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[2014] ZAWCHC 204
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Economic Freedom Fighters and Others v Speaker of the National Assembly and Others (21471/2014) [2014] ZAWCHC 204 (23 December 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NUMBER
: 21471/2014
DATE
:
23 DECEMBER 2014
In
the matter between:
THE
ECONOMIC FREEDOM FIGHTERS
..................................
Applicants
AND
20 OTHERS
And
THE
SPEAKER OF THE
NATIONAL
.......................................
Respondents
ASSEMBLY
AND 3 OTHERS
J
U D G M E N T
DAVIS,
J
:
INTRODUCTION:
This
is an urgent application in which the applicants seek an interdict
directed at preventing the Speaker of the National Assembly
(‘the
first respondent’) from implementing or enforcing the decision
of the National Assembly of 27 November 2014,
which interdict
would prevent the imposition of the sanction of
suspension of membership without remuneration
or a fine in respect of
the 2
nd
to the 21
st
applicants respectively. This relief is sought pending the
outcome of a final order which the applicants seek and which is
set
out in part B of this application.
There
are a number of other prayers which are contained in part B and which
relate,
inter alia,
to President JG Zuma, as well as Speaker Mbete (“the second
respondent”). These issues are not before this Court.
This Court is only concerned with the application for interim
relief. I should add that some of the relief in part B falls
within the exclusive jurisdiction of the Constitutional Court in
terms of section 167(4)(e) of the Republic of South Africa
Constitution
Act 108 of 1996 ( ‘the Constitution’).
This
provision states that only the Constitutional Court can decide
whether Parliament or the President have failed to fulfil a
constitutional obligation. It is for this reason that I do not
propose to set out any time table for the manner in which
part B
should be litigated and to which Court the application should
be directed. These are matters which the parties
will have to
decide for themselves.
I
should add further that this application came to this Court in recess
duty and as a matter of urgency. I was given to understand
that by the time the application reached me as a senior duty Judge,
an application had been made for direct access to the Constitutional
Court.
Upon
ascertaining that I was obliged to hear this urgent application, as
is always the case when judges are on duty (they obviously
have to
determine whether the matter passes the test of urgency), the
Constitutional Court indicated that the
preferred
course was that this application be heard by this Court.
Although this application is only for interim relief,
the modesty of
the relief should not disguise the broader democratic principles
which are raised pursuant to this dispute.
It
is probably understandable, given our long authoritarian, racist and
sexist history, that twenty years of democracy is a relatively
short
time to have developed a certainty concerning the contours of
constitutional democracy. It is not surprising therefore
that
in this period of constitutional adolescence the boundaries of
constitutionalism had been increasingly tested in recent times
by a
plethora of litigation, a move from political warfare to lawfare. For
a luminous exposition of these concepts, see John and
Jean Comaroff
Law and Disorder in
the Postcolony
(2006 ) particularly Chapter1 . Judges find that their
institution is now in the front lines and must, under considerable
pressure, construct a working theory to guide their institution as to
whether to accede or refuse the demands for what often appears
to be
heavy political lifting.
The
limits of the judicial function in these highly contested cases often
prove difficult to determine. This is such a case,
for
Parliament is surely best placed to decide upon the framework for the
conduct of its own business. For this reason, I
commence this
judgment by setting out the guidelines that I must follow in order to
develop my own working theory As is the case
with the judiciary,
these guidelines must be sourced in the only document which can guide
a Court, that is the Constitution.
Parliament
is the legislative arm of government. Its work is conducted by
representatives of the people. Parliamentary
representatives
participate in the key processes of producing legislation in their
capacity as representatives of the people.
The principle of
representative government is weakened and ultimately denied if
Parliamentary representatives are precluded from
such participation.
As Ngcobo, J (as he then was) reminds us in
Doctors
for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC) at para 36 of his magisterial judgment:
“
Parliament
has a very special role to play in our constitutional democracy –
it is the principal legislative organ of the
State. With due
regard to that role it must be free to carry out its functions
without interference. To this extent
it has the power to
“determine and control its internal arrangements proceedings
and procedures”. The business
of Parliament might well be
stalled while the question of what relief should be granted is argued
out in the Courts. Indeed
the parliamentary process would be
paralysed if Parliament were to spend its time defending its
legislative process in the Courts.
This would undermine one of
the essential features of our democracy: the separation of powers.
The
constitutional principle of separation of powers requires that other
branches of government refrain from interfering in parliamentary
proceedings. This principle is not simply an abstract notion.
It is reflected in the very structure of our government.”
However,
there is another principle that is equally at work in cases such as
the present application. This principle was best
articulated by Mohomed, CJ in
Speaker of
the National Assembly v De Lille And Another
1999 (4) SA 863
(SCA) at para 14:
“
This
enquiry must crucially rest on the Constitution of the Republic of
South Africa Act 108 of 1996. It is Supreme –
not
Parliament. It is the ultimate source of all lawful authority
in the country. No Parliament, however bona fide
or eminent its
membership, no President, however formidable be his reputation or
scholarship and no official, however efficient
or well-meaning can
make any law or perform any act which is not sanctioned by the
Constitution. Section 2 of the Constitution
expressly provides
that law or conduct inconsistent with the Constitution is invalid and
the obligations imposed by it must be
fulfilled. It follows
that any citizen adversely affected by any decree, order or action of
any official or body, which is
not properly authorised by the
Constitution is entitled to the protection of the Courts. No
Parliament, no official and no
institution is immune from judicial
scrutiny in such circumstances.”
These
are the critical principles which must guide adjudication in this
case Armed therewith, I now turn to the facts.
MATERIAL
FACTS:
I
propose to deal with common cause facts and those
which are not denied by respondents .First applicant is a
political
party. It is the third largest party represented in the
National Assembly. The second to twenty first applicants
are
public representatives, representing the EFF as members of Parliament
in the National Assembly. On 27 November 2014 these
applicants
were found guilty of certain transgressions by the National Assembly
and a decision was taken regarding their suspension
from office.
Sanctions were imposed as follows:
(1)
A withdrawal of benefits equal to 14
days salary (Category C).
(2)
Suspension from membership of the
National Assembly without pay for a period of 14 days (Category B).
(3)
Suspension without pay as a member of the
National Assembly for a period of 30 days (Category A).
The
following members were in category A: second, third, fourth,
fifth, sixth and seventh applicants. The following
members were
in category B: eighth, ninth, tenth, eleventh, twelfth and thirteenth
applicants. The following members were
in category C:
fourteenth, fifteenth, sixteenth, seventeenth, eighteenth,
nineteenth, twentieth and twenty first. Category
B suspensions
lapsed on 15 December 2014. Category A suspensions will lapse
on 28 December 2014.
The
background to these events began on 21 August 2014. President
Zuma was scheduled to answer questions at the National Assembly
pursuant to the provisions of Rule 111 of the Rules of the National
Assembly. One of the questions pertained to the implementation
of the findings of the remedial action prescribed by the Public
Protector in a report of March 2014 into the so-called Nkandla
issue. The President answered the question posed as
follows:
“
Honourable
Speaker, as the Honourable members are aware my response to all the
reports on the security upgrades of my private residence
were
submitted to the Speaker on Thursday last week, 14 August 2014.
I thank you.”
According
to Mr Ntzebeza, who appeared together with Mr Ngcukaitobi on behalf
of the applicants, the President’s answer was
“unintelligible”. In Mr Ntzebeza’s view the
consequences were therefore unavoidable. Second applicant,
as
the leader of the first applicant, was, in counsel’s view,
compelled to raise a follow-up question. According to
the
record of the debate as contained in Hansard, second applicant said
the following:
“
Mr
President, we are asking this question precisely because you have not
provided the answer. Firstly, you failed to meet
the 14 days of
the Public Protector and secondly, when you responded you were
telling us that the Minister of Police must still
decide who must
pay. In our view the report of the Public Protector supersedes
any other formal report which you might be
expecting somewhere else,
so the question we’re asking you today and we’re not
going to leave here before we get an
answer .. is when are you paying
the money because the Public Protector has instructed you that you
must pay the money and we want
the date of when you are paying the
money?”
The
President then gave the following answer:
“
The
issue for example that the Honourable member is referring to is a
matter that arises in the recommendations of the Public Protector
and
I am saying the people who did the upgrades at the Nkandla, they are
the ones who always determine who pays, when to pay.
It is the
government that decides and the matter is referred to people who are
legally authorised to make that determination.”
Mr
Ntzebeza was equally critical of this reply. He said that this
reply was “meaningless”. Mr Ntzebeza contended
that
second respondent was then required to obtain a proper or
meaningful response from the President. Mr Ntzebeza
submitted
further that instead of so proceeding, she purportedly proceeded to
recognise another member of the National Assembly,
in this case Mr
Bantu Holomisa and asked him to address the House. An
unidentified member of the ANC then interjected, followed
by Mr Floyd
Shivambu, the third applicant, who raised a point of order.
At
this point the Speaker signalled to the President that he had the
floor if he wished to add anything to his reply. The
President
said:
“
I
have answered, I have answered the question.”
The
record in Hansard then reflects a number of attempts by members of
the first applicant to draw the attention of second respondent
to
what they considered to be the inadequacy of the reply given by the
President. In their view, second respondent refused
to
recognise them. At one point, third applicant said the
following:
“
And
he has not answered the question of when he is paying the money.
That is what ... for him.”
The
Speaker:
“
Honourable
Shivambu, I will throw you out of the House. I will throw you
out of the House if you don’t listen.
Honourable
Holomisa, please.”
Further
objections then followed. The following passage is
significant:
“
Mr
GA Gardie: Honourable Speaker the issue here is about the
money.
The
Speaker: Take your seats Honourable members. Take your
seats, take your seats. I will have to ask the sergeant
at arms
to take out members who are not serious about this sitting.”
Mr
Ndlozi, the sixth applicant, attempted to speak. He was
instructed by second respondent to take his seat. At this
point
the second respondent, according to Hansard, instructed the sergeant
at arms to:
“
Please
assist me with relieving the members of the House who are not serious
about this sitting to take their leave.”
Security
was called. The business of the House was suspended. The
applicants, in their founding affidavit, allege that
the banging on
the tables and the chanting and the exortation on the President to
“pay back the money” occurred after
the Speaker had
adjourned the House and suspended its business for the day.
Specifically, they allege that the suspension
of the National
Assembly and therefore of the business of the day, did not result
from the chanting and singing by members of the
first applicant
demanding that the President should ‘pay back the money’.
Significantly,
in her answering affidavit, second respondent makes no mention
thereof, that is she does not deal with the allegation
that the
banging of the tables and the chanting that happened occurred after
the House had been suspended. It must follow
that, given that
these specific averments in the founding affidavit were not gainsaid,
they should form part of the factual matrix
that I am obliged to
consider.
I
should add that second respondent referred to a video recording
(annexure B to a letter of referral) but I was not provided with
a
copy thereof. I cannot therefore take cognisance of exactly
what occurred because I do not have the video to which second
respondent refers. It was not made part of my record.
I
am therefore obliged to accept applicant’s version in respect
of when “the banging on the tables” took place.
On
26 August 2014 the second respondent referred an allegation of “gross
disorder” to the Powers and Privileges Committee
(“the
committee) for investigation. The allegations were all brought
against the second to the twenty first applicants.
The
committee is a standing committee of Parliament. It is
constituted on the basis of proportional representation.
It
comprises 11 members, six from the ANC, two from the Democratic
Alliance, one from first applicant, one from the Inkatha Freedom
Party and one from the United Democratic Movement. It appears
that, since the member of the first applicant, who sits on
the
committee, was also charged with misconduct, the first
applicant was not represented at the committee. A
total of 7
charges were preferred against the applicants.
Charge
one:
“
It
is alleged that you are guilty of conduct constituting contempt of
Parliament in terms of section 13(a) of the Powers, Privileges
and
Immunities of Parliament and Provincial Legislative Act 4 of 2004
(“The Act”) and that as a member of Parliament
and
“during question to the President” in the NA on 21 August
2014 you contravened section 7(a) of the Act by improperly
interfering with or impeding the exercise or performance by the
National Assembly (“The House”) of its authority or
functions when you refused to obey the instructions of the Speaker
that you take your seat. This conduct impeded the House
from
performing its function of exercising oversight over the executive by
posing questions the President and continuing with its
business for
the day”.
In
this connection, the charges were levelled against third applicant,
fourth applicant, fifth applicant, sixth applicant and seventh
applicant.
Charge
two was levelled against second third, fourth, fifth, sixth, seventh
applicants:
“
It
is alleged that you are guilty of conduct constituting contempt of
Parliament in terms of section 13(c) of the Act in that as
a member
of Parliament and during “Questions to the President” in
the National Assembly on 21 August 2014 you wilfully
failed and / or
refused to obey Rule 51 and Rule 53(1), read together of the Rules of
the National Assembly in that you refused
to withdraw immediately
from the chamber for the remainder of the day’s sitting when
you were ordered to do so by the Speaker.”
Charge
three: brought against third, fourth and seventh applicants read as
follows:
“
It
is alleged that you are guilty of conduct constituting contempt of
Parliament in terms of section 13(a) of the Act in that as
a member
of Parliament and during “questions to the President” in
the National Assembly on 21 August 2014, you contravened
section 7(b)
of the Act by improperly interfering with or impeding the performance
by a member of his or her functions, as a member
in the following
manner: when the Speaker requested Mr B H Holomisa (a member of
Parliament) to pose a question (i.e. a supplementary
question) to the
President, your conduct prevented Mr Holomisa and others members of
Parliament who might have wished to ask the
President further
questions from asking their question / s, thereby preventing them
from performing one of their functions as a
member of Parliament
(namely, to hold the Executive to account by asking the President
questions).”
Charge
four which was levelled against third and fourth applicants reads:
“
It
is alleged that you are guilty of conduct constituting contempt of
Parliament in terms of section 13(c) of the Act in that as
a member
of Parliament and during “Questions to the President” in
the National Assembly on 21 August 2014, you wilfully
failed and / or
refused to obey Rule 49 of the Rules of the NA by failing to resume
your seat when the Speaker rose while you were
speaking or offering
to speak and thereby preventing the Speaker from being heard without
interruption.”
Charge
five, levelled against seventh, third, fourth, fifth and second
applicants, reads:
“
It
is alleged that you are guilty of conduct constituting contempt of
Parliament in terms of section 13(c) of the Act in that as
a member
of Parliament and during “Questions to the President” in
the National Assembly on 21 August 2014, you wilfully
failed and / or
refused to obey Rule 72 of the Rules of the NA by speaking when you
were not called upon to do so by the presiding
officer (i.e. the
Speaker) and / or without the Speaker recognising you.”
Charge
six, which was levelled against second, third, fourth, fifth, sixth,
ninth, eighth, seventh, eleventh, thirteenth, tenth
and twelfth
applicants, reads:
“
It
is alleged that you are guilty of conduct constituting contempt of
Parliament in terms of section 13(a) of the Act in that as
a member
of Parliament and during “Questions to the President” in
the National Assembly on 21 August 2014, you contravened
section 7(e)
of the Act by creating or taking part in disturbance within the
precincts of Parliament while the House was meeting
by
inter
alia
shouting and / or banging on the
tables and / or refusing to obey the Speaker’s instructions and
/ or generally conducting
yourself in a grossly disorderly manner,
thereby interfering with or disrupting the proceedings of the House,
forcing the Speaker
to suspend proceedings temporarily and ultimately
to adjourn the sitting for the day.”
Charge
seven, which was brought against all of the affected members read
thus:
“
It
is alleged that you are guilty of conduct constituting contempt of
Parliament in terms of section 13(a) of the Act in that as
a member
of Parliament during “Questions to the President” in the
National Assembly on 21 August 2014, you contravened
section 7(a) of
the Act by improperly interfering with or impeding the exercise or
performance by the National Assembly (the House)
of its authority or
functions by remaining in the chamber after the sitting of the House
had been temporarily suspended by the
Speaker, so that you could
leave alternatively to be removed from the chamber in order for the
House to continue with its business
of the day. Your refusal to
leave the Chamber resulted in the House being adjourned for the day.”
The
first sitting of the committee took place on 7 October 2014. On
that day second applicant appeared before the committee.
Second applicant made representations on behalf of the applicants. In
summarising these representations, suffice to observe that
they were
directed to the following effect:
(1)
First applicant denied guilt on the charge
of the misconduct. Specifically it stated its members were
denied an opportunity
to gain a meaningful reply from the President
on the question which had been posed. Members of first
applicant were never
identified individually with the instruction to
leave the premises of the House.
(2)
The composition of the committee was also
attacked. In this regard it was submitted that an announcement
had been made
publically by the Secretary General of the ANC,
Mr Gwede Mantashe, on the need for Parliament to act harshly towards
first applicant
.In the view of the first applicant ,this
announcement by so senior a member of the ruling party could
have improperly
influenced members of the committee.
(3)
At stake, according to the first applicant,
was the issue of executive accountability. An objection was
taken to implement
the disciplinary measures which , in
applicants view , were effectively being used to settle a political
matter pertaining
to executive accountability. First applicant
also expressed its concern with regard to selective prosecution.
It alleged
that members of the ANC who could potentially have also
been found guilty of the same offences together with members of the
first
applicant, were not charged and were therefore “let off
the hook”. The conduct of the second respondent, the
Speaker, it was averred by the first applicant, should also have
formed part of the investigation. In support thereof first
applicant cited two instances. Firstly, second respondent
had been responsible for the interruption in the proceedings
on 21
August 2014 by failing to recognise members of the first applicant
who wished to raise points of order. First applicant
averred
that she showed favouritism towards ANC members when no legitimate
points of argument were raised by them. Secondly,
first
applicant averred that second respondent had “lied to the
National Assembly” in claiming that she had not
called the
police when the facts showed that she in fact had invited the police
into the National Assembly and instructed them
to eject members of
the first applicant.
In
addition the following significant passage appears from these
representations made by the second applicant:
“
We
want to remind you that in terms of section 13(5)(g) of the Powers
and Privileges Act, the harshest sentence you can impose on
us is
suspension for 30 days without pay and further, section 13(9)
provides that such can only be considered after all other sentences
in subsection 5(a) to (e) have been considered. The other
sentences are as follows:
(a)
A formal warning.
(b)
A reprimand.
(c)
An order to apologise to Parliament or the
House or any person in a manner determined by the House.
(d)
The withholding for a specified period of
the members’ rights to use or enjoyment of any specified
facility provided to members
of Parliament.
(e)
A fine not exceeding the equivalent of one
month’s salary and allowances.”
According
to the report of the committee, the committee considered and accepted
the legal opinion of the parliamentary
legal adviser that
these submissions did not constitute evidence in terms of items 7 and
8 of the Schedule which deal with the
hearing. It was claimed
that “these representations were not made under
oath and thus could not be questioned
by the members of the
committee, the chairperson, the initiator and the charged member,
whether directly or through their legal
representatives.”
A
report titled “The Report of the Powers and Privileges
Committee of the National Assembly on the hearing into allegation
of
misconduct constituting contempt of Parliament by members of the
National Assembly” was then prepared by the committee.
The report made the following findings: category A members were
found guilty of between four to seven charges and suspended
for 30
days without pay; that is second to seventh applicants.
Category B members were found guilty on two charges and were
suspended to 14 days without pay; that is eighth to thirteenth
applicants. Category C members were found guilty of one charge
and fined an equivalent of 14 days salary. That is fourteenth
to twenty first applicants.
The
report was then adopted by the National Assembly on 27 November 2014
by a majority vote. The decision of the committee
was then
conveyed to the individual applicants on 28 November 2014. It
is these decisions which are the subject matter of
this challenge.
It
is important to emphasise at this stage as to what this case does not
concern. It does not require the Court to determine
whether the
conduct of the applicants was deserving of the sanctions that were
imposed. That is for another Court which may
have the benefit
of a far more comprehensive affidavit from the second respondent,
including the benefit of the video .An affidavit
of less than
fourteen pages much of which deals with the conduct of
the Speaker clearly needed amplification
.
This
case does concern the complaints raised by the applicants to
whether President Zuma should have been required by second
respondent
to provide an answer that was, in the view of the applicants, more
satisfactory and comprehensive. This Court is not
required to make
any determination on these questions. Its sole role is to
examine the facts by way of the affidavits
submitted and
then apply the requirements for interim relief .Accordingly,
this judgment can only be construed within this
specific context.
With this in mind, I now turn to the law relating to interim
relief.
GENERAL
PRINCIPLES:
The
test for granting interim relief has recently been set out in
National Treasury and Others v Opposition to Urban Tolling
Alliance and Others
2012 (6) SA 223
(CC) at para 4 in which the
Constitutional Court recorded the established
test thus :
“
The
test requires that an applicant that claims an interim relief must
establish (a) a
prima facie
right even if it is open to some doubt; (b) a reasonable apprehension
of irreparable and imminent harm to the right if an interdict
is not
granted; (c) the balance of convenience must favour the grant of the
interdict and; (d) the applicant must have no other
remedy.”
In
this judgment, the Court held, when weighing the balance of
convenience requirement, that:
“
A
Court must now carefully probe whether and to what extent the
restraining order will probably intrude into the exclusive terrain
of
another branch of government (para 47).”
However,
it noted that different considerations apply where:
“
The
harm apprehended by the claimant amounts to a breach of one or more
fundamental rights warranted by the Bill of Rights (para
47).”
The
Constitutional Court has provided further guidance in the case of
South African Informal Traders Forum and Others v City of
Johannesburg and Others; South African National Traders Retail
Association
v City of Johannesburg and Others
2014 (4) SA 371
(CC) at para 20 where Moseneke, DCJ confirmed the position that a
prima facie
right may be established by demonstrating
prospects of success on review.
When
granting interim relief, the following dicta of Du Plessis J as they
were set out in
Peconi v President
of the Republic of the South Africa and Others
2010 (1) SA 400
(GNP) at 403 should also be taken into account:
“
When
considering whether to grant or refuse an interim interdict, the
Court seeks to protect the integrity of the proceedings in
the main
case. The Court seeks to ensure as far as is reasonably
possible that the party who is ultimately successful will
receive
adequate and effective relief. The Court itself has an interest
to ensure that it will ultimately be in a position
to grant effective
relief to the successful party.”
I
turn therefore to deal with the first requirement, the
prima facie
right and intertwined therewith the question of prospects
of success on review.
Returning
to the guidelines to be employed, the starting point for any such
enquiry must be the Constitution and in particular section
1.
Section 1 provides that the Republic of South Africa is one
sovereign, democratic state founded on the following values….
(d) universal adult suffrage, a national common voters’ role,
regular elections and a multi-party system of democratic government
to ensure accountability, responsiveness and openness.
Section
1 is a majestic proclamation of that which we hold to be best for our
society. It proclaims the foundation of South
African society
to be constructed from the plans of the Constitution, that is a
democracy which is informed by core values of human
dignity,
equality, freedom, universal suffrage, multi-party democracy,
accountability, openness and transparency of government.
These
are not values upon which we should give up lightly.
These are values for which generations of South Africans
fought and
died. As a nation they are our autobiography .They must be
considered with the utmost seriousness by all South
Africans, no
matter their political persuasion. They call on all who
live in this country to see these values
as trumps
over any and all political affiliations.
The
next component in the analysis is section 19 of the Constitution.
Section 19(1) provides:
(1)
Every citizen is free to make political
choices which include the right to:
(a)
To form a political party.
(b)
To participate in the activities of or
recruit members for a political party and;
(c)
To campaign for a
political party or cause.
(2)
Every citizen has the right to free, fair
and regular elections for any legislative body established in terms
of the Constitution.
(3)
Every adult citizen has a right to:
(a)
To vote in elections for any legislative
body established in terms of the Constitution and to do so in secret
and;
(b)
To stand for public office and if elected
to hold office.
This
section enshrines the entitlement of every adult citizen to vote in
elections. It also enshrines the right for anyone
to stand for
public office and, if elected, to hold office. The right to
hold office does not mean the right to hold office
as and when any
party so permits. It enshrines the right to hold office,
notwithstanding what any majority may construe to
be the politically
preferred position. The right to hold office is to hold
office on behalf of those who voted
for this office bearer.
The
office bearers, that is the parliamentarians who are sent to
Parliament, are dispatched to that august House to
articulate the needs, views, political and economic attitudes
of their constituency ,that is the people who voted for them.
That is what democracy concerns. In
Ramaktsa and Others v
Magashule and Others
2013 (2) BCLR 202
(CC) Moseneke, DCJ in his
characteristically perceptive way provided the historical context for
the meaning of section 19 to which
I have made reference:
“
Differently
put, they were not only disenfranchised but also excluded from all
decision-making processes undertaken by the government
of the day,
including those affecting them. Many organisations whose
objectives were to advance the rights and interests
of black people
were banned. These organisations included the present ANC.
Participation in the activities of these
organisations constituted a
serious criminal offence that carried a heavy penalty. The
purpose of section 19 is to prevent
the wholesale denial of political
rights to citizens of the country from ever happening again”.
Read
within this historical and therefore interpretive prism, the purpose
of section 19 is to enable people to exercise their right
to vote in
the context of the existing political institutions, at the heart of
which are political parties. Political parties
elected to serve
in the National Assembly cannot be subservient to the whims of any
party
Speaking,
albeit in a different factual context I must concede, Moseneke, DCJ
said at paras 66 to 67of
Ramakatsa
:
“
In
the main, elections are contested by political parties. It is
these parties which determine lists of candidates who get
elected to
legislative bodies. Even the number of seats in the National
Assembly in provincial legislatures are determined
‘by taking
into account available scientifically based data and representations
by interested parties.
It
cannot be gainsaid that successful political parties in elections
lies in the policies they adopt and put forward as a plan for
addressing challenges and problems facing communities.
Participation in the activities of a political party is critical to
obtaining all of this. To enhance multi-party democracy the
Constitution has enjoined Parliament to enact national legislation
that provides for funding of political parties, represented in
national and provincial legislatures. Public resources are
directed at political parties for the very reason they are the
veritable vehicles the Constitution has chosen for facilitating
and
entrenching democracy.”
For
this reason it appears to me that when a sanction of suspension is
imposed on public representatives, the National Assembly
must have
very careful regard to the impact of this decision on the rights of
those people who are represented by the members,
that is the voters.
In this case, the National Assembly was surely required to take into
consideration that the suspension
of twelve members out of twenty
five from the third largest political party in South Africa would
weaken the party’s ability
to represent those citizens who
voted for them, albeit for a short period.
It
cannot be denied that these voters have the right to be represented
in Parliament by the representatives that they have so chosen.
To take away this right, albeit for a short period, requires
careful analysis. With this core democratic value in play, it
follows
that Courts are required to scrutinise these decisions with great
care.
The
third important provision which is relevant to this case is section
58(1)(a) of the Constitution which provides that cabinet
ministers,
deputy ministers and members of the National Assembly (a) have
freedom of speech in the Assembly and its committees
subject to its
rules and orders.
In
De Lille’s
case supra, at para 29 Mahomed, CJ said the
following about section 58:
“
The
right of free speech in the Assembly protected by section 58(1) is a
fundamental right, crucial to representative government
in a
democratic society. Its tenor and spirit must conform to all
other provisions of the Constitution relevant to the conduct
of
proceedings in Parliament.”
There
are further provisions which require analysis, that is the
empowering provisions which enable second respondent and,
in turn,
the National Assembly, to exercise the necessary discipline to ensure
that, however robust parliamentary debates may be,
they must take
place in a manner which permits the business of Parliament to be
conducted deliberatively and fairly.
In this regard, the
relevant legislation is the Powers, Privileges and Immunities of
Parliament and Provincial Legislative Act
4 of 2004. In
particular section 12 provides as follows:
(1)
Subject to this Act, the House has all the
powers which are necessary for enquiring into and pronouncing upon
any act or matter
declared by or under section 13 to be contempt of
Parliament by a member and taking the disciplinary action provided
therefore.
(2)
The House must appoint a standing committee
to deal with all enquiries referred to in subsection (1).
(3)
Before a House may take any disciplinary
action against a member in terms of subsection (1), the standing
committee must (a) enquire
into the matter in accordance with the
procedure that is reasonable and procedurally fair and; (b) table a
report on its findings
and recommendations in the House.
(4)
When a committee finds a member guilty of
contempt, the House may, in addition to any other penalty to which
the member may be liable
under the Act or any other law, impose any
one of the following penalties:
a.
A formal warning.
b.
A reprimand.
c.
An order to apologise to Parliament or the
House or any person in the manner determined by the House.
d.
The withholding for a specified period of
the member’s right to use or enjoyment of any specified
facility provided to members
of Parliament.
e.
The removal or the suspension for a
specified period of the member from any parliamentary position
occupied by the member.
f.
A fine not exceeding the equivalent of one
month’s salary and allowances payable to the member concerned
by virtue of the
Remuneration of Public Office Bearers Act 1998
.
g.
A suspension of the member with or without
remuneration for a period not exceeding 30 days, whether or not the
House or any of its
committees is scheduled to meet during the
period.
Section
13
describes conduct which constitutes contempt. A member may
be guilty of contempt, if the member contravenes
section 7
,
8
,
10
,
19
,
21
(1) or
26
of this Act. Section 7, which is relevant to
this application, provides that a person may not:
(a)
Improperly interfere with or impede the
exercise or performance by Parliament or a House or committee of its
authority or functions.
(b)
Improperly interfere with the performance
by a member of his or her functions as a member.
(c)
Threaten or obstruct a
member proceeding to or going from a meeting of Parliament or House
or committee.
(d)
While Parliament or a House or committee is
meeting, create or take part in any disturbance within the precincts.
These
provisions need to be interpreted to be congruent with the various
sections of the Constitution to which I have made reference,
namely
sections 1, 19 and 58. This means, as I have already indicated,
a high threshold is required to justify the suspension
of members of
Parliament. If this were no so, the following hypothetical
could take place. I stress that it is but a hypothetical
employed for
explanatory purposes.
A
governing party with a bare majority could use its majority to
exclude a significant percentage of opponents from entering
Parliament
when it feared the latter may win a motion of no
confidence on the basis that the opposition parties, together with a
few dissenting
voices within its own ranks, who may well abstain,
could cause the governing party to lose a motion of no
confidence.
In this way democracy could be subverted on the
pretext of enforcing discipline.
The
values of section 1 of the Constitution demand careful scrutiny. In
addition, the procedures to be adopted in such case, must
in terms of
section 12(2)(a), be conducted in accordance with a procedure
that is reasonable and procedurally fair.
When
a majority of the committee is comprised of members of the majority
party seeking to discipline its opponents, it appears to
me that an
even greater level of fairness, responsibility and concomitant
transparency is required. Turning to the charges,
it is
difficult to ascertain on these papers (absent the video) whether all
of category A applicants refused to take their
seats upon so
being ordered to do so. On the Hansard record it is difficult
to know precisely what occurred. There
is no mention of fourth
applicant having to take his seat; only the other three applicants in
category A are mentioned by name.
Rule 51 of the
Rules of the National Assembly provides that, 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 52 provides for the Speaker to suspend the member if,
in her opinion,
the conduct is of so serious a nature that an order
to withdraw from the Chamber for the rest of the day is inadequate.
Rule 53
obliges the member to withdraw not only from the Chamber but
also the precincts of Parliament.
Charge
two requires recourse to these same Rules. From the record in
Hansard, no member was named by the second respondent
in terms of
these Rules nor does second respondent deny the averments that she
did not name any of the members. I accept her averment
that the
answering affidavit was compiled in haste but that is not a
sufficient defence. There is nothing therein to gainsay these
averments.
Applicants
contended in respect of charge three that Mr Holomisa was not asked
to testify even though it was he who was allegedly
prevented from
posing his question. His evidence may have given context to the
nature of the charge and its importance with
respect to the
appropriate sanction that should then have been imposed.
Charge
four appears to be a duplication of charge one. The applicants
aver that the National Assembly had terminated when
the events set
out in charge seven occurred. Not only does the record in
Hansard not support this charge because it
is impossible to
determine from Hansard as to whether the events took place before
Parliament suspended (and indeed it appears
on this reading that
there is no such evidence), but the averments made by the second
applicant in his founding affidavit are again
not denied by second
respondent The only point raised is that the National Assembly
could not continue its work after suspending
business
because of the conduct of applicants .
However
the short speech which the second respondent delivered upon the
resumption of the House at 1615 after breaking at
1458 on the 21
August does not reveal whether the cause of the
delay was the conduct of applicants after
the House was
suspended at 1458. For this reason, the ordinary
treatment of evidence must therefore take its
course.
Two
further observations should be made. Second applicant drew the
committee’s attention to the scale of sanctions.
There is
no suggestion that any of the applicants were repeat offenders (that
is that they had a previous parliamentary record).
Turning
to the reasons for the sanctions which were imposed, annexure A is
the only relevant document but it does no more than summarize:
“the
instigators’ presentation on mitigating and other factors.”
There
is however, not even one line in the report as to why the committee
accepted these submissions or why it failed to consider
or reject the
imposition of lesser sanctions which might have been appropriate.
I accept that members of Parliament cannot
be expected to produce a
report which is of the standard of a judgment, but when so grave a
set of consequences follow for democracy,
some set of reasons,
albeit even if not complete, must surely be included in
the report. MP’s are
not necessarily lawyers but it does
appear that they did enjoy the benefit of the parliamentary legal
advisor and possibly further
legal advice On this point, it was never
made clear why submissions made by second applicant on appropriate
sanctions could not
have been considered by the committee.
There
is a set of allegations in the founding affidavit, not denied again,
by the second respondent or by the Deputy Speaker Mr
Tsenoli in his
affidavit which only deals with the events of 27 November 2014, that
ANC members also disrupted the business of
Parliament. On these
papers I cannot reject this particular argument without more.
Within
the context of labour law admittedly, Nicholas, AJA in
Numsa and
Others v Henred Fruehof Traders (Pty) Ltd
1994 (15) IAJ 1257 (A)
at 1264 said the following:
“
Equity
requires that the Court should have regard to the so-called parity
principle. This has been described as a basic tenet
of fairness
which requires that like cases should be treated alike .. So it has
been held by the English Court of Appeal that the
word ‘equity’
as used in the United Kingdom statute dealing with the fairness of
dismissal comprehends the concept
that the employers who behave in
much the same way should have meted out to them much the same
punishment. The parity principle
has been applied in numerous
judgments in Industrial Court and the LAC and which has been held for
example that unjustified, selective
dismissal constitutes an unfair
labour practice.”
I
would have thought, given the gravity of suspensions from Parliament,
that a similar principle would be equally applicable.
It may
well be shown that this principle, upon a full evaluation of the
conspectus of the facts, is equally applicable in this
case. Adding
to its importance is the consideration that the majority
party controlled the disciplinary process.
Although the
debate of 27 November 2014, the full record of which is attached to
the papers, is not strictly relevant, it is illuminating
to canvass
its contents.
An
extract from Dr Lotriet of the Democratic Alliance reveals what may
well be relevant to the decision for final relief. She says
the
following about the events of 21 November 2014:
“
The
Speaker of the National Assembly, the Honourable Baleka Mbete, failed
to maintain order in the House and in fact contributed
to the
breakdown of order in the House by referring to all EFF members as a
collective instead of two individual members involved
in the
disruption. She furthermore lost control of her own emotions
and allowed them to overtake her decision-making abilities.
The
Speaker herself has admitted that she ‘lost it’ on 21
August.”
Dr
Lotriet continued:
“
We
have therefore come to the conclusion that the report produced by the
Powers, Privileges and Immunities Committee is fundamentally
flawed
and procedurally compromised. We cannot support it for it is
not the product of a fair investigation ... the following
facts made
it clear that the investigations were flawed and purposely
manipulated to ensure a predetermined outcome. Firstly,
the
submission of the leader of the EFF was disregarded by the committee
and only considered after all findings were final.
Now how can
that then have an impact on the findings? The Honourable Malema
raised a number of pertinent points that should
have been addressed
during the investigation and even before the investigations.
This submission referred to important matters
relating to natural
justice and procedural fairness as required by the Powers, Privileges
and Immunities of Parliament and Provincial
Legislatures Act and its
content was never addressed. We even wrote letters to the
chairperson expressing our concern about
this matter to no avail.
Secondly, no formal legal opinion was produced to explain how a
majority ANC committee could reasonably
constitute an investigation
that was free of a reasonable apprehension of bias. Here we had
a situation where the person
who referred the complaint to the
committee was a member of the majority party and the majority of the
members of the committee
were members of the majority party.
Now this clearly points to potential or reasonable apprehension of
bias.”
I
accept that these are the statements from a member of an opposition
party. I also accept that there exists the
obvious
incentive by opposition parties to reduce the reputation of the
governing party in the eyes of the public. But the observations
so
made, if properly proved upon the full conspectus of the facts at a
final review, could prove important in the determination
thereof.
They are important averments which reflect the
facts as I have outlined from the affidavits which
,of course,
are the only pieces of evidence that must be considered
by a Court There is in my view
therefore sufficient on
these papers for the applicants to meet the requirement of a
prima
facie
right. I consider that this must be so in the
light of the provisions of s12 of the Act which
requires
that the matter be in accordance with a procedure that
is reasonably and procedurally fair.
Significantly
Mr Duminy, who appeared together with Ms Mangcu- Lockwood on behalf
of the respondents, focused much of his address
on applicants’
failure to meet the requirement of irreparable harm as opposed to
resisting many of the points that I have
raised insofar as the
prima
facie
right requirement is concerned. Mr Duminy submitted
that the applicants’ main claim turned on their loss of salary
for the period of suspension will result in irreparable harm.
Insofar as this is concerned, Mr Duminy contended there
was no merit in this particular claim because the salaries will
be recoverable if the applicants succeed in their application
for
final relief. The loss of salary therefore did not constitute
irreparable harm.
The
applicants further claim that because of their suspension at least
one category will not have access to parliamentary offices.
Mr
Duminy submitted that Parliament went into recess on 28 November
2014, the day of their suspension and the next term will resume
on 27
January 2015. They are not required to attend their offices
during this period and have not given any evidence as to
why they may
require access to their offices. He submitted further that
there was no merit in the allegations that the suspension
meant that
Parliament would not pay for their flights. In this regard he
referred to the affidavit of Ms Linda Harper, the
acting section
manager member support services, who stated clearly in her affidavit
that sanctions against the affected members
did not include members
travel and communication facilities.
Mr
Duminy noted that there was a hydraulic relationship between the
strength of the applicants’ case for final relief and
the other
requisites for an interim interdict. The stronger the
applicants prospects of success, the less they needed to
rely on
prejudice. Conversely, the greater the element of doubt, the greater
the need for the other factors to favour applicants.
Eriksen
Motors v Protea Motors and Others
1973 (3) SA 685
(A) at 691.
He
submitted that the applicants’ case for irreparable harm and
indeed in respect of the balance of convenience was very weak.
Accordingly, they are required to show very strong prospects of
success in order to bolster their weak case on the other
requirements.
I
am hesitant to weigh these competing concerns. The respondents
papers are so skeletal in their denial of crucial averments
made by
the applicants. Suffice to say that, in my view, applicants have
shown reasonable prospects of success for relief.
That reduces
their hurdle in respect of the requirement of irreparable harm but,
in any event, the question of irreparable harm
must be analysed
within the context of the position of applicants. With respect
that was not the manner in which Mr Duminy
sought to argue his case.
These
applicants are not aggrieved employees. They are public
representatives who represent 6.35% of the elected; that is
of those
who cast their vote in the 2014 elections. They are paid to
represent these constituents. Failing to pay them
does not only
mean hardship for themselves personally in respect of their pension
payments, mortgage bonds, vehicle finance and
other costs that they
must incur, but it weakens their financial ability for the period of
the suspension to do the job for which
they are paid.
Similarly, a suspension which bars them from access to their offices
can surely not be dependent on
when the sanction was imposed.
It prevents applicants to do what their political opponents are
certainly able to do, that
is to access their facilities, which they
have of right as public representatives.
The
problem with respondents’ arguments in this regard is that they
singularly omit to take account of the democratic imperatives
which I
have been at pains to emphasise throughout this case.
I
turn then to deal with the balance of convenience. An applicant
for an interim interdict must show that the balance of convenience
favours the granting of an interim interdict. Mr Duminy
submitted that the prejudice to the respondents, if interim relief
is
granted but the main application fails, is that in the interim it
would undermine the established disciplinary mechanisms and
structures of Parliament by creating unacceptable levels of
uncertainty.
He
referred to the
De Lille
case at para 16 to the effect that
without an internal mechanism of control and discipline, the National
Assembly would be impotent
to maintain effective discipline and order
during the debates. What in his view must therefore be required
to be weighed
is short term reversible inconvenience to the
applicants against potentially a long period of uncertainty in
relation to essential
functions and mechanisms of control of the
National Assembly. But this is a misconceived argument, for
given the existence
of part B of the relief, there will inevitably be
uncertainty with regard to the question of discipline raised by this
dispute
until the entire dispute is resolved.
To
recapitulate, this judgment cannot and does not provide a definitive
finding regarding the applicants conduct on 21 August 2014.
On more
comprehensive papers from respondents, a different
picture may emerge. Hence this judgement should not
and cannot
be construed as seeking to undermine the clear right of Parliament to
regulate its own proceedings and the conduct of
its members. It
does not, in any way, seek to sanction or approve of conduct
that undermines the very purpose of Parliament,
that is to be the
deliberative chamber for the nation. However, I do find
that on these particular facts, given the
nature of the relief that
is sought, the applicants have made out a case to justify the relief
which they have claimed in part
A
.For
these reasons therefore the following order is made:
THE FIRST RESPONDENT
OR ANYONE ACTING UNDER AUTHORITY OR DIRECTION FROM IN ANY MANNER
WHATSOEVER, IS INTERDICTED FROM GIVING EFFECT
TO OR IMPLEMENTING OR
ENFORCING THE DECISION TAKEN BY THE NATIONAL ASSEMBLY ON 28 NOVEMBER
2014 AND CONVEYED IN WRITING TO THE
APPLICANTS ON 28 NOVEMBER 2014 TO
IMPOSE A SANCTION OF SUSPENSION OF MEMBERSHIP OF THE NATIONAL
ASSEMBLY WITHOUT REMUNERATION IN
RESPECT OF THE SECOND TO TWENTY
FIRST APPLICANTS.
IT IS DIRECTED THAT
PENDING THE OUTCOME OF THE APPLICATION IN PART B, THE APPLICANTS
SHALL BE ALLOWED AND ADMITTED TO CARRY OUT
THEIR FUNCTIONS AND ENJOY
ALL PRIVILEGES AS ELECTED MEMBERS OF THE NATIONAL ASSEMBLY.
THESE ORDERS SHALL
COME INTO EFFECT IMMEDIATELY AND SHALL OPERATE UNTIL THE FINAL
DETERMINATION OF THE RELIEF AS SOUGHT OUT IN PART
B.
THERE
IS NO ORDER AS TO COSTS.
DAVIS,
J