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[2015] ZAWCHC 60
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Democratic Alliance v Speaker of the National Assembly and Others (2792/2015) [2015] ZAWCHC 60; 2015 (4) SA 351 (WCC); [2015] 3 All SA 72 (WCC) (12 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
[WESTERN CAPE DIVISION,
CAPE TOWN]
Case number: 2792/2015
DATE: 12 MAY 2015
REPORTABLE
In the matter between:
DEMOCRATIC
ALLIANCE
...................................................................................................
Applicant
And
THE SPEAKER OF THE NATIONAL
ASSEMBLY
...................................................................................................................
First
Respondent
THE CHAIRPERSON OF THE NATIONAL
COUNCIL OF
PROVINCES
...................................................................................
Second
Respondent
THE GOVERNMENT OF THE REPUBLIC
OF SOUTH
AFRICA
..................................................................................................
Third
Respondent
Judgment
Delivered 12 May 2015
CORAM: LE GRANGE, CLOETE et BOQWANA,
JJJ
LE GRANGE, J
Introduction:
[1] This application arises out of the
events that took place during the joint sitting of the Houses of
Parliament, being the National
Assembly (“NA”) and
National Council Of Provinces (“NCOP”), on 12 February
2015 when the State President
delivered his State of the Nation
address. The Speaker of the NA (“the Speaker”), along
with the Chairperson of the
NCOP (“the Chairperson”),
invoked s 11 of the Powers, Privileges and Immunities of Parliament
and Provincial Legislatures
Act 4 of 2004 (“the Act”) and
called upon staff of Parliament and the security forces (as referred
to in s 199 of the
Constitution, be it the police, army and or
intelligence services), to forcefully remove members of the Economic
Freedom Front
(“EFF”) from the joint sitting as a result
of the disturbances that were caused.
[2] The Applicant, the Democratic
Alliance, being a registered political party (“the DA”)
and the main opposition party
in Parliament, is aggrieved that the
Speaker and Chairperson used security forces to remove legitimate
parliamentary members from
a sitting of Parliament, and is now
challenging the constitutionality and meaning of s11 of the Act. The
relevant section allows
the Speaker and or the Chairperson to order
the staff of Parliament or the security services as envisaged by s
199 of the Constitution
to arrest and remove any person who creates
or joins a disturbance during a sitting of Parliament or a House or a
Committee.
The Background:
[3] The factual circumstances
underpinning the decision by the Speaker, with the Chairperson, to
invoke s 11 are not in dispute.
It is common cause that shortly after
the State President commenced with the delivery of his State of the
Nation speech, one of
the EFF members rose to ask a question on the
issue of monies the State President is allegedly required to repay in
terms of a
finding made by the Public Protector. The members of the
EFF were not satisfied with the manner in which the Speaker dealt
with
the questions asked by them. Some EFF members continued to rise
on a point of privilege or a point of order. The Speaker repeatedly
requested the EFF members to take their seats. After some EFF members
continued with interjections, the Speaker requested certain
of the
EFF members to leave the Chamber. This was not well received by the
EFF members and ultimately s 11 was invoked.
[4] After the removal of the EFF
members and some order returned to the Chamber, the DA’s leader
in Parliament rose on a point
of clarification. He enquired from the
Speaker whether Police officials had been called upon to remove the
EFF members from the
Chamber. Further discussion took place between
the DA’s Chief Whip, its Parliamentary Leader, the Speaker and
the Chairperson.
The Applicant’s members were adamant that it
was unconstitutional and un-parliamentary to call upon the security
services
to eject legitimate parliamentary members from the Chamber
and regarded it as a serious breach of the separation of powers as
enshrined
in our Constitution. The Speaker and the Chairperson had a
different view. The DA Members thereafter decided to walk out of the
joint sitting of Parliament.
[5] At this juncture it is perhaps
convenient to emphasize what this case is not about. This case is not
about whether the Speaker,
with the Chairperson, were justified in
invoking s 11 of the Act as a measure to protect the orderliness of
proceedings at the
State of the Nation Address. At the heart of the
Applicant’s complaint is the contention that the provisions of
s 11, properly
interpreted, can only be applicable to non - members
of Parliament. The Applicant is of the firm view that to construe s
11 differently
will render it constitutionally objectionable and
invalid for the following reasons. Firstly, members of parliament may
not be
arrested for what they say in Parliament. Secondly, Parliament
may not pass legislation infringing a member’s privilege of
free speech as guaranteed in the Constitution. Lastly, to allow the
executive to use force to arrest members of Parliament on the
floor
of the House of Parliament, whilst it is in sitting, is a serious
threat to the independence of Parliament and the preservation
of the
separation of powers.
[6] The DA is therefore seeking a
declaratory order in the following terms: declaring s 11
constitutionally invalid and reading
in the words, “except for
members”; alternatively, declaring s 11 constitutionally
invalid and deleting the words,
“arrest” and “security
services”; in the second alternative, declaring s 11
constitutionally invalid and
granting an order of notional severance
in order to prevent its application to any exercise of the
parliamentary privilege of freedom
of speech; and as a third
alternative, declaring that as a matter of interpretation, s 11 is
not applicable to the exercise of
the parliamentary privilege.
[7] The Respondents did not file
answering affidavits. In terms of Rule 6(5)(d)(iii) of the Uniform
Rules of this Court, the Respondents
raised a question of law.
According to the Respondents the provisions of s 11 properly
construed indeed apply to a member of Parliament
who creates or takes
part in any disturbance in the precincts of Parliament (as defined in
the Act) and as a result the section
is not constitutionally
offensive.
[8] The issue for consideration before
this Court is therefore entirely interpretative in nature. It raises
a question of law the
enquiry of which in my view primarily rests on
a consideration of the Constitution.
[9] Messrs. S P Rosenberg SC, assisted
by H J De Waal and M J Bishop, appeared for the Applicant. Messrs. JJ
Gauntlett SC, assisted
by A M Breitenbach SC and Ms K Pillay,
appeared for the Respondents.
The legal and constitutional frame
work:
[10] In terms of the Constitution (s 43
and s 44) the legislative authority of the national sphere of
Government is vested in Parliament,
which consists of the NA and the
NCOP. The joint sittings of these Chambers are ordinarily governed by
the Joint Rules of Parliament
and are presided over by either the
Speaker of the NA or the Chairperson of the NCOP.
[11] The Constitution (s 57(1) and s
70(1)) affords the NA and the NCOP a general power to ‘determine
and control its internal
arrangements, proceedings and procedures’
and to ‘make rules and orders concerning its business, with due
regard to
representative and participatory democracy, accountability,
transparency and public involvement’.
[12] S 58(1)(a) of the Constitution
further affords Cabinet Members and Members of the NA a right to
freedom of speech in the NA
and its committees, subject only to its
Rules and orders. Section 58(1)(b) goes on to provide that such
Members are not liable
to civil or criminal proceedings, arrest or
imprisonment or damages ‘for anything they have said in,
produced before or submitted
to the Assembly or any of its
committees’. The Constitution (s 58(2)) further states that,
‘[o]ther privileges and
immunities of the National Assembly,
and members of the Assembly may be prescribed by national
legislation’ (The same privileges
and powers are also afforded
to the NCOP. See s 71 of the Constitution).
[13] It is now accepted in our law that
s 57(1) of the Constitution permits Parliament to make rules that
temporarily exclude disruptive
members from the sittings of
Parliament. In National Assembly v De Lille and Another
1999 (4) SA
863
(SCA) at 869 D, the Supreme Court of Appeal held that:
“There can be no doubt that this
authority is wide enough to enable the Assembly to maintain internal
order and discipline
in its proceedings by means which it considers
appropriate for this purpose. This would, for example, include the
power to exclude
from the Assembly for temporary periods any member
who is disrupting or obstructing its proceedings or impairing
unreasonably its
ability to conduct its business in an orderly or
regular manner acceptable in a democratic society. Without some such
internal
mechanism of control and discipline, the Assembly would be
impotent to maintain effective discipline and order during debates”
[14] The Act whose provision is under
scrutiny came into operation on 7 June 2004, and thus after the
decision in De Lille. The
preamble to the Act records that
Parliament considered it “essential to provide for such further
privileges and immunities
in order to protect the authority,
independence and dignity of the legislatures and their members and to
enable them to carry out
their constitutional functions”. The
provisions of s 11 of the Act under consideration read as follows:
“11 Persons creating disturbance
A person who creates or takes part in any disturbance in the
precincts while Parliament or
a House or Committee is meeting, may be
arrested and removed from the precincts, on the order of the Speaker
or the Chairperson
or a person designated by the Speaker or
Chairperson, by a staff member or a member of the security forces.”
[15] The main edifice of Mr.
Rosenberg’s argument is essentially constructed on two pillars.
The first comprises the challenge
that the provisions of s 11 cannot
survive Constitutional scrutiny if properly read in context with the
other provisions of the
Act and in keeping with the Constitution,
which provides that Cabinet Members, Deputy Ministers, Members of the
NA and Members
of the NCOP are not liable to civil or criminal
proceedings, arrest, imprisonment or damages for anything that they
have said in,
produced before or submitted to the NA and NCOP or any
of its committees. Reference was also made to the drafting history of
the
Act to illustrate that s11 is only applicable to non-members as
an early draft version had the word ‘a member’ included.
On this basis, it was argued that it is necessary to read down s 11
of the Act to exclude Members of Parliament. The second pillar
comprises the challenge that the provisions of s 11 violate the
fundamental principle of the separation of powers as enshrined
in the
Constitution as a whole. The argument advanced on behalf of the DA is
that to allow the Speaker or the Chairperson the power
to call upon
the police and or army to arrest and remove members of Parliament
from the House and to allow the Executive branch
of government to
enter the heart of the Legislative domain, is a serious and
fundamental breach of the Constitution, entirely inconsistent
with
the basic notion of the separation of powers and as such s 11 should
be struck down.
[16] The nub of Mr. Gauntlett’s
argument in defence of the Respondents is that if the provisions of s
11 are read in the context
of the Act as a whole and on its plain
meaning the reference to ‘a person’ must include a
member. It was further argued
that to find otherwise would be
inconsistent with the plain wording of the Act; would subvert the
purpose of the Act, which includes
the protection of the authority,
independence and dignity of the legislature and the enabling of them
to carry out their constitutional
functions, and would undermine and
impede the important constitutionally prescribed role of Parliament
as the national legislative
authority. It was also contended on
behalf of the Respondents that the drafting history of the Act does
not support the views of
the DA. Moreover, the provisions of s 11 do
not threaten or infringe the functional independence of Parliament,
nor does the section
result in a usurpation of power. According to
Mr. Gauntlett, the intervention of the security services in
circumstances where members
conduct themselves in a disruptive manner
rather facilitates the proper functioning of Parliament as opposed to
impeding it.
[17] There was also a complaint by Mr.
Gauntlett that the DA impermissibly sought to expand its
constitutional attack in its Heads
of Argument by referring to
further sections of the Constitution that were not initially
mentioned in the DA’s Founding Affidavit.
This complaint can
be dealt with up-front. It is correct that in the Heads of Argument
ss 201, 207 and 209(2) of the Constitution
were for the first time
relied upon in order to expand the DA’s challenge to the
constitutional validity of s 11. In my view
the crucial question is
whether the references to other constitutional provisions in the
Heads of Argument of the DA introduce
a new cause of action. In this
regard see South African Police Service v Solidarity obo Bernard
2014
(6) SA 123
(CC).
[18] The substratum of the DA’s
case is principally centered on the contention that s 11 is contrary
to the provisions of
s 58 and s 71 of the Constitution, which
guarantee freedom of speech in the NA and NCOP (subject to its Rules
and orders) and that
it violates the separation of powers doctrine.
[19] In the present instance, as
previously stated, the attack by the DA against s 11 essentially
raises an interpretative
question, based on undisputed facts, which
enquiry primarily rests on the Constitution. It is therefore
necessary to consider
the legislative framework of the relevant Act
whose provision is under attack in its entirety as well as the
Constitution as a
whole. On a conspectus of all the papers filed of
record, the references to the further sections in the Constitution by
the DA
do not raise a new cause of action. In fact, they only augment
an already existing challenge. Moreover, the reliance on ss 201,
207
and 209(2) of the Constitution, which essentially relate to the
political responsibility of the defence force, the police and
the
intelligence services has been covered in the original application.
I did not get the impression that the Respondents’
complaint is
that, had the DA expressly referred to ss 201, 207 and 209(2) in the
founding affidavit, they would have conducted
their case differently.
The Respondents in my view will suffer no prejudice if these sections
of the Constitution are taken into
account as part of the overall
interpretative enquiry to be conducted by this Court, and, as a
result, the DA’s reliance
on such sections is allowed.
Principles of Interpretation:
[20] It is now well established in our
law that the Constitution requires judicial officers to read
legislation, where possible,
in ways which give effect to its
fundamental values. In this regard, in the matter of Investigating
Directorate: Serious Economic
Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd and Others v
Smith NO 2001(1) SA 545
CC, it was held that the Courts are under a
duty, when the constitutionality of legislation is in issue, to
examine the objects
and purport of an Act and to read the provisions
of the legislation, so far as possible, in conformity with the
Constitution.
On the other hand the Legislature is under a duty to
pass legislation that is reasonably clear and precise, enabling
citizens and
officials to understand what is expected from them. It
is often required by Courts to strike a balance to resolve this
tension
when considering the constitutionality of legislation.
Therefore it is imperative, where a legislative provision is
reasonably
capable of a meaning that places it within constitutional
bounds, that it should be preserved. Only if this is not possible
should
resort be had to the remedy of reading in or notional
severance. See 558 G – 560 A.
[21] In Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012 (4) SA 593
(SCA), a decision by the
Supreme Court of Appeal on interpretation of legislation or
documents, the present state of the law was
expressed as follows (at
603 F – 604 C):
“Interpretation is the process of
attributing meaning to words used in a document, be it legislation,
some other statutory
instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in
the light of
the document as a whole and the circumstances attendant
upon its coming into existence. Whatever the nature of the document,
consideration
must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which the
provision
appears; the apparent purpose to which it is directed; and
the material known to those responsible for its production. Where
more
than one meaning is possible, each possibility must be weighed
in the light of all these factors. The process is objective, not
subjective. A sensible meaning is to be preferred to one that leads
to insensible or unbusinesslike results or undermines the apparent
purpose of the document. Judges must be alert, and guard against, the
temptation to substitute what they regard as reasonable,
sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide
between
interpretation and legislation;…”
Discussion:
[22] Applying these stated principles
and approach to the provisions of s 11, the question now is whether
the reference to ‘a
person’ is reasonably capable of
including ‘a member’ and, if so, whether such meaning is
congruent with section
58 (1) and 71(1) of the Constitution and the
doctrine of the separation of powers.
[23] The point of departure is to have
regard to the Act in its entirety. In this instance the preamble to
the Act clearly demonstrates
the intention to provide to Parliament
and its members‘such further privileges and immunities in order
to protect the authority,
independence and dignity of the
legislatures and their members to enable them to carry out their
constitutional functions.’
[24] On a plain reading of the text a
number of sections in the Act make reference to a ‘member’
and ‘a person’
interchangeably. Some of the sections in
the Act indeed proceed from the premise that a ‘member’
is to be construed
to fall within the definition of a ‘person’.
In this regard section 13 provides as follows:
“13. Conduct constituting
contempt. - A member is guilty of contempt of Parliament if the
member –
(a) contravenes section 7, 8, 10, 19,
21 (1) or 26;
(b) commits an act mentioned in section
17 (1) (a), (b) or
(c) or (2) (a), (b), (c), (d) or (e);
(c) wilfully fails or refuses to obey
any rule, order or resolution of a House or the Houses; or
(d) commits an act which in terms of
the standing rules constitutes-
(i) contempt of Parliament; or
(ii) a breach or abuse of parliamentary
privilege.
[25] Section 7 is headed “Prohibited
acts in respect of Parliament and members,” and provides that
“A person may
not” commit a range of offences labeled (a)
– (f). It follows that the reference to ‘a person’
in s 7 must
be construed to include ‘a member’. In fact
section 7(e) provides that ‘a person’, which includes ‘a
member’, may not ‘…while Parliament or a House or
committee is meeting, create or take part in any disturbance
within
the precincts’. Similarly, the reference to ‘a person’
in section 8(1), which is headed,” Improper
influence of
members”- must be construed to include a member. In terms of
such section, such persons are precluded from taking
certain measures
by inter alia fraud, intimidation, force, insults or threats of any
kind to induce a benefit of any nature. The
same applies to sections
19 and 21(1) where the reference to ‘a person’ must be
read to include ‘a member’.
[26] On the other hand, there are
sections in the Act that specifically state whether a reference to
“persons” includes
members. For instance, in section 25
a member is explicitly excluded from the provision, as it reads, ‘A
person, other than
a member,..’. On the other hand the
provisions in Section 27 explicitly include, a member, as it reads’,
A person,
including a member,..’.
[27] The provisions of s 11 under
attack fall under chapter 3, which chapter is headed ‘Privileges,
Immunities, Independence
and Protection of Members and Parliament’.
In the context in which the section appears and given the ordinary
purpose at
which it is directed, the section does not grant a
privilege or an immunity (as reflected in the preamble) to the House
as a whole
or to members in general. It is rather a tool to maintain
order and it indeed grants a particular power to the Speaker, the
Chairperson
or a designated presiding officer, to summarily order the
arrest and removal from Parliament of a person who creates a
disturbance
or takes part in any disturbance in the precincts while
Parliament or a House or committee is meeting.
[28] Our Higher Courts have repeatedly
stated that Parliament has an important and very special role to play
in our constitutional
democracy. As was stated in Doctors for Life
International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6)
SA 416
CC at 437 E. ‘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” ’.
[29] There is another principle equally
at work in cases of this nature, namely, that the provisions of the
Act need to be interpreted
in congruence with the Constitution. In De
Lille at 869 A-B, the Court held that ‘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 authorized
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.’
[30] Taking into account the ordinary
rules of grammar and the syntax in which the particular wording of
s11 is expressed, it is
indeed reasonably possible to construe the
reference to ‘a person’ in the provision to include a
‘member’.
It is not difficult to imagine a situation
where a member may create or cause a disturbance of such gravity that
it undermines
the authority or dignity of Parliament as a whole. In
those instances common sense dictates that the Presiding Officer must
be
in a position to take decisive action as an orderly measure to
protect the dignity of Parliament from obstruction, disruption and
disturbances.
[31] On the other hand, objectively
viewed, the word ‘disturbance’ as it appears in the Act,
has an extremely wide connotation.
It is defined as ‘any act
which interferes with or disrupts or which is likely to interfere
with or disrupt the proceedings
of Parliament or a House or
committee’ (My underlining). In real terms the definition is so
broad that the exercise of the
right to free speech in the NA, NCOP
or parliamentary meeting, which ordinarily and appropriately includes
robust debate and controversial
speech, can certainly constitute an
act which can be construed to interfere with or disrupt proceedings.
This extremely broad definition
of the word “disturbance”
in my view certainly creates tension as it detracts from a member’s
constitutional
privilege of freedom of speech and freedom from arrest
as envisaged in terms of s 58(1) and 71(1) of the Constitution. As
was stated
in Mazibuko NO v Sisulu and Others NNO
2013 (4) SA 243
WCC
at 255 F:
“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. Of course, once the debate takes place and
reasoned voices across the floor
are heard, the majority may well
vote the matter down and that would be the end of it. But what cannot
be justified is that the
debate should not be allowed to take place.”
[32] In the De Lille case supra at 873
B, the Court recognized that in order to achieve the result of
ascribing any other ‘privilege
or immunity’ to limit the
right of free speech in the NA as protected under s 58 (2), national
legislation was necessary.
In this regard Mr. Rosenberg argued that s
11 of the Act is not the type of provision envisaged in the De Lille
case and under
s 58 (2) and 71(2); but rather that legislation
enacted in terms of s 58 (2) (or 71(2)) can only limit the privileges
in s 58(1)
(or 71(1)) if it creates a new (‘or other’)
privilege or immunity for the House or Members. In this regard
reference
was made to sections 12 and 13 of the Act which allow the
House to hold its members in contempt and deal with the member
accordingly.
Such sections essentially limit an existing privilege.
[33] Mr. Gauntlett responded by
acknowledging that s 11 of the Act does not apply to a disturbance by
a member of the NA or NCOP
that may fall within the ambit of sections
[58(1)(b)] and [71(1)(b)] of the Constitution, but persisted that
properly interpreted,
the latter provisions do not protect members
against disruptive conduct amounting to a ‘disturbance’
as defined in
the Act and this type of conduct is accordingly not
protected by the Constitution.
[34] The provision in s 11 of the Act,
in its true form, does not create a new privilege for a House or its
Members. Rather, it
gives a particular power to the Speaker, the
Chairperson and other presiding officers. It further allows a member
to be arrested
not only for disruptive conduct but also for what a
member may have said which may ultimately amount to disruptive
conduct.
[35] The primacy of a Member of
Parliament’s right to freedom of speech and more particularly
the right to articulate the
needs, views and political and economic
attitudes of their constituency freely and without fear has been
consistently recognized
by our Courts. See De Lille supra at
871G-872A and 874G – 875A; Economic Freedom Fighters and Others
v Speaker of the National
Assembly and Others (21471/2014)
[2014]
ZAWCHC 204
(23 December 2014).
[36] In the De Lille case supra, at 872
I – 873 A and 873 B Mohamed CJ said the following regarding the
right to freedom of
speech in the Assembly:
“Not only is the right to freedom
of speech in the Assembly expressly constitutionalized in s 58(1)(a)
(subject to its Rules
and orders), but the ‘Rules and orders’
which the Assembly makes to control its ‘internal arrangements,
proceedings,
and procedures’ must, in terms of s 57(1)(b), have
due regard to representative and participatory democracy”.
and
‘Section 58(2) does not itself
‘prescribe’ any other ‘privilege or immunity’,
to limit the right of
free speech in the Assembly protected by s 58
(1). National legislation is necessary to achieve that result.’
[37] As noted in the De Lille case the
right of members of the NA to freedom of speech as entrenched in the
Constitution is subject
to the ‘Rules and orders’ of the
Assembly. Importantly, the power to make the Rules and orders vests
in the NA itself
(according to section 57(1)(b)). Section 70(1)(b)
grants identical power to the NCOP.
[38] The NA and NCOP have indeed
established Rules empowering presiding officers to deal extensively
with members who deliberately
disobey a Rule, are grossly disorderly,
disregard an order or are in contempt of the authority of a presiding
officer in Parliament.
To that extent Rule 51 of the NA reads:
“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
37 in the NCOP is similar)
[39] In terms of Rule 52 of the NA a
member may be suspended or censured. (In the NCOP Rule 38 is
applicable). Furthermore, a member
may be required to leave the
precincts of Parliament and not to return until the sanction to be
imposed upon him or her is announced
(Rule 53). In the event of grave
disorder, the meeting may be adjourned or suspended for a period of
time. In this regard Rule
56 of the NA reads as follows:
“In the event of grave disorder
at a meeting, the presiding officer may adjourn the meeting, or may
suspend the proceedings
for a period to be stated by him or her”
(In the NCOP Rule 41 is similar.)
[40] It is noteworthy that Parliament
in its Rules does not rely on force as an appropriate measure to
protect its orderly proceedings.
Rule 44(1) of the NA does recognize
that freedom of speech and debate is ‘subject only to the
restrictions placed on such
freedom in terms of the Constitution, or
any other laws or these Rules.’ However the freedom from
arrest as contemplated
in ss 58(1)(b) and 71(1)(b) of the
Constitution on the other hand has no such limitation.
[41] In as much as Parliament is
entitled to conduct its own affairs, the privilege of freedom of
speech is vital to allow Parliament
to perform its function of
permitting unrestrained debate about matters of public importance.
The Constitutional Court in Dikoko
v Mokhatla
2006 (6) SA 235
(CC) at
252H- 253A, stated the following regarding privilege in a
constitutional democracy:
“Immunising the conduct of
members from criminal and civil liability during council
deliberations is a bulwark of democracy.
It promotes freedom of
speech and expression. It encourages democracy and full and effective
deliberation. It removes the fear
of repercussion for what is said.
This advances effective democratic government.”
[42] In weighing up the apparent
purpose of s 11 and considering the ambit of its application, Mr
Rosenberg’s argument that
Section 11 infringes a member’s
privilege to free speech and his or her privilege not to be arrested
as protected under Section
58(1)(b) and 71(1)(b) cannot be faulted.
This argument is far more plausible and constitutionally acceptable
than the contention
made by Mr Gauntlett. Section 58(2), in my view,
envisages new privileges or powers which may limit freedom of speech,
but such
powers or privileges can only be to the benefit to the House
as a whole, or to its members in general, and not solely to the
Speaker
and or Chairperson, or other designated Presiding Officer as
contemplated in Section 11.
[43] The power of the presiding officer
to regulate internal proceedings must be dealt with in the rules and
orders. In my view,
simply put, the provision in s 11 is not
envisaged by s 58(2) and s 71(1) and do not pass constitutional
muster as they permit
a member to be arrested for what he or she may
say on the floor of a House. This in the true sense of the word
violates a member’s
constitutional privilege to freedom of
speech and freedom from arrest as guaranteed under ss 58(1) and 71(1)
of the Constitution.
The provision in s 11 is overbroad and as a
result constitutionally flawed.
[44] The argument that absent s 11 the
NA and NCOP will be unduly impeded in their duty and functions and
members may now disrupt
the ordinary functions of Parliament with
impunity, is unconvincing. Parliament has more than sufficient tools
to maintain order
in its precincts. It has the Rules and the power to
hold members in contempt. There are offences created by s27, and the
power
to allow the security forces to enforce them as contemplated in
s 4 of the Act. In fact s 4 of the Act provides that members of
the
security forces may enter the precincts of Parliament and perform any
policing functions in the precincts and inter alia take
action to
prevent immediate danger to life or safety of any person or damage to
any property.
[45] In view of the finding above it is
unnecessary to deal with the challenge by the DA that s11 also
violates the doctrine of
separation of powers.
Remedies:
[46] In terms of s 172 of the
Constitution, this Court is now obliged to make an order that is just
and equitable under the circumstances.
The DA has proposed a number
of ways to remedy s 11 in order to place it within constitutional
bounds. This Court is however not
limited to those specific remedies
sought by the DA.
[47] As a result of the finding that a
member may not be arrested under s 11 if the conduct that led to the
arrest is protected
under s 58(1)(b) and 71(1)(b), the most
appropriate remedy in my view would be notional severance to bring
s11 within constitutional
bounds. It will leave the text unaltered
but limits the extent of its application by subjecting it to a
condition.
[48] In the result the following order
is made:
1. The Application succeeds with costs.
2. Section 11 of the Powers and
Privileges and Immunities of Parliament and Provincial Legislatures
Act, No. 4 of 2004, is declared
inconsistent with the Constitution
and invalid” to the extent that it permits a member to be
arrested for conduct that is
protected by sections 58(1)(b) and
71(1)(b) of the Constitution”.
3. The order in paragraph 2 is
suspended for a period of 12 months in order for Parliament to remedy
the defect.
4. The orders in paragraphs 2 and 3
above are referred in terms of
s 15(1)(a)
of the
Superior Courts Act,
NO. 10 of 2013
, to the Constitutional Court for confirmation.
5. The Respondents are to pay the costs
occasioned by the employment of two Counsel, jointly and severally,
the one to pay the other
to be absolved.
LE GRANGE, J
I concur
CLOETE, J
I concur
BOQWANA, J