member by any person is not
permitted by legislative authority.
[80]
I repeat that does not mean the Speaker is
powerless to cause the forcible removal of a member who disrupts the
proceedings of the
National Assembly.  The prohibitions in
section 58(1)(b) of the Constitution are designed to reinforce the
protection afforded
by section 58(1)(a) to freedom of speech of
members of the National Assembly.  Under section 58(1)(a) that
freedom may expressly
be limited by the Rules and Orders of the
House, and by the same token, in my view, the prohibitions in section
58(1)(b) must similarly
be taken implicitly to be subject to the same
limitation.
[81]
It is on these grounds I support the order
proposed by my colleague, Madlanga J.
JAFTA J (Nkabinde J
concurring):
[82]
I have had the benefit of reading the
judgment prepared by my colleague Madlanga J (main judgment).  I
am unable to agree that
the word “person” in section 11
of the Act includes a member of Parliament as defined.
[76]
In my view the section does not apply to members of Parliament and
consequently it is not constitutionally objectionable.

Therefore, the declaration of invalidity by the High Court
should not be confirmed.
Background
facts
[83]
The background facts that led to the
purported invocation of section 11 are comprehensively set out in the
main judgment and there
is no need for them to be repeated here,
except to the extent necessary for a proper understanding of this
judgment.
[84]
When members of the Economic Freedom
Fighters (EFF) rose, one after the other, in terms of Rule 14(c) of
the Joint Rules of Parliament,
on a question of privilege, to ask
“when the President was going to pay back the money in terms of
what the Public Protector
has said”, the Speaker ruled that the
joint session was convened only for the purpose of the State of the
Nation Address
by the President.  Unhappy with this ruling,
members of the EFF questioned the legal basis for the ruling and
asked which
of the rules empowered the Speaker to make the ruling.
As proceedings could not move to the address by the President, the

Speaker ordered several members of the EFF to leave the Chamber.
[85]
In defiance of this order, the relevant
members remained in the Chamber.  The Speaker asked the
Serjeant-at-Arms and the Usher
of the Black Rod to remove them.
But the affected members resisted.  At that juncture, the
Speaker asked the Parliamentary
Protection Services and the security
services to come into the Chamber, purportedly in terms of the Act
and to remove the recalcitrant
members of the EFF.  The security
forces that came in comprised police officers.
[86]
The leader of the Democratic Alliance (DA),
having confirmed from the Speaker that the police were called into
the Chamber to remove
members of Parliament, led members of his party
out of the Chamber.  By its action, the DA was protesting the
invitation of
police into the Chamber to remove members of
Parliament.  In the view of the DA, the decision by the Speaker
amounted to a
breach of the Constitution and the principle of
separation of powers.  After the departure of the DA’s
representatives,
the President proceeded to deliver his address.
[87]
Shortly thereafter, the DA launched these
proceedings on an urgent basis in the High Court.  It cited the
Speaker, the Chairperson
of the National Council of Provinces and the
Government of the Republic of South Africa, as respondents.  The
main relief
sought was a declarator to the effect that section 11 of
the Act does not apply to members of Parliament and the Speaker or
the
Chairperson may not invoke the section to ask security forces to
remove members of Parliament from the Chamber during sessions of

Parliament.  In the event that the Court held that section 11
applied to members of Parliament, the DA claimed as an alternative

remedy, a declaration that the section was inconsistent with the
Constitution and invalid.
[88]
Although the respondents opposed the relief
claimed, they did not file affidavits.  Instead they lodged a
notice setting out
the legal points they wished to raise at the
hearing.
[77]
Three points were advanced but only two are relevant for present
purposes.  These were that properly construed, the
word “person”
in section 11 includes a member of Parliament and as a result
the section applies to members.
The other point was that
section 11 is not inconsistent with the Constitution.
[89]
In support of the alternative claim for
constitutional invalidity, the DA contended that section 11 was not
only inconsistent with
the principle of separation of powers but was
also not in line with section 199 of the Constitution.  Section
199(7) protects
political parties from prejudice by members of the
security services.
[78]
[90]
Section 58(1)(b) provides:
“
(1)
Cabinet members, Deputy Ministers and members of the National
Assembly—
. . .
(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.”
[91]
In identical terms, section 71(1)(b)
insulates members of the National Council of Provinces from arrest,
imprisonment and liability
in civil or criminal proceedings, arising
from what they said or did in the Council as members.  This
protection extends to
what may have been “revealed as a result
of anything that they have said in, produced before or submitted to
the Council
or any of its committees”.
High
Court conclusions
[92]
The High Court was asked first to interpret
section 11 and determine if the word “person” in it
covered members of Parliament.
If it did not, then the main
claim would succeed and the alternative constitutional challenge
would fall away.  Having outlined
the legal framework, the High
Court proceeded to set out the principles of interpretation used in
construing the relevant provision.
[79]
It commenced with reference to a decision of this Court in
Hyundai
Motor Distributors
[80]
from which the following principles were drawn.  The first is
that the Constitution requires judicial officers to read legislation

in ways that give effect to fundamental values.  The second is
that courts are under a duty, when the constitutionality of

legislation is in issue, to examine the objects and purport of an Act
and to read the provisions of the legislation, so far as
possible, in
conformity with the Constitution.  Therefore, it is imperative,
continued the High Court, where a legislative
provision is reasonably
capable of a meaning that places it within constitutional bounds,
that it should be preserved.  Only
if this is not possible, the
Court concluded, should resort be had to the remedy of reading in or
notional severance.
[93]
The High Court also cited the decision of
the Supreme Court of Appeal in
Endumeni
Municipality
.
[81]
This case reaffirmed the common law principles applied to
interpretation of legislation and written documents.  These

principles stress the primacy of the language employed in the
provision to be interpreted and that Judges should guard against
“the
temptation to substitute what they regard as reasonable, sensible or
business-like for the words actually used”.
Substitution
of words used is regarded as constituting an impermissible intrusion
into the domain of law-making.
[94]
While all these principles were relevant to
the interpretation exercise undertaken by the High Court, it was in
the application
of some and the omission of others that the High
Court fell in error.  This was because the High Court proceeded
from the
wrong premise.  That Court characterised the
interpretation question thus:
“
Applying
these stated principles and approach to the provisions of section 11,
the question now is whether the reference to ‘a
person’
is reasonably capable of including ‘a member’ and, if so,
whether such meaning
is
congruent
with sections 58(1) and 71(1) of the Constitution and the doctrine of
the separation of powers.”
[82]
(Emphasis added.)
[95]
This characterisation of the issue reveals
the misapplication of the principles taken from
Hyundai
Motor Distributors
.  As a result,
a wrong question was asked.  The question was not whether the
word “person” is reasonably
capable of including members
of Parliament.  The answer to the question posed by the High
Court would unavoidably lead to
striking down the provision.
And as a result that Court came to this conclusion:
“
Taking
into account the ordinary rules of grammar and the syntax in which
the particular wording of section 11 is expressed, it
is indeed
reasonably possible to construe the reference to ‘a person’
in the provision to include a ‘member’.
It is not
difficult to imagine a situation where a member may create or cause a
disturbance of such gravity that it undermines
the authority or
dignity of Parliament as a whole.  In those instances common
sense dictates that the Presiding Officer must
be in a position to
take decisive action as an orderly measure to protect the dignity of
Parliament from obstruction, disruption
and disturbances.”
[83]
[96]
Owing to its incorrect characterisation of
the issue, the High Court proceeded straight to declaring section 11
unconstitutional.
In doing so, it failed to follow the
principles enunciated in
Hyundai
Motor
Distributors
.
The first of which is the duty to read a legislative provision
“through the prism of the Bill of Rights” and
give effect
to its values.  Consistent with this principle is the rule that
where the validity of legislation is challenged,
having examined the
objects and purport of the Act, the Court must read its provisions,
so far as is possible, in conformity with
the Constitution.
However, the reach of the latter principle is limited to the extent
that the language of the provision
under interpretation is reasonably
capable of the alternative confirmation.
[97]
Since the High Court was asked to determine
whether section 11 applied to members of Parliament and so declare,
the right issue
which the High Court had to determine was whether the
word “person” is reasonably capable of a meaning that
excludes
members of Parliament.  If it did and that construction
fell within constitutional bounds, then the High Court should have

preferred the narrow meaning, regardless of whether the wider scope
of section 11 was intended.  For as long as the language
of a
provision is reasonably capable of the alternative meaning, the
principle finds application.  In
Hyundai
Motor
Distributors
Langa DP formulated the principle in these terms:
“
There
will be occasions when a judicial officer will find that the
legislation, though open to a meaning which would be
unconstitutional,
is reasonably capable of being read ‘in
conformity with the Constitution’.  Such an interpretation
should not,
however, be unduly strained.”
[84]
[98]
It is only if reading the provision under
construction in conformity with the Constitution is not reasonably
possible, that a court
must declare it invalid.  The High Court
failed to do this.  Instead once it found that “person”
is
reasonably capable of including a member of Parliament, the High
Court adopted that construction and held that section 11 was
inconsistent
with the Constitution.
Is section 11 invalid?
[99]
At the outset I accept that the word
“person” may reasonably be construed to include a member
of Parliament.  In
its ordinary sense “person”
refers to human beings and members of Parliament belong to the human
species.  While
the word “person” has a broader
meaning, the Act distinguishes between members of Parliament and
other persons, for
example staff members and members of the public.
A staff member is defined as the Secretary to Parliament or “any
other
person employed or contracted by Parliament, whether in a
permanent or temporary capacity”.  Therefore, although the

Act regards employees of Parliament as persons, they are not taken as
members of Parliament.
[100]
This is so because the Act defines a member
of Parliament differently.  With regard to the National Assembly
“member”
means a member of the Assembly and includes a
Minister or Deputy Minister who is not such a member.  As
contemplated in the
Act the word “member” includes
Ministers and Deputy Ministers who are not in truth members of the
Assembly.  This
is because the President may appoint to Cabinet
persons who are not members of the Assembly.  In the eyes of the
Act, Ministers
who are not elected to the Assembly become members of
Parliament by virtue of their appointment to Cabinet.
[101]
With regard to the National Council of
Provinces, “member” means a permanent delegate or a
special delegate to the Council
while acting as a delegate.  The
word also includes the Deputy President, a Minister and a Deputy
Minister.  What is
apparent from this definition is that the Act
does not consider other persons, including members of the public as
members of Parliament.
[102]
A close reading of the Act also reveals
that its purpose is to define and declare powers, privileges and
immunities of members of
Parliament and provincial legislatures,
together with those of the institutions they serve.  It is in
this context that section
3 places the control of Parliament in the
Speaker and the Chairperson.
[85]
Consistent with this, section 4 proclaims that members of security
services, including the police and army, may enter Parliament
and
perform policing functions only with the permission and under the
authority of the Speaker or the Chairperson.  This means
that
when the police investigate crime within the precinct of Parliament
or seek to arrest a suspect, they may only do so with
the permission
of the Speaker and the Chairperson.  And while they perform
their duties in Parliament, the police fall under
the authority of
the Speaker or the Chairperson.
[103]
Although the word “person” is
not defined in the Act and ordinarily it should be assigned its
grammatical and ordinary
meaning, the sense in which it is used in
section 11 will be revealed by context which must be gathered not
only from section 11
but also from the Act, as a whole.
Section 11 provides:
“
A
person who creates or takes part in any disturbance in the precincts
while Parliament or a House or committee is meeting, may
be arrested
and removed from the precincts, on the order of the Speaker or the
Chairperson or a person designated by the Speaker
or Chairperson, by
a staff member or a member of the security services.”
[104]
Plainly the section authorises an arrest
and removal, from the precinct of Parliament, of a person who creates
or takes part in
a disturbance while Parliament or one of its
committees is meeting.  The arrest and removal may be effected
by a staff member
or a member of the security services.  That
arrest and removal must be authorised by the Speaker or the
Chairperson or a person
designated by them.  What is immediately
apparent from the reading of section 11 is that the word “person”
is
used twice.  In the first place, it is used in the context of
an arrestee, that is the person to be arrested.  In the
second,
it is used in the sense of the person who authorises the arrest.
This demonstrates that the word is used in different
senses.
[105]
Crucial though to the relief sought in the
High Court was the meaning of person in the first sense, that is the
one to be arrested
and removed.  In that forum the DA contended
that “person” did not include members of Parliament.
Therefore
what we need to determine is whether in the relevant sense,
“person” as it appears in section 11 does not
include
members of Parliament.  Happily in this process, we are
guided by established principles of interpretation.  Some of
these principles are based in the Constitution as stated in
Hyundai
Motor
Distributors
and others in the common law.
Applicable principles
[106]
I prefer to start with the common law.
At common law there is a well-known principle to the effect that the
legislature is
presumed to use language consistently.  Where the
same word appears in different parts of the statute, it is taken to
have
been used in the same sense unless there is a clear indication
to the contrary.  This principle was affirmed by this
Court.
[86]
In
Hoërskool Ermelo
Moseneke DCJ stated:
“
[P]recepts
of statutory interpretation suggest that the word ‘function’
should have the same meaning whereas it occurs
in the statute, since
there is a ‘reasonable supposition, if not a presumption’
that ‘the same words in the same
statute bear the same meaning;
throughout the statute.’”
[87]
(Footnote omitted.)
[107]
The first section that uses “person”
more than once like section 11 is section 5 of the Act.  It
reads:
“
A
person may not within the precincts—
(a)        execute or serve or
tender for service any summons, subpoena or other process issued
by a
court; or
(b)
except as authorised by section 4 or 11, arrest another person,
without the express
permission of, or in accordance with the
directives of, the Speaker or the Chairperson or a person authorised
by the Speaker or
the Chairperson.”
[108]
It is apparent that the word is used in
three senses in this section.  The first being the context of
someone who executes
or serves a summons or other process issued by a
court.  In that sense the word “person” cannot be
read as including
members of Parliament because these members do not
have the power to execute or serve a court process.
[88]
In the second context, the word is used with reference to the person
on whom the process is served or who is subject to arrest.
In
this context the word may reasonably include a member of Parliament
on whom process is served.  There is a clear indication
that
“person” in section 5 does not bear the same meaning.
The presumption that the word bears the same meaning
is rebutted
because here we know that in some sections “person” is
used in different senses.
[109]
In the third context the word is used to
denote someone authorised by the Speaker or the Chairperson to grant
permission to the
sheriff or police officer to serve process within
the precincts of Parliament.  Again it appears that in this
context the
word may reasonably be taken to include staff members and
members of Parliament.  After all, the Speaker and the
Chairperson
are members of Parliament.
[110]
On the same approach one finds that in
section 11, “person” is used in different contexts which
signify an indication
that the word does not bear the same meaning.
In the second context, it is used to refer to someone on whom the
power to
issue an arrest order is delegated by the Speaker or the
Chairperson.  Here too that someone may be a staff member or
member
of Parliament.  Whereas in the first context, the word is
used to refer to someone who creates or participates in a disturbance

while Parliament is meeting.  In that context, members of
Parliament are expected to be part of the meeting which section
11
seeks to protect.
[111]
Section 11 is located in Chapter 3 of the
Act and the title of this Chapter expressly refers to the protection
of members and Parliament.
[89]
Reading the word “person” in the first part of section 11
as including members, defeats the objective of protecting
members of
Parliament.  That construction may achieve institutional
protection of Parliament but it does not safeguard members
of
Parliament.  Whereas the interpretation that reads “person”
as excluding members of Parliament advances the
objective of
protecting the institution and its members.  Therefore I
disagree with the main judgment that such reading is
not viable.
[90]
[112]
Consistent with the purpose of protecting
Parliament and its members, which Chapter 3 seeks to achieve, in
creating offences section
27 makes it plain that a contravention of
sections 7 and 8(1) by a person, including a member, amounts to an
offence.  If
“person” as appearing in those sections
included members, section 27 could not have used the phrase “a
person,
including a member”.  The words “including a
member” were deliberately chosen to signify that members too

would be committing an offence if they contravene those two
sections.  Accordingly, the protection that Chapter 3 affords

members of Parliament does not extend to situations where a member
commits a crime.  The purpose of the protection is to safeguard

members in the performance of their legitimate functions.
[113]
Significantly, section 11 does not only
authorise the removal from the Chamber or House where the disturbance
occurred but from
the precincts.  The precincts of Parliament
are defined widely to cover all land and every building under
Parliament’s
control.  This includes the forecourt, yard
and gardens.
[91]
If “person” were to be construed as including members, it
would mean that the member so removed would not be
entitled to go to
her office within the precincts.  This would be absurd because
she would have been removed from the venue
where the disturbance
occurred and barring her from her office and other facilities would
not be consistent with the purpose of
section 11.  Yet the
person empowered to arrest and remove would be entitled to take her
out of the precincts.
[114]
Of course, I also agree with the main
judgment that on the opposite side of the scale, there is an
indication that “person”
may have been used to include
members.
[92]
In relevant part, section 25 reads “a person, other than a
member. . . .”  While this may be taken as an
indication
that Parliament wanted to be explicit that in section 25 “person”
excluded members, it does not follow that
that was the purpose of the
quoted words.  The heading of section 25 dispels the notion.
It shows that the purpose of
the section is to protect members of the
public.  It reads: “Protection of members of public”.
This sufficiently
shows that the section deals with the protection of
the public.
[115]
It seems to me that the words “other
than a member” in section 25(1) were used in contra-distinction
to the word “person”
in section 25(2).  In the
latter section “person” clearly includes a member of
Parliament.  According to
the structure of section 25, a
non-member who is aggrieved by what was said in Parliament may
request a recorded response.
The recorded response of the
person who made the offending statement or remark may be published in
the appropriate parliamentary
paper.  It is apparent from
section 25(1) that the offending remark may be made by a member or
non-member.
[93]
But a member who is aggrieved by a remark made by another member
cannot make the request envisaged in section 25 because
that
provision protects the public only.
[116]
The common thread that emerges from
sections 5, 11 and 25 of the Act is that within each the word
“person” is used in
two different meanings.  One
meaning includes members and the other excludes them.
[117]
Notably, in creating offences section 27
makes no reference to section 11.  This omission suggests that
in the eyes of the
Act, a contravention of section 11 is not regarded
as an offence.  It follows that there can be no objection to
protecting
and immunising members of Parliament from arrest and
removal envisaged in section 11.  If a member of Parliament
conducts
himself in a manner that breaches section 11, he may be
dealt with in terms of Rules of Parliament.  Rule 14 empowers
the
Speaker to order that a member should leave the Chamber.
The fact that a member may defy the Speaker’s order does not

justify the interpretation that the power of arrest and removal in
section 11 applies to members of Parliament.
[118]
If the rules of Parliament do not empower
the Speaker or the Chairperson to call Parliamentary Protection
Services to remove a defiant
member of Parliament, then there is
inadequacy in the rules that must be cured.  After all, the
discipline of members of Parliament
is maintained through the rules.
That is why section 58(1) and 71(1) of the Constitution
proclaim that freedom of speech
in the Assembly and the Council is
subject to their rules and orders.  We must accept that when
Parliament enacted the Act,
it was alert to these constitutional
provisions and that it did not seek to pass unconstitutional
legislation by purporting to
use this Act instead of the rules to
curtail the rights of members to freedom of speech.
[119]
Thus in
De
Lille
,
[94]
Mahomed CJ pronounced that:
“
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 representation and participatory democracy’.”
[120]
With regard to the Assembly’s power
to discipline its members, Mahomed CJ stated:
“
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.  Without some such internal
mechanism of control and
discipline, the Assembly would be impotent to maintain effective
discipline and order during debates.”
[95]
(Footnote omitted.)
[121]
I agree that the Assembly and Council have
the power to exclude, for limited periods, disruptive members who
obstruct or unreasonably
impair their proceedings.  I also agree
with the main judgment that the exercise of that power must be
located in the rules
of the Assembly or the Council.
Accordingly, an interpretation that excludes members of Parliament
from the application of
section 11 does not leave a vacuum which
cannot be filled by the rules.
[122]
In accordance with constitutional
principles, section 11 must not only be interpreted purposively to
achieve the dual objective
of protecting Parliament and its members,
by affording members privileges and immunities, but also in a manner
that promotes the
members’ rights to freedom of speech.
As it was observed by this Court in
SATAWU
,
[96]
legislation that limits or intrudes upon fundamental rights must be
interpreted in a manner least restrictive of those rights if
the text
is reasonably capable of bearing that meaning.
[123]
The constitutional principle is triggered
by the limitation of the rights to freedom of speech and the freedom
and security of the
person which the impugned provision imposes.
The arrest and removal of members from parliamentary precincts
infringes their
rights to freedom and security of the person.
But the arrest is also in conflict with section 58(1)(b).  While
the same
conduct constitutes a breach of the members’ rights to
freedom of speech, it is also inconsistent with the privilege
afforded
to members by section 58(1)(a).  The fact that section
58 confers privileges on members does not mean that their rights
contained
in sections 12 and 16 of the Bill of Rights cease to
exist when they are in parliamentary precincts which include not only

the house chambers but also open spaces and gardens.
[124]
Instead what this constitutional principle
means is that a statutory provision, which on the face of it limits
the rights in the
Bill of Rights must be read through the lens of the
Bill of Rights.  This principle is activated independently of
the case
pleaded in a particular matter.  The fact that a
constitutional challenge is not, as is the position here based on a
clause
in the Bill of Rights, does not affect the application of the
principle.  That both sections 58(1) and 71(1), on which the

challenge relied, afford members of Parliament privileges and
immunities, as opposed to rights, is not in dispute.
[125]
The interpretation of section 11 that was
preferred by the High Court conforms to the common law principle that
says words used
in a statute must be accorded their ordinary meaning
and that one may depart from this rule only if the ordinary meaning
leads
to an absurdity or injustice that was not intended by the
law-maker.  The Constitution has changed all this.  It
empowers
the courts to depart from the ordinary meaning even if it
does not lead to an absurdity.  The Constitution, in requiring
that
legislation be read in conformity with it, authorises courts to
read legislation restrictively if doing so would bring an overbroad

provision within the bounds of the Constitution.
[126]
This is known as the reading-down of
legislation.  This technique is usually applied to overbroad
provisions.  In
National Coalition
,
this Court said:
“
There
is, it is true, a principle of constitutional interpretation that
where it is reasonably possible to construe a statute in
such a way
that it does not give rise to constitutional invalidity, such a
construction should be preferred to another construction
which,
although reasonable, would give rise to such inconsistency.”
[97]
(Footnote omitted.)
It applies even to
cases where, like in the present, the validity of a statutory
provision is tested against a clause in the Constitution
but outside
the Bill of Rights.
[127]
There can be little doubt that “person”
as used in the relevant part of section 11, is reasonably capable of
a wider
and a narrower meaning.  The wider meaning would include
members of Parliament and this meaning gives rise to constitutional

inconsistency.  Whereas the narrower meaning which excludes
members of Parliament does not.  According to the principle
of
constitutional interpretation, the narrower meaning must be preferred
over the wider one, even though both of them are reasonably
possible
meanings of the word.  This principle is called reading-down and
it is not restricted to cases where a provision
under interpretation
is inconsistent with a clause in the Bill of Rights.
[128]
The reading-down principle was applied by
the Supreme Court of Appeal in
Govender
.
[98]
In that case the Court had to construe a statutory provision which
authorised the use of force to overcome resistance or
prevent a
suspect from fleeing.  The relevant provision empowered a person
authorised to effect an arrest to “use such
force as may in the
circumstances be reasonably necessary to overcome the resistance or
to prevent the person concerned from fleeing”,
in order to
carry out the arrest.  Notably, in this provision too, the word
“person” is used twice and in different
contexts, namely
the arrestor and the arrestee.
[99]
[129]
Applying section 39(2) of the Constitution
and following
Hyundai Motor
Distributors
, the Supreme Court of
Appeal in
Govender
departed from its previous decisions in which the predecessor of
section 49(1) accorded a liberal meaning.
[100]
According to that literal meaning, police could use deadly force to
effect an arrest, regardless of whether the force was
proportional to
the threat posed by the suspect’s resistance.  They were
only required in terms of that meaning to show
that the force used
was necessary to effect an arrest.
[130]
Interpreting section 49(1) in a manner that
promotes the suspect’s rights like the right to life, the right
to physical integrity,
the right to dignity and the right to equality
before the law and equal protection of the law, in
Govender
the Court held:
“
The
words ‘. . .use such force as may in the circumstances be
reasonably necessary . . . to prevent the person concerned

from fleeing . . .’ in section 49(1)(b) of the Act must
therefore generally speaking (there may be exceptions) be interpreted

so as to exclude the use of a firearm or similar weapon unless the
person authorised to arrest, or assist in arresting, a fleeing

suspect has reasonable grounds for believing:
1.         that the suspect
poses an immediate threat of serious bodily harm to him or
her, or a
threat of harm to members of the public; or
2.
that the suspect has committed a crime involving the infliction or
threatened
infliction of serious bodily harm.”
[131]
What emerges from this interpretation of
section 49(1) is that the reach of the provision was reduced from the
use of any force
reasonably necessary to overcome resistance or
prevent flight, by excluding the use of firearms or similar weapons,
except where
one of the two conditions is present.  This
reading-down approach was endorsed by this Court in
S
v Walters
.
[101]
Needless to stress that the reading-down in
Govender
preserved section 49(1) by bringing it within the constitutional
bounds.
[132]
Since the inclusive reading of section 11
limits the members’ right to free speech and as a result is
inconsistent with the
Constitution, section 39(2) of the Constitution
obliges us to prefer the narrow meaning that removes the
inconsistency and preserves
the section.  I can think of no
grounds that exclude the applicability of section 39(2) to this
matter.  The peremptory
obligation flowing from section 39(2)
was affirmed in these terms in
Phumelela
Gaming
:
“
A
court is required to promote the spirit, purport and objects of the
Bill of Rights when ‘interpreting any legislation, and
when
developing the common law or customary law’.  In this no
court has a discretion.  The duty applies to the
interpretation
of all legislation and whenever a court embarks on the exercise of
developing the common law or customary law.
The initial
question is not whether interpreting legislation through the prism of
the Bill of Rights will bring about a different
result.  A court
is simply obliged to deal with the legislation it has to interpret in
a manner that promotes the spirit,
purport and objects of the
Bill of Rights.  The same applies to the development
of the common law or customary law.”
[102]
(Footnotes omitted.)
[133]
The question that arises here is whether,
on the narrow interpretation, section 11 would still achieve its
purpose.  The
apparent object of section 11 is to protect the
proceedings of Parliament from disturbances.  It seems to me,
that on the
narrow construction, the section would still achieve its
object, except with regard to a disturbance caused by members of
Parliament.
But since the Constitution guarantees these members
certain privileges that can be limited only by the rules and orders
of Parliament,
the section could not competently protect proceedings
against disruption by members.  Any disruptive conduct by
members of
Parliament must be addressed in a constitutionally
permissible manner, in the rules and orders.
[134]
I conclude that, properly constructed,
section 11 is constitutionally compliant.  It follows that I
cannot confirm the declaration
of invalidity made by the High Court.
Instead I would have declared that to the extent that the section
authorises the arrest
and removal of persons, it does not apply to
the members of Parliament.
For the
Applicant:         S P
Rosenberg SC and M J Bishop instructed by Minde Shapiro
Smith Inc
For the Respondents:
J J Gauntlett SC and K Pillay instructed by the
State Attorney
[1]
The founding provisions of the Constitution are
sections 1-6.  Section 1(d) provides:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
. . .
(d)
Universal adult suffrage, a national common voters roll, regular
elections
and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.”
In the text I use “
inter
alia
” because this section also alludes to other elected
bodies, namely the Provincial Legislatures and Municipal Councils.
[2]
Dikoko v Mokhatla
[2006] ZACC 10
;
2006 (6) SA 235
(CC);
2007 (1) BCLR 1
(CC) at para
39.  This was in the context of municipalities.  But it is
of relevance to Parliament.  This part
of the judgment received
the unanimous support of this Court.  See also
Swartbooi
and Others v Brink and Others
[2003]
ZACC 25
; 2006 (1) SA 203 (CC)
[2003] ZACC 25
; ;
2003 (5) BCLR 502
(CC)
(
Swartbooi
)
at para 20; and
Speaker of the National
Assembly v De Lille and Another
[1999] ZASCA 50
;
1999 (4) SA 863
(SCA) (
De
Lille
) at para 20.
[3]
Section 58(1) provides:
“
Cabinet
members, Deputy Ministers and members of the National Assembly—
(a)
have freedom of speech in the Assembly and
in its committees, subject to its rules and orders; and
(b)
are not liable to civil or criminal
proceedings, arrest, imprisonment or damages for—
(i)
anything that they have said in, produced
before or submitted to the Assembly or any of its committees; or
(ii)
anything revealed as a result of anything
that they have said in, produced before or submitted to the Assembly
or any of its committees.”
In the case of the
National Council of Provinces, section 71(1) provides for the
freedom similarly.
[4]
4 of 2004.
[5]
Section 11 provides:
“
A
person who creates or takes part in any disturbance in the precincts
while Parliament or a House or committee is meeting, may
be arrested
and removed from the precincts, on the order of the Speaker or the
Chairperson or a person designated by the Speaker
or Chairperson, by
a staff member or a member of the security services.”
In terms of section 2(1)
of the Act:
“
[t]he
precincts of Parliament is the area of land and every building or
part of a building under Parliament’s control, including—
(a)           the
chambers in which the proceedings of the Houses are conducted
and
the galleries and lobbies of the chambers;
(b)
every part of the buildings in which the chambers are situated,
and
every forecourt, yard, garden, enclosure or open space appurtenant
thereto;
(c)
committee rooms and other meeting places provided or used primarily

for Parliament’s purposes; and
(d)
every other building or part of a building provided or used in

connection with the proceedings of Parliament, while so used.”
[6]
Democratic Alliance v Speaker of the National
Assembly and Others
[2015] ZAWCHC 60
;
2015 (4) SA 351
(WCC) (High Court judgment) at para 48.  The
High Court ordered:
“
1.
The application succeeds with costs.
2.
Section 11 of the Powers, Privileges and Immunities of
Parliament
and Provincial Legislatures Act 4 of 2004 is declared inconsistent
with the Constitution and invalid ‘to the
extent that it
permits a member to be arrested for conduct that is protected by
sections 58(1)(b) and 71(1)(b) of the Constitution’
.
3.
The order in paragraph 2 is suspended for a period of
12 months in
order for Parliament to remedy the defect.
4.
The orders in paragraphs 2 and 3 above are referred,
in terms of
section 15(1)(a)
of the
Superior Courts Act 10 of 2013
, to the
Constitutional Court for confirmation.
5.
The respondents are to pay the costs occasioned by the
employment of
two counsel, jointly and severally, the one to pay the other to be
absolved.”
[7]
The Speaker of the National Assembly, the
Chairperson of the National Council of Provinces and the Government
of the Republic
of South Africa.
[8]
In terms of section 199(1) of the Constitution,
security services comprise “a single defence force, a single
police service
and any intelligence services established in terms of
the Constitution”.
[9]
See above n 6.
[10]
Above n 1.
[11]
Democratic Alliance and Another v Masondo NO
and Another
[2002] ZACC 28
;
2003 (2)
SA 413
(CC); 2003 (2) BCLR 128 (CC) (
Masondo
)
at para 42.
[12]
Section 43(a) of the Constitution provides that
“[i]n the Republic, the legislative authority . . . of the
national sphere
of government is vested in Parliament”.
[13]
Oriani-Ambrosini v Sisulu, Speaker of the
National Assembly
[2012] ZACC 27
;
2012
(6) SA 588
(CC); 2013 (1) BCLR 14 (CC) at para 43.
[14]
Masondo
above n
11 at para 43.
[15]
Id.
[16]
Cool Ideas 1186 CC v Hubbard and Another
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC)
(
Cool Ideas
)
at para 28.
[17]
Sections 1-27.  From section 28, the Act
deals with Provincial Legislatures.
[18]
Examples of sections that contain “person”
are 4-5, 7-8, 11-2, 14-9, 21-2 and 24-7.
[19]
Section 8(1) stipulates:
“
A
person may not by fraud, intimidation, force, insult or threat of
any kind, or by the offer or promise of any inducement or
benefit of
any kind, or by any other improper means—
(a)
influence a member in the performance of
the member’s functions as a member;
(b)
induce a member to be absent from
Parliament or
a
House or committee; or
(c)
attempt to compel a member to declare
himself or herself in favour of or against anything pending before
or proposed or expected
to be submitted to Parliament or a House or
committee.”
[20]
Sections 14-6.
[21]
This is in terms of section 13(b) read with
section 17(1)(b).
[22]
Section 17(1) and (2) provides:
“
(1)
A person who—
(a)
has been duly
summonsed in terms of section 14 and who fails, without
sufficient
cause—
(i)
to
attend at the time and place
specified in the summons; or
(ii)
to remain in
attendance until excused from further attendance by the
person
presiding at the enquiry;
(b)
when called
upon under section 15(a), refuses to be sworn in or to
make an
affirmation as a witness; or
(c)
fails,
without sufficient cause—
(i)
to answer fully and satisfactorily all questions lawfully
put to him
or her under section 15(b); or
(ii)
to produce
any document in his or her possession or custody or under
his or her
control which he or she has been required to produce under section
15(b),
commits
an offence and is liable to a fine or to imprisonment for a period
not exceeding 12 months or to both the fine and
the
imprisonment.
(2)
A person who—
(a)
threatens or obstructs another person in respect of evidence to
be
given before a House or committee;
(b)
induces another person—
(i)
to
refrain from giving evidence to or producing a document before
a
House or committee; or
(ii)
to give false
evidence before a House or committee;
(c)
assaults or
penalises or threatens another person, or deprives that
person of
any benefit, on account of the giving or proposed giving of evidence
before a House or committee;
(d)
with intent
to deceive a House or committee, produces to the House
or committee
any false, untrue, fabricated or falsified document; or
(e)
whether or
not during examination under section 15, wilfully furnishes
a House
or committee with information, or makes a statement before it, which
is false or misleading,
commits an offence and is
liable to a fine or to imprisonment for a period not exceeding two
years or to both the fine and imprisonment.”
[23]
Section 13(b) provides:
“
A
member is guilty of contempt of Parliament if the member—
. . .
(b)
commits an act mentioned in section 17(1)(a), (b) or (c) or (2)(a),

(b), (c), (d) or (e).”
[24]
An example is section 5, which provides:
“
A
person may not within the precincts—
(a)
execute or
serve or tender for service any summons, subpoena or other
process
issued by a court; or
(b)
except as
authorised by section 4 or 11, arrest another person,
without
the express permission of, or in accordance with the directives of,
the Speaker or the Chairperson or a person authorised
by the Speaker
or the Chairperson.”
The first mentioned person
is not a member, or would not be acting as a member in performing
the functions referred to in (a)
and (b) of the section.
[25]
An example is section 25(1), which entitles a
person “other than a member” who feels aggrieved by a
statement or remark
made by a member or a witness in or before a
House or committee about that person to submit a written request to
the Secretary
to have a response recorded.
[26]
Bertie Van Zyl (Pty) Ltd and Another v
Minister for Safety and Security and Others
[2009] ZACC 11
; 2010 (2) SA 181 (CC);
2009 (10) BCLR 978
(CC)
(
Bertie Van Zyl
)
at para 32.
[27]
Hoban v ABSA Bank Ltd t/a United Bank and
Others
[1999] ZASCA 12
;
1999 (2) SA
1036
(SCA) at para 20.
[28]
Cool Ideas
above
n 16.
[29]
I deal later with the nature of disturbance the
section is addressing.
[30]
Kubyana v Standard Bank of South Africa Ltd
[2014] ZACC 1
;
2014 (3) SA 56
(CC);
2014 (4) BCLR 400
(CC) at
para 18.
[31]
University of Cape Town v Cape Bar Council and
Another
1986 (4) SA 903
(A) at
914D-E.  This case was quoted with approval in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
[2004] ZACC 15
; ;
2004 (4)
SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 90, which – in
turn – was approvingly quoted in
Department
of Land Affairs and Others v Goedgele
gen
Tropical Fruits (Pty) Ltd
[2007] ZACC 12
[2007] ZACC 12
; ;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC)
at para 52.
[32]
Compare
Cool Ideas
above n 16 on the principle that words must be given their ordinary
grammatical meaning unless that would lead to an absurdity.
[33]
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others In re: Hyundai
Motor Distributors (Pty) Ltd and Others v Smit
NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai
)
at para 23.
[34]
See also
Richter v
Minister of Home Affairs and Others
[2009] ZACC 3
;
2009 (3) SA 615
(CC);
2009 (5) BCLR 448
(CC) at paras
62-3;
S v Singo
[2002] ZACC 10
;
2002 (4) SA 858
(CC);
2002 (8) BCLR 793
(CC) at
para 15; and
Mistry v Interim Medical
and Dental Council and Others
[1998]
ZACC 10
;
1998 (4) SA 1127
(CC)
[1998] ZACC 10
; ;
1998 (7) BCLR 880
(CC) at para
32.
[35]
Hyundai
above n
33.
[36]
Id at para 24.
[37]
See
Hyundai
above n 33, and
Cool Ideas
above n 16.
[38]
Section 16(1) of the Constitution provides:
“
Everyone
has the right to freedom of expression, which includes—
(a)
freedom of
the press and other media;
(b)
freedom to
receive or impart information or ideas;
(c)
freedom of
artistic creativity; and
(d)
academic
freedom and freedom of scientific research.”
[39]
Section 12(1) of the Constitution provides:
“
Everyone
has the right to freedom and security of the person, which includes
the right—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private

sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.”
[40]
The minority judgment at [117].
[41]
Section 57 provides:
“
(1)
The National Assembly
may—
(a)           determine
and control its internal arrangements, proceedings and procedures;

and
(b)           make
rules and orders concerning its business, with due regard to

representative and participatory democracy, accountability,
transparency and public involvement.
(2)
The rules and
orders of the National Assembly must provide for—
(a)           the
establishment, composition, powers, functions, procedures and

duration of its committees;
(b)           the
participation in the proceedings of the Assembly and its committees

of minority parties represented in the Assembly, in a manner
consistent with democracy.”
The equivalent
constitutional provision applicable to the National Council of
Provinces is section 70.
[42]
De Lille
above n
2 at para 16.
[43]
De Lille
above n
2 at para 20.
[44]
Above [38].
[45]
Compare
Abahlali
Basemjondolo Movement SA and Another v Premier of the Province of
Kwazulu-Natal and Others
[2009] ZACC
31
;
2010 (2) BCLR 99
(CC) at para 118.
[46]
Hyundai
above n
33.
[47]
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at paras
17-8.
[48]
Section 84(2)(a) of the Constitution.
[49]
Section 84(2)(b) of the Constitution.
[50]
Section 84(2)(c) of the Constitution.
[51]
In respect of the National Assembly the relevant
section is 58(1)(a) read with section 57(1)(b); and in respect of
the National
Council of Provinces it is section 71(1)(a) read with
section 70(1)(b).
[52]
Qualified concurrence at [80].
[53]
Id.
[54]
Rule 51 provides:
“
If
the presiding officer is of the opinion 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 immediately from the Chamber
for the remainder of the day’s sitting.”
Rule 53A reads:
“
(1)
If a member refuses to leave the Chamber
when ordered to do so by the presiding officer in terms of Rule 51,
the presiding officer
must instruct the Serjeant-at-Arms to remove
the member from the Chamber and the precincts of Parliament
forthwith.
(2)
If the Serjeant-at-Arms is unable in person to effect the removal
of
the member, the presiding officer may call upon the Parliamentary
Protection Services to assist in removing the member from
the
Chamber and the precincts of Parliament.
.
. .
(10)
If a member(s) offers resistance to being removed from the precincts
[by
the Serjeant-at-Arms or Parliamentary Protection Services],
members of the security services may be called upon to assist with

such removal.”
[55]
Indicating the insertion with italics, the
section will then read:
“
A
person
other than a member
who creates or takes part in any disturbance in the precincts while
Parliament or a House or committee is meeting, may be arrested
and
removed from the precincts, on the order of the Speaker or the
Chairperson or a person designated by the Speaker or Chairperson,
by
a staff member or a member of the security services.”
[56]
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others
[1999] ZACC 17
[1999] ZACC 17
; ;
2000
(2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (
National Coalition
).
[57]
Id at para 74.
[58]
Compare id at para 75.
[59]
Compare id where – instead of purpose –
reference is made to the legislative scheme.
[60]
In n 54 above, this judgment refers to rules 51
and 53A which enable Parliament to deal with errant members.  I
should not
be understood to be pronouncing on the constitutional
validity of these rules.
[61]
Id.
[62]
[40] - [41] of the main judgment.
[63]
[54] of the main judgment.
[64]
I include conduct that constitutes
forms of
expression other than speech
.
[65]
The Oxford English Dictionary
2
ed
(Clarendon Press, Oxford, 1989) vol 1 at 648.
[66]
Black’s Law Dictionary
8
ed (West Group, 2004) at 116.
[67]
Stroud’s Judicial Dictionary of Words
and Phrases
8 ed (Sweet & Maxwell,
London, 2012) vol 1 at 201.
[68]
59 of 1959.
[69]
Bid Industrial Holdings (Pty) Ltd v Strang and
Another (Minister of Justice and Constitutional Development, Third
Party)
[2007] ZASCA 144
;
2008 (3) SA
355
(SCA) at para 59.
[70]
105 of 1983.
[71]
51 of 1977.
[72]
The section extends the ordinary meaning of
arrest by providing that an arrest is effected, if the person does
not submit to custody,
merely by touching his or her body.
[73]
See, for example,
Duncan
v Minister of Law and Order
1986 (2)
SA 805
(A) at 820 B D; and
Tsose v
Minister of Justice and Others
1951
(3) SA 10
(AD) at 17A-H, in relation to Act 31 of 1917, a
predecessor of Act 51 of 1977.
[74]
Contravening section 7 of the Act, which carries a potential penalty
up to three years’ imprisonment without the option
of a fine,
is a Schedule 1 offence.
[75]
Section 4 provides:
“
(1)
Members of the security services may—
(a)
enter upon, or remain in, the precincts for the purpose of

performing policing function; or
(b)
perform any policing function in the precincts, only with the
permission
and under the authority of the Speaker or the
Chairperson.
(2)
When there is immediate danger to the life or safety of any person

or damage to any property, members of the security services may
without obtaining such permission enter upon and take action
in the
precincts in so far as it is necessary to avert that danger.
Any such action must as soon as possible be reported
to the Speaker
and the Chairperson.”
[76]
Above n 4.
[77]
Rule 6(5) of the Uniform Rules of the High Court
permits this course.
[78]
Section 199(7) provides:
“
Neither
the security services, nor any of their members, may, in the
performance of their functions—
(a)
prejudice a political party interest that is legitimate in terms
of
the Constitution; or
(b)
further, in a partisan manner, any interest of a political party.”
[79]
High Court judgment above n 6 at paras 20-4.
[80]
Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others In re: Hyundai
Motor Distributors (Pty) Ltd and Others v Smit
NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC);
2000 (10) BCLR 1079
(CC) (
Hyundai
Motor Distributors
).
[81]
Natal Joint Municipal Pension Fund
v
Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA)
.
[82]
High Court judgment above n 6 at para 22.
[83]
Id at para 30.
[84]
Above n 80 at para 24.
[85]
Section 3 provides:
“
The
Speaker and the Chairperson, subject to this Act, the standing rules
and resolutions of the Houses, exercise joint control
and authority
over the precincts on behalf of Parliament.”
[86]
Head of Department: Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC)
(
Hoërskool Ermelo
).
[87]
Id at para 70.
[88]
A court process is usually served by a sheriff or
a police officer.
[89]
The Chapter is titled: “Privileges,
Immunities, Independence, and Protection of Members and Parliament”.
[90]
Main judgment at [33].
[91]
Section 2(2) of the Act provides:
“
In
so far as it may be necessary for the achievement of the objects of
this Act in a case where a House or committee convenes
beyond the
seat of Parliament, this Act applies as if the premises where the
House or committee is sitting were within the precincts
of
Parliament.”
[92]
Main judgment at [27] – [29].
[93]
Section 25(1) provides:
“
A
person, other than a member, who feels aggrieved by a statement or
remark made by a member or a witness in or before a House
or
committee about that person, may submit a written request to the
Secretary to have a response recorded.”
[94]
De Lille
above n
2 at para 22.
[95]
Id at para 16.
[96]
SATAWU and Others v
Moloto
NO
and Another
[2012] ZACC 19;
2012
(6) SA 249
(CC);
2012 (11) BCLR 1177
(CC) (
SATAWU
)
at paras 44 and 53.
[97]
National Coalition
above
n 56 at para 23.
[98]
Govender
v
Minister of Safety and Security
[2001]
ZASCA 80
;
2001 (4) SA 273
(SCA) at para 9
.
[99]
Section 49(1)
of the
Criminal Procedure Act 51 of
1977
reads:
“
(1)
If any person authorized
under this Act to arrest or to assist in arresting another,
attempts
to arrest such person and such person—
(a)
resists the attempt and cannot be arrested without the use of
force;
or
(b)
flees when it is clear that an attempt to arrest him is being
made,
or resists such attempt and flees,
the person so authorized
may, in order to effect the arrest, use such force as may in the
circumstances be reasonably necessary
to overcome the resistance or
to prevent the person concerned from fleeing.”
[100]
Matlou v Makhubedu
1978 (1) SA 946
(A);
Mazeka v Minister
of Justice
1956 (1) SA 312
(A); and
R
v Britz
1949 (3) SA 239
(A), cited in
Govender
above n 98 at para 16.
[101]
Ex Parte Minister of Safety and Security and
Others: In Re
S
v Walters
and
Another
[2002] ZACC 6
; 2002 (4)
SA 613 (CC)
[2002] ZACC 6
; ;
2002 (7) BCLR 663
(CC) (
S
v Walters
) at para 39.
[102]
Phumelela
Gaming
and Leisure Limited v Grundlingh and Others
[2006]
ZACC 6
;
2007 (6) SA 350
(CC);
2006 (8) BCLR 883
(CC)
(
Phumelela
Gaming
) at para
27.