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[2015] ZAWCHC 39
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Malema and Another v Chairman of the National Council of Provinces and Another (12189/2014) [2015] ZAWCHC 39; 2015 (4) SA 145 (WCC); [2015] 2 All SA 728 (WCC) (15 April 2015)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 12189/2014
DATE:
15 APRIL 2015
REPORTABLE
In
the matter between:
JULIUS
MALEMA
..............................................................................................................
1
st
Applicant
ECONOMIC
FREEDOM
FIGHTERS
............................................................................
2
nd
Applicant
And
THE
CHAIRMAN OF THE NATIONAL
COUNCIL
OF
PROVINCES
..........................................................................................
1
st
Respondent
THE
AFRICAN NATIONAL
CONGRESS
..................................................................
2
nd
Respondent
Coram
:
BOZALEK et CLOETE JJ
Heard:
24 NOVEMBER 2014
Delivered:
15 APRIL 2015
JUDGMENT
BOZALEK J:
[1]
This application involves a review of a
ruling made by the presiding Speaker during a joint sitting of the
National Assembly and
the National Council of Provinces in June 2014
in the course of the debate on the President’s State of the
Nation address.
[2]
First applicant is a Member of the National
Assembly and the President and Commander–in-Chief of the
Economic Freedom Fighters,
a registered political party represented
in Parliament and which is also the second applicant.
[3]
First respondent is Ms Thandi Modise, the
Chair of the National Council of Provinces in her capacity as the
presiding officer or
Speaker in the joint sitting which was held on
18, 19 and 20 June 2014.
[4]
Second respondent is the African National
Congress, a registered political party. It is cited only for any
interest it might have
in the matter and no relief is sought against
it. Only first respondent opposes the application.
[5]
Applicants seek an order that the following
rulings handed down by first respondent during the debate be declared
unlawful and invalid
and be reviewed and set aside:
5.1 her decision
that certain statements made by first applicant ‘
are
unparliamentary and do not accord with the decorum of this House’
;
5.2 her decision to
request and then order first applicant to withdraw his statement that
the ANC government had massacred the mine
workers at Marikana in that
the police who killed them represented the ANC government; and
5.3 her decision to
ask first applicant ‘
to leave the House’
.
[6]
In addition applicants seek orders that
first respondent apologise in public to them for her rulings and
interdicting her from ‘
abusing her
powers to protect the governing party against lawful criticism in the
parliamentary debate’
.
[7]
In due course the record of the
proceedings, namely, transcripts from Hansard, were furnished and
first respondent filed a full
opposing affidavit.
LEGAL FRAMEWORK
AND APPLICABLE LEGAL PRINCIPLES
[8]
In terms of sec 43(a) of the Constitution
of the Republic of South Africa, 1996 the legislative authority of
the national sphere
of government is vested in Parliament which
consists of the National Assembly and the National Council of
Provinces. Joint sittings
of these Chambers are governed by the Joint
Rules of Parliament and presided over by either the Speaker of the
National Assembly
of the Chairperson of the National Council of
Provinces. By arrangement with the Speaker of the National Assembly,
and pursuant
to Joint Rule 10, first respondent presided at the joint
sitting during which first applicant made the remarks which resulted
in
the rulings which applicants now challenge.
[9]
In
Lekota
and Another v The Speaker of the National Assembly and Another
[1]
a Full Bench of this division was seized of a case similar to the
present in which the rulings of the Speaker of the National Assembly,
made in response to statements by a Member in a debate which were
highly critical of the President, were challenged by way of review.
[10]
In
that matter the Court observed what it referred to as the trite
principle that the Speaker ‘
although
affiliated to a political party, is required to perform the functions
of that office fairly and impartially in the interests
of the
National Assembly and Parliament’
.
It continued that ‘
(w)hen
presiding, …the Speaker has to maintain order and apply and
interpret its rules, conventions, practices and precedents.
In so
doing, the Speaker should jealously guard and protect the members’
rights of political expression entrenched in the
Constitution’
.
[2]
[11]
In considering issues concerning the
exercise of the right to freedom of speech in Parliament, regard must
be had in the first place
to the applicable provisions of the
Constitution. One of the most important is sec 58(1)(a) which
provides that Cabinet Members,
Deputy Ministers and Members of the
National Assembly ‘
have freedom of
speech in the Assembly and in its committees, subject to its rules
and orders’
. Similar provisions
relating to the National Council of Provinces are to be found in sec
71(1) of the Constitution. Other central
provisions of the
Constitution relating to Parliament are found in sec 42(3) which
provides that the National Assembly is elected
to represent the
people and to ensure government by the people under the Constitution
which it does inter alia ‘
by
providing a national forum for public consideration of issues, by
passing legislation and by scrutinising and overseeing executive
action’
.
[12]
As
was pointed out in
Lekota,
Rule
44 of the Rules of the National Assembly echoes the constitutional
guarantee of the right to freedom of speech and debate in
the
National Assembly (and no doubt a similar Rule applies in the
National Council of Provinces), when it states that ‘…
there
shall be freedom of speech and debate in or before this House and any
joint committee of Parliament, subject only to the restrictions
placed on such freedom in terms of or under the Constitution, any
other law or these Rules’
.
[3]
[13]
Underpinning these provisions are other
equally fundamental provisions of the Constitution including sec 1(d)
which entrenches as
a founding value ‘
a
multi-party system of democratic government, to ensure
accountability, responsiveness and openness’
and
sec 16(1) of the Bill of Rights which guarantees the right to freedom
of expression including the right to receive or impart
information or
ideas.
[14]
The
primacy of a Member of Parliament’s right to freedom of speech
has been consistently recognised by our courts as is illustrated
by
the following extracts from the judgment of the Supreme Court of
Appeal in
Speaker
of the National Assembly v De Lille and Another
[4]
where Mahomed CJ stated the following of the guarantee of freedom of
speech to Members of Parliament in sec 58 (1) of the Constitution:
‘
It
is a crucial guarantee. The threat that a Member of the Assembly may
be suspended for something said in the Assembly inhibits
freedom of
expression in the Assembly and must therefore adversely impact on
that guarantee’.
and
The
right of free speech in the Assembly protected by s 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’.
[15]
As noted, the right of Members of the
National Assembly to freedom of speech entrenched by sec 58(1)(a) of
the Constitution is subject
to the ‘
rules
and orders’
of the Assembly.
Section 57(1)(b) stipulates in turn that ‘
the
National Assembly may … make rules and orders concerning its
business, with due regard to representative and participatory
democracy, accountability, transparency and public involvement’
.
Section 70(1)(b) vests an identical power in the National Council of
Provinces. It is noteworthy that such rules and orders may
only be
made by the National Assembly itself (or by the Council), and not by
the Speaker nor anyone else. Thus not only is the
power to make rules
and orders the preserve of the National Assembly (or the Council),
and not that of the Speaker, it is also
constrained by the democratic
values enumerated in the sub-section.
[16]
Also of relevance is the Powers, Privileges
and Immunities of Parliament and Provincial Legislatures Act, No 4 of
2004 which provides,
in sec 6, that Members (of both houses) of
Parliament have the same privileges and immunities in a joint sitting
of the National
Assembly and the National Council of Provinces as
they have before the National Assembly or the National Council of
Provinces.
[17]
It is common cause that first respondent
ultimately invoked Rule 14G of the Joint Rules of Parliament in
ordering first applicant
to withdraw from the House. The Rule
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
sitting’
. Joint Rule 12 regulates
discipline when the Houses sit jointly and provides that the
respective Chambers’ Rules on discipline
remain applicable to
members during joint sittings.
[18]
The
paramountcy of the Constitution in regard to proceedings in
Parliament and the role of judicial scrutiny thereof has been
authoritatively
emphasised, both in
Lekota
and, as appears from the following statement by Mahomed CJ, in De
Lille
[5]
:
‘
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.’
[19]
This
does not mean, however, in matters such as these, that the Courts,
using their powers of judicial review, should readily substitute
their opinions for those of Parliament or parliamentary officials in
relation to matters entrusted to them. As was stated by Davis
J in
Mazibuko
[6]
‘…
An
overreach of the power of judges, their intrusion into issues which
are beyond their competence or intended jurisdiction or which
have
been deliberately and carefully constructed legally so as to ensure
that the other arms of the State deal with these matters,
can only
result in jeopardy for our Constitutional democracy’
.
FACTUAL
BACKGROUND
[20]
Against the above framework I proceed to
set out the excerpts from Hansard which contain and contextualise the
remarks made by first
applicant for which he was censured.
[21]
The President delivered his State of the
Nation Address at the joint sitting on 17 June 2014 whereafter
it was debated by the
two houses sitting together. First applicant
participated in the debate on 18 June 2014 and said the following
during the course
of his speech:
‘
For
five months now, workers in the platinum belt have been on strike,
which demonstrates their genuine determination. They were
striking
for R12 500, when the ANC massacred 34 of them two years ago for
doing so.’
[22]
A point of order was then raised by a
Cabinet Member, Mr B A Radebe, in the following terms:
‘
Chairperson,
on a point of order: the speaker said the ANC government massacred
people two years ago. Is that parliamentary? Is
there any proof of
that? Could you rule on that, Chairperson?’
To which first
applicant responded:
‘
I
maintain that’
And virtually
immediately thereafter:
‘
The
ANC government massacred the people in Marikana. Those police were
representing the ANC government’
.
[23]
In short order first applicant made it
clear that he would not withdraw the statement complained of and,
after being reprimanded
by first respondent for not pausing to allow
points of order to be dealt with, was allowed to proceed but not
before first respondent
advised that she would rule on the objection
the following day:
‘…
because
it is not an open and shut statement that you make and conclude with.
There are many implications with it. I would like
to be properly
advised when I come back to this House with a ruling tomorrow’.
[24]
First respondent duly gave the ruling on
the following day, 19 June 2014 in the following terms:
‘
At
the Joint Sitting of 18 June 2014, hon Member Radebe raised a point
of order against the statement made by hon Malema during
his speech.
The statement reads:
They –
referring to the
mineworkers –
were striking for
R12 500, when the ANC massacred 34 of them two years ago for
doing so.
After the point
of order was stated, hon Malema maintained his statement and
reiterated:
The ANC
government massacred the people in Marikana. Those police were
representing the ANC government.
Despite an
attempt to call hon Malema to order, he insisted that he was not
going to withdraw.
I indicated
yesterday that I would make a ruling on this matter.
Hon Members,
having perused the Hansard, I have arrived at the conclusion that the
statements made by hon Malema are unparliamentary
and do not accord
with the decorum of this House. Although Members enjoy freedom of
speech during the proceedings of this House,
this freedom is subject
to limitations imposed by the Constitution and the Joint Rules.
The statements
made by hon Malema suggest that the government – which is made
up of Members of this House – deliberately
decided to massacre
the people of Marikana. This does not only impute improper motives to
those Members of the House, but it also
accuses them of murder.
Secondly,
I must also indicate that there commission
(sic)
has been set up by the President to
enquire into this matter and that that commission has not yet made
any findings. It is therefore
undesirable to make statements which
will second-guess the outcomes
(sic)
of
that commission.
I want to further
remind hon Members of this House that a Ruling made by a Presiding
Officer is final. Statements like ‘I
am not going to withdraw’
sound contemptuous and are also challenging to the authority of the
officer presiding.’
[25]
First respondent thereupon requested first
applicant to withdraw his statements ‘
which
said that the ANC and the ANC government massacred the people in
Marikana’
. First applicant
responded:
‘
Chair,
when the police reduce crime you come here and say that the ANC has
reduced crime. When the police kill people, you don’t
want us
to come here and say that the ANC government has killed people. That
is inconsistent, hon Chair’
.
First applicant
refused to withdraw his statements. He was thereupon instructed to do
so, after which the following exchange took
place:
‘
Chairperson
of the NCOP: hon Malema I will ask you again to withdraw those
statements.
Mr SJ Malema:
Chair I maintain that the ANC government killed people in Marikana.
Chairperson of
the NCOP: Hon Malema you leave me no choice but to ask you to leave
the House.
Mr SJ Malema: No
problem.’
[26]
Thereupon first applicant and all other
representatives of second applicant proceeded to leave the Chamber.
APPLICANTS’
CASE
[27]
The applicants’ case is that first
respondent’s ruling that first applicant’s statements had
been unparliamentary
was unlawful and accordingly that he was
justified in refusing to withdraw them; further, that his consequent
expulsion was unlawful.
First applicant contends further that his
remarks were his opinion on a matter of high public interest and was
a statement about
the ANC as the government of the day, saying
nothing about any particular individuals.
[28]
Apart from the constitutional protection
which first applicant contends his statements enjoyed, his case is
further that he did
not transgress any of the Joint Rules (or any
standing order) which were applicable to the debate; more
particularly he disputes
that his statement directly or by
implication accused all or any of the ANC Members of Parliament
themselves of murder. First applicant
reasoned that his statements
had made it clear that he held the ruling party responsible for what
he termed the massacre of the
34 mineworkers ‘
because
the police who had killed were representing the ANC government’
and that no reasonable person could have interpreted his statement as
meaning that individual ANC Members of Parliament were guilty
of
murder. First applicant also took issue with first respondent’s
other reason for her ruling, namely, that relating to
anticipating
the findings of a commission of inquiry.
[29]
Applicants also contend that first
respondent’s rulings were unlawful under the provisions of the
Promotion of Administrative
of Justice Act, No 3 of 2000 (‘
PAJA’
)
inasmuch as first respondent was clearly biased, her decision was
based on a material error of law in that first applicant’s
statements had not been unparliamentary and, that she had acted in
bad faith for an ulterior purpose, namely, to protect second
respondent against legitimate criticism.
[30]
Finally, first applicant contends that
first respondent could not reasonably have held the opinion that he
was in breach of Rule
14G of the Joint Rules and thus subject to
expulsion since her opinion had been based on the incorrect and
unlawful premise that
his statements had been unparliamentary.
[31]
In justification for the further relief
sought, namely, the apology and the interdict, first applicant
contends that he and his
party have been embarrassed and harmed by
first respondent’s rulings in that they created the impression
that his criticism
of the ANC had been unlawful, hence the need for a
public apology. Secondly, he contends, an interdict is necessary to
prevent
first respondent from abusing her power in future in order to
protect the governing party, of which she is a member, against lawful
criticism in parliamentary debate.
FIRST
RESPONDENT’S CASE
[32]
In broad outline first respondent’s
case is that, since the government is largely comprised of Members of
Parliament, more
particularly Members of the National Assembly, first
applicant’s statement to the effect that the ANC massacred the
people
in Marikana reflected on those Members and was therefore
unparliamentary. First respondent contends further that when she
ordered
first applicant to withdraw the offending remarks she acted
in accordance with well-established precedent and a National Assembly
standing order which is routinely followed. First respondent contends
that, by refusing to withdraw his remarks, first applicant
disregarded her authority as chair and she was accordingly entitled
to order him to withdraw immediately from the Chamber for the
remainder of the day’s sitting.
[33]
First respondent denied that her rulings
were subject to the provisions of PAJA or, if they were, that there
was any basis for her
ruling to be set aside on any of the grounds
relied upon by the applicants. Finally, first respondent contended
that the Courts
should not interfere with a bona fide exercise on her
part of a discretionary power which, in the present instance, had
been exercised
consistent with well-established precedents.
DISCUSSION
[34]
It
was recognised in
Lekota
[7]
that the codified rules of Parliament may be augmented by occasional
orders and resolutions adopted by the National Assembly and
that
‘
such
occasional orders and resolutions endure beyond the session during
which they were adopted and accordingly have the status
of so-called
‘standing orders’
.
These continue to apply until repealed or amended.
[35]
As was the case in
Lekota,
a particularly important standing order, relevant for the purposes of
the present application as well, was adopted by the National
Assembly
on 16 September 1997 and continues to apply. That standing order
followed a statement to the House made by former Speaker
of the
National Assembly, Dr F N Ginwala, on 17 September 1996 which reads
as follows:
‘
Section
55(2) of the Constitution
[the
precursor to the current s58]
establishes
that there shall be freedom of speech in or before this House subject
only to the restrictions placed on such freedom
in terms of the
Constitution any other law and Parliament’s own Rules.
Rule
96
[the precursor to NA Rule 63]
states
that no Member shall use offensive or unbecoming language. It is the
function of the presiding officer to judge whether a
particular
remark made in debate is offensive and contrary to the Rules. In
arriving at a decision, the presiding officer will
also be guided by
any precedent Parliament has set for itself.
There
have already, since 1994, been a number of rulings from the Chair
that Members may not impute improper motives to other Members
or cast
personal reflections on their integrity as Members, or verbally abuse
them in any other way. This approach is also in keeping
with the
practice in many other Parliaments. If such accusations, whether made
directly or by inference, were to be generally allowed
in debate in
this House, they would not only seriously undermine members in the
performance of their duties, but they would also
undermine the image
and effectiveness of Parliament itself to function as the
Constitution intends.
Accusations
are equally offensive and damaging if they are made indirectly by
reference to views held by others, or even if they
are put forward by
way of a question, because then clearly no substantiation is being
offered which could give credence to this
allegation. That is not to
say that if a Member has good reason to believe that another Member
may be engaged in corrupt practices
or may be improperly influenced
in his or her actions for personal financial gain, such matter should
not brought to the attention
of the House.
Action
should, however, be taken in the proper manner. In such
circumstances, it is sound practice to require that a Member
institute
a charge against the Member concerned by way of a separate,
substantive motion which admits of a distinct vote of the House...
For
such a charge to be brought before the House, by way of substantive
motion, the charge would, incidentally, have to be clearly
formulated
and properly substantiated. Once the Register of Members’
Interest is in operation, a complaint may, when appropriate,
also be
lodged with Committee on Members’ Interests.’
[36]
It is first respondent’s case that
Speaker Ginwala’s aforesaid ruling, inter alia through the
adoption of the recommendations
in the so-called Jana Report,
resulted in the status of a standing order being conferred upon it in
the following terms:
‘
1.
A Member who wishes to bring any improper conduct on the part of
another Member to the attention of the House, should do so by
way of
a separate substantive motion, comprising a clearly formulated and
properly substantiated charge; and
2. Except upon
such a substantive motion, Members should not be allowed to impute
improper motives to other Members, or cast personal
reflections on
the integrity of Members, or verbally abuse them in any other way’.
[37]
First respondent stated that this standing
order ‘
in part’
informed her decision to request first applicant to withdraw the
offending remarks but at another point in her opposing affidavit,
stated that, in effect, this was the ‘
only
reason’
why she insisted he
withdraw his remarks. In regard to the second reason which she gave
for her ruling in her original motivation
viz anticipating the
findings of a judicial commission of inquiry, first respondent
conceded in her opposing affidavit that the
findings of a judicial
commission of enquiry are not judicial decisions and that the
sub-judice rule embodied in Joint Rule 14Q
was not applicable. First
respondent went further by disavowing any reliance on her statement
that the matter was being investigated
by a commission of inquiry as
a reason for finding that first applicant’s statements were
unparliamentary. This does not
detract, however, from the fact that,
on a plain reading of her ruling, first respondent appeared to offer
this factor as a further
reason why first applicant’s
statements were unparliamentary.
[38]
Insofar as first applicant’s remarks
referred to a collective, first respondent relied on a series of
rulings made by previous
Speakers which, according to first
respondent, established the principle that remarks referring to the
‘
ANC leadership’
were in fact remarks about individual Members of the House because a
large part of the leadership of the ANC were Members of the
House.
One such ruling was made on 12 September 2013 when the then Speaker
of the National Assembly, Mr M V Sisulu, ruled that
remarks
concerning the ‘
democratic
government of the ANC’
were a
reference to ‘
members of the
executive as a collective since they, in terms of the Constitution,
comprised the government at national level’
and
‘
members of the executive in the
National Assembly enjoy the same protection under the Rules as other
members of the House’.
Inasmuch
as these were merely Speaker’s rulings, as opposed to ‘
rules
and orders’
of Parliament, they
cannot, in my view, carry anything approaching the same weight. A
ruling in this context is nothing other than
an interpretation of a
“rule” or “order”. To the extent that Mr
Sisulu’s ruling is to be regarded
as a precedent, it is plain
from the statement of Dr Ginwala that such “precedents”
shall be for guidance only. Accordingly,
each case nonetheless falls
to be determined on its own particular facts against the legal
framework to which I have already referred.
[39]
Mr Sisulu had also relied on the ‘
firmly
established practice’
that a
member who wishes to impute improper motives to another member of the
House, including members of the executive, must do
so by way of a
substantive motion, supported by prima facie evidence. As it happened
that ruling also concerned a statement that
the ANC government was
complicit in the killing of workers at Marikana. First respondent
stated in her affidavit that her ruling
relied on, and was consistent
with, the aforesaid ruling and an earlier ruling in similar
circumstances.
[40]
First respondent also emphasised that
first applicant was not prohibited from saying what he had but
was required to say so
in the context of a debate on a substantive
motion; furthermore, that the sanction imposed, i.e. exclusion from
the House for the
remainder of the day’s sitting, was not
punishment for what he had previously said, but involved the exercise
of a power
in terms of Joint Rule 14G which stipulates that if a
Member disregards the authority of the Chair he or she may be ordered
to
withdraw immediately from the House for the remainder of the day’s
sitting.
[41]
Central to first respondent’s ruling
was her understanding, expressed in her opposing affidavit, that the
concept ‘
government’
refers, at national level, not to the governing party but to the
executive authority of the Republic which is vested in the President,
who exercises it together with other Members of the Cabinet, coupled
with the constitutional requirement that no more than two
Ministers
and two Deputy Ministers may be selected by the President from
outside the Members of the National Assembly. ‘
It
is clear therefore’
, she
reasoned, ‘
that the vast majority
of Members of the government are Members also of the NA and, in any
event, those who are not Members also
enjoy the protection of the
Rules when they participate in the business of the NA and a Joint
Sitting’
(para 18.74).
[42]
First respondent conceded that first
applicant could not, in keeping with her ruling, have moved a
substantive motion at the joint
sitting but stated that he would have
been at liberty to do so in the National Assembly.
[43]
Insofar as first respondent relies upon the
ruling of Speaker Dr F N Ginwala on 17 September 1996 which has
since acquired
the status of a standing order, its validity is not
challenged by the applicants. Nor, as I understand the applicants’
case,
do they dispute the validity of the Rules and practice which
prescribe the consequences of a Member failing to abide a ruling of
the Speaker. Their case is, rather, that first respondent’s
ruling that first applicant’s statement was unparliamentary
was
unlawful with the result that her directions that he withdraw the
statement and, when he failed to do so, that he leave the
House, were
consequently also unlawful.
[44]
In
determining the lawfulness of first respondent’s ruling the
question arises as to which legal principles must be applied.
In
Lekota
Fourie J, writing on behalf of the Court, stated
[8]
that in determining whether the Speaker had the lawful authority to
make the impugned ruling, the starting point is the Constitution.
As
I indicated earlier, the relevant provisions of the Constitution are
obviously pre-eminent, particularly insofar as they establish
a
National Assembly elected by the people as part of a system of
democratic government to ensure accountability, responsiveness
and
openness and insofar as they afford a guarantee of freedom of speech
in Parliament subject to that body’s ‘
rules
and orders’
and legislation enacted by Parliament in that regard. As was said by
Davis J in
Mazibuko
[9]
‘The public, in effect, own the national forum, parliament. It
is the body of the citizens of South Africa in that it is
comprised
of the people’s representatives, and the people are entitled,
as citizens of South Africa, to hear what our national
representatives have to say about a matter of such pressing
importance’.
[45]
A
second important constitutional principle is that arising from, or
being a manifestation of, the doctrine of the separation of
powers,
namely, that the courts must recognise the proper role of the other
branches of government under the Constitution and treat
their
decisions with the appropriate respect. This principle enjoins a
court, in a matter such as this, to not freely and lightly
interfere
with the decisions of Parliament, including officials such as the
Speaker, in so doing attributing to itself superior
wisdom in matters
which have been entrusted to Parliament. It was for this reason that
Davis J stated in
Mazibuko,
in the context of warning against the danger of the judiciary in
South Africa being drawn into all manner of political disputes,
that
‘…
judges
cannot be expected to dictate to Parliament when and how they should
arrange its precise order of business’
[10]
.
[46]
On
the other hand, regard being had to the courts’ fundamental
duty in terms of sec 172(1)(a) of the Constitution to ‘
declare
that any law or conduct that is inconsistent with the Constitution’
… ‘invalid to the extent of its inconsistency’,
they must not shirk their responsibility of ensuring that organs of
State, including the legislative branch, operate ‘
within
a constitutionally compatible framework’
.
To quote again from
Mazibuko
[11]
‘
Courts
do not run the country nor were they intended to govern the country.
Courts exist to police the constitutional boundaries
… where
the constitutional boundaries are breached or transgressed, courts
have a clear and express role; and must then
act without fear or
favour’
.
[47]
The
parties were not in agreement as to whether first respondent’s
rulings could be challenged under the provisions of PAJA.
This issue
raises two constituent questions: firstly, whether first respondent’s
rulings constituted ‘
administrative
action’
as defined in sec 1 of PAJA or whether they were excluded from this
definition by virtue of the exemption provided in the Act for
‘
the
legislative functions of Parliament’;
secondly, it raises the question of whether first respondent’s
rulings had ‘
a
direct external legal effect’
.
In the view that I take of this matter, however, I consider that it
is unnecessary to determine the applicability of PAJA since
it was
common cause that first respondent’s rulings were, at the very
least, subject to review under the principle of legality
[12]
.
[48]
In
determining the test to be applied in reviewing the Speaker’s
rulings, the Court in
Lekota
held
[13]
that the question was
whether the Speaker had acted ‘
in
a manner consistent with the Constitution and the rights and values
for which it provides. Put differently, she has to perform
her
functions in accordance with the constitutional principle of legality
which requires her to act within the powers conferred
upon her by the
law and, in particular the Constitution’
... ‘
What
it effectively boils down to, is that applicants are required to show
that, in making her rulings, second respondent exercised
a power
which she did not legally have or that she materially misconstrued
the power afforded to her. Put differently, it requires
proof that
second respondent acted unlawfully or irrationally to the extent that
her rulings should be set aside’
.
[49]
I
respectfully associate myself with these dicta. It must also be borne
in mind that first respondent, as Speaker, has a duty to
maintain
order during debates and to this end has to apply the applicable
rules and standing orders. Importantly, furthermore,
this being a
review and not an appeal, the question is not whether first
respondent was right or wrong in her ruling or whether
the Court
would have come to a different conclusion. Again, to cite Lekota
[14]
,
‘
(u)ltimately
the question remains whether second respondent misconstrued her
discretion to the extent that the court should interfere
by setting
her rulings aside.’
[50]
Lekota
offers
valuable guidance for the present matter inasmuch as it concerned
remarks ruled unparliamentary by the Speaker on the basis
of the same
standing order as that relied upon by first respondent in the present
matter. In that case the remarks were directed
by the applicant at
the State President and their central thrust was that he had failed
to observe his oath of office through the
manner in which he had
dealt with a certain public controversy in which he was indirectly
embroiled. The Court analysed the contents
of the President’s
oath of office and concluded that the remarks in question constituted
a serious attack on his integrity,
inter alia, in that they clearly
conveyed that he was not an honest person and did not have strong
moral principles. As such, the
Court held, the remarks cast a serious
reflection on his integrity as a member of the
National
Assembly
.
[51]
Before analysing the remarks made by first
applicant in this matter and the reasoning behind first respondent’s
rulings that
they were in breach of the standing order, some
attention needs to be given to the rationale behind the standing
order. It will
be seen from the statement originally made by Speaker
Ginwala that the primary rationale for what became the standing order
is
that debate in Parliament should not, without proper procedures
being observed, be allowed to descend to personal invective where
improper motives are imputed to Members, personal reflections are
cast on their integrity or they are verbally abused. In order
to
ensure that the right to freedom of speech is not unduly fettered by
any such ruling, provision is made for the Member intending
to cast
such aspersions to do so only by way of a substantive motion, clearly
formulated and properly substantiated. As Mr Trengove
colloquially
put it in argument on behalf of the applicants, the standing order
says ‘
don’t get personal’
.
[52]
Both Speaker Ginwala’s statement and
the terms of the recommendations of the parliamentary committee which
encapsulated the
ruling of the Speaker primarily envisage a situation
where slights or aspersions are cast against the integrity of
individual Members
of the House. This is not to say that the standing
order can have no bearing on statements which reflect on the
integrity or motives
of a number or group of Members of the
National
Assembly
or the National Council of
Provinces. In my view, however, in determining whether the standing
order is applicable to such a statement,
sight must not be lost of
the rationale for the original ruling, nor of the overall
constitutional background and framework, namely,
the right of every
Member to freedom of speech having due regard to ‘
representative
and participatory democracy, accountability, transparency and public
involvement’
.
[53]
Against this background consideration must
be given to the reasoning underlying first respondent’s ruling
that first applicant’s
statement was unparliamentary. The core
of first respondent’s reasoning, as expressed in her ruling,
was that first applicant’s
remarks suggested that the
government, which is made up of Members of the House, deliberately
decided to massacre the people of
Marikana and this was an allegation
which not only imputed improper motives to certain individual Members
of the House but also
accused them personally of murder.
[54]
In
her opposing affidavit first respondent shed further light on her
reasoning which, in a nutshell, was that the concept ‘
government’
refers to the executive authority of the Republic which is vested in
the President together with other members of the Cabinet.
National
Assembly rules continue to apply to the President whilst taking his
or her seat in the House and apply also to the members
of his or her
Cabinet. The conclusion which she reached was
[15]
:
‘
It
is
clear therefore
,
that the vast majority of Members of the
government are Members also of the NA and, in any event, those who
are not Members also
enjoy the protection of the Rules when they
participate in the business of the National Assembly and a Joint
Sitting.’
[55]
First respondent’s case is then that
first applicant’s statement meant that individual Members of
Parliament, i.e. members
of the executive, had ‘
deliberately
decided to massacre the people of Marikana’
and
were guilty of murder. To arrive at this conclusion, not only must no
allowance be made for rhetoric or hyperbole, but one has
first to
assume that first applicant’s remarks were directed or could
reasonably be understood to be directed at the President
and all
members of the Cabinet and, secondly, that they denoted that such
persons had ‘
deliberately decided
to massacre the people of Marikana’
.
These, however, are far-reaching assumptions which, on the face of
it, do not appear to be borne out by first applicant’s
statements.
[56]
Firstly, seen in its proper context, first
applicant’s statement appeared rather to express his view that
he held the ruling
party responsible for the killing of the 34
mineworkers because the police who had killed them ‘
were
representing the ANC government’
.
In fact his initial remark, and which elicited the objection, made no
mention of the government but assigned responsibility for
what he
termed the ‘
massacre’
to the ANC. When Minister Radebe rose on a point of order and
incorrectly attributed to first applicant the statement that the
‘
ANC
government’
had massacred the
people, first applicant responded, in part, by stating that those
police were representing the ANC government,
which appeared to imply
no more than that he held ‘
the
government’
vicariously liable
for the actions of the police.
[57]
Secondly, as was contended on behalf of
applicants, it was a somewhat contrived interpretation of first
applicant’s statement
to suggest that its meaning was that ‘
the
government
deliberately
decided to massacre the people of Marikana’
,
i.e. literally accusing certain individual Members of murder. It is
noteworthy that first applicant made no allegation concerning
any
particular person in ‘government’, which tends to belie
the imputation relied upon by first respondent, namely,
that first
applicant was accusing particular Members of Parliament of mass
murder.
[58]
Furthermore, as was argued by counsel on
behalf of the applicants, the term ‘
government
’
can bear different meanings in different contexts. It might, in
different contexts, refer to the National Executive, the
civil
service or even to all Members of the ruling party in Parliament.
Moreover, if the term ‘
government’
is automatically assumed to be a reference to the President and all
members of the Cabinet the effect would be to severely limit
robust
debate in Parliament. On such an interpretation it would not be open
to a member of the National Assembly to contend that
‘
the
government squanders tax-payers money’
,
‘
the government is callous about
the plight of the poor’
or that
‘
the government misleads the
public’
. All of these allegations
would fall to be ruled in breach of the standing order and
unparliamentary because they refer to those
individual Members of the
national executive who sit in Parliament.
[59]
In my view one of the principal assumptions
underlying the Speaker’s ruling, namely, that first applicant’s
reference
to ‘
the government’
must be construed as a reference to the Cabinet and therefore a
reference to individual Members of the National Assembly was, in
the
circumstances of this matter, unwarranted. What is more, adopting
such an expansive interpretation of both the term ‘
government’
and Speaker Ginwala’s ruling, potentially at least, places a
severe limitation on the scope of debate in Parliament. What
previously might have been commonplace assertions in debate would now
amount to unparliamentary speech, and could only be made
upon the
tabling of a substantive motion but which, in many circumstances,
could not feasibly be placed in such a form. Furthermore,
even if
feasible, the requirement of such a motion being tabled in itself
would not only amount to a significant restriction on
the freedom of
speech of Members of Parliament but, on occasion, would effectively
be an absolute one. In the present instance
first respondent herself
admits that first applicant could not have moved a separate motion in
a joint sitting of Parliament. The
result is that he was precluded
altogether from making the challenged remarks during the debate on
the President’s state
of the nation address.
[60]
Reverting to the test adopted in
Lekota
and making due allowance for the deference which must be shown by the
courts to the decisions of the Speaker in their area of expertise
and
responsibility, I nonetheless consider that, in invoking the
provisions of the standing order, and in finding that first
applicant’s
statements were unparliamentary, first respondent
materially misconstrued the order’s reach. The irrationality
underlying
the ruling lay principally in first respondent holding
that first applicant’s statement imputed improper motives to
those
Members of Parliament who were members of Cabinet or reflected
on their integrity by literally accusing them personally of murder.
The finding of irrationality is also informed by first respondent’s
partial reliance, at the time of making her ruling, on
an invalid
reason viz that first applicant’s statement anticipated the
findings of a judicial commission of inquiry. In the
light of the
far-reaching implications of first respondent’s interpretation
of the standing order and its application to
first applicant’s
statement, I consider that the Court has no alternative but to hold
that first respondent’s initial
ruling and those that followed
therefrom, were unlawful.
REMEDY
[61]
Flowing from the above findings the Court
must consider what remedy, if any, must be afforded to the
applicants. In doing so the
Court is guided by the provisions of sec
172(1) of the Constitution which provides that a court must ‘
declare
that any law or conduct that is inconsistent with the Constitution
invalid to the extent of its inconsistency’
and
may make ‘
any order that is just
and equitable’
. Given the finding
that first respondent’s rulings were unlawful, the primary
relief sought by the applicants must be granted,
namely, that the
various decisions made by first respondent on 19 June 2014 fall
to be reviewed and set aside. As far as the
further related relief
sought by the applicants is concerned, viz that these rulings be
declared unlawful and invalid, the very
rationale for setting such
decisions aside is that they were unlawful and I therefore regard
such further declaratory relief as
unnecessary.
[62]
The applicants also seek an order that
first respondent be ordered to apologise in public to the applicants
for her rulings. I can
see no basis at all for any such relief.
Applicants have not succeeded in making out a case that first
respondent acted
mala fide
in making her rulings. In my view there is nothing on the record to
suggest that first respondent did not hold the
bona
fide
view that first applicant’s
statements were unparliamentary by reason of breaching the standing
order.
[63]
Similarly, the applicants have failed to
make out a case for the further order sought, namely, that first
respondent be interdicted
from abusing her powers to protect the
governing party against ‘
lawful
criticism in parliamentary debate’
.
Once again there is nothing in the record to suggest that first
respondent did not intend to act impartially and in keeping with
her
bona fide
view of what her powers and duties as Speaker required of her. In
fact the transcript of the proceedings as set out in Hansard
indicated that first respondent sought to perform her duty in a
measured and dignified manner, as befits the office of Speaker.
The
relief in question cannot be granted.
COSTS
[64]
As regard the question of costs the
applicants have obtained substantial relief insofar as they have
established that first respondent’s
rulings were unlawful and
fall to be set aside. In these circumstances costs must follow the
result.
ORDER
[65]
For these reasons the following order is
made:
1.
The following decisions by first
respondent on 19 June 2014 are reviewed and set aside:
1.1
Her decision that statements
made by first applicant ‘are unparliamentary and do not accord
with the decorum of this House’.
1.2
Her decision to request and
order first applicant to withdraw his statement that the ANC
government had massacred the mineworkers
at Marikana in that the
police who killed them represented the ANC government.
1.3
Her decision to ask first
applicant to ‘leave the House’.
2.
The applicants’ costs,
including the cost of two counsel, are to be paid by first
respondent.
BOZALEK
J
CLOETE
J
APPEARANCES
For the
Applicants/Plaintiffs: Mr W Trengove SC
Mr
C Giyose
Instructed
by:
Godla
and Partners
For the
Respondents/Defendants: Mr JC Heunis SC
Ms
N Mayosi
Instructed
by: State Attorney
[1]
[2012]
ZAWCHC 385
[2]
at
paras [11] and [12]
[3]
at
para [15]
[4]
1999
(4) SA 863
(SCA) at para [20] and [29]
[5]
At
para [14] and quoted with approval in Lekota at para [20]
[6]
Mazibuko
v The Speaker of the National Assembly and Others
2013
(4) SA 243
(WCC) 256H-I
[7]
at
para [17]
[8]
in
para [13]
[9]
at
255E-F
[10]
See
in this regard the remarks of the court in
Lekota
at paras [22] and [23]
[11]
at
256E-F
[12]
See
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at paras [58]
and [59]
.
[13]
a
t
paras [29] and [30]
[14]
a
t
para [31]
[15]
Summed
up in para [18.74] of first respondent’s opposing affidavit