Democratic Alliance v Speaker, National Assembly and Others

• Jurisdiction: South Africa
• Judge: Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Nkabinde J, Nugent AJ, Van Der Westhuizen J and Zondo J
• Judgment Date: 18 March 2016
• Citation: 2016 (3) SA 487 (CC)
• Docket Number: CCT 86/15 [2016] ZACC 8
• Hearing Date: 05 November 2015
• Counsel: SP Rosenberg SC (with MJ Bishop) for the applicant. JJ Gauntlett SC (with K Pillay) for the respondents.
• Court: Constitutional Court

Madlanga J (Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo J concurring): A

Introduction

[1] A parliamentary system is central to most modern democracies. It is to this system that the first founding provision of our Constitution B inter alia alludes. [2] By its very nature, Parliament is a body that functions through a deliberative process. Its decisions are the result of that process. Axiomatically, that process can only be meaningful if all members of Parliament are given room freely to make their points and express their opinions. Without freedom of speech in Parliament, products of the parliamentary system would be but a sham. That, in turn, would be pernicious to democracy itself. C

[2] Unsurprisingly, members of our Parliament have been afforded freedom of speech. This is provided for in ss 58(1)(a) and 71(1)(a) of the Constitution in respect of the two Houses of Parliament, the National Assembly and National Council of Provinces, respectively. D Further, there are cognate immunities, cognate because they flow from the idea of guaranteeing free speech in Parliament. This is plain from the words of Mokgoro J dealing with an analogous situation in Dikoko v Mokhatla:

'Immunising the conduct of members from criminal and civil liability E during . . . deliberations is a bulwark of democracy. It promotes freedom of speech and expression. It encourages democracy and full and effective deliberation. It removes the fear of repercussion for what is said. This advances effective democratic government.' [3]

What are the immunities? Sections 58(1)(b) and 71(1)(b) immunise F members of the National Assembly and National Council of Provinces, respectively, from civil or criminal proceedings, arrest, imprisonment or damages. [4] Without these immunities, free speech would be severely curtailed.

Madlanga J (Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo J concurring)

A [3] This freedom is at the centre of these proceedings. The applicant, the Democratic Alliance, which is the largest opposition party in Parliament, is seeking confirmation of an order declaring s 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act [5] (Act) constitutionally invalid. [6] This declaration was made by the High Court of B South Africa, Western Cape Division, Cape Town (High Court). [7]

Madlanga J (Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo J concurring)

The respondents [8] seek leave to appeal against that declaration.The A Democratic Alliance is cross-appealing against the remedy and challenges certain findings of the High Court.

[4] The basis for the declaration of constitutional invalidity by the High Court is that s 11 of the Act impermissibly curtails a member's privilege of free speech in Parliament by providing for the arrest of members of B Parliament (members) who create or take part in a disturbance.

Brief background

[5] The facts giving rise to this litigation received wide publicity. They relate to the state of the nation address delivered by the President of the C Republic on 12 February 2015 at a joint session of the two Houses of Parliament. Shortly after the address had commenced, a member of the Economic Freedom Fighters, a political party represented in Parliament, rose to ask a question. The enquiry was when — in accordance with a report by the Public Protector — the President was to repay money spent on certain upgrades to his private residence at Nkandla. On the day, the D Speaker of the National Assembly (Speaker) and the Chairperson of the National Council of Provinces (Chairperson) were alternating in presiding over the proceedings.

[6] When the question was raised, the Speaker was in the chair. Her E response was that the President's state of the nation address was not the occasion for raising questions of that nature. Dissatisfied with the Speaker's response, other members of the Economic Freedom Fighters rose — one after the other — and interjected. The issues they raised related to the repayment and the President's obligation to answer questions put to him by Parliament. That, despite the Speaker's persistence in her F response and repeated requests that they take their seats for the President to continue with his address. Eventually the Speaker asked members of the Economic Freedom Fighters to leave the parliamentary chamber. They did not. They were then forcibly removed in terms of s 11 of the Act.

[7] At that point the parliamentary leader of the Democratic Alliance G sought clarity on whether members of the South African Police Service were involved in the removal. After some equivocation the Chairperson — who was in the chair at that stage — ultimately confirmed that the police were involved in the removal. The leader of the Democratic Alliance opined that the forced removal was unconstitutional and H amounted to a breach of the separation-of-powers doctrine. Members of the Democratic Alliance then left the chamber voluntarily.

[8] The Democratic Alliance launched proceedings in the High Court seeking a declarator that s 11 is constitutionally invalid. It asked the I

Madlanga J (Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo J concurring)

A court to read in words that would exclude members of Parliament from the 'person' liable to be arrested and removed in terms of s 11. That means s 11 should be made to read as being applicable only to people who are not members of Parliament. In the alternative, the Democratic Alliance sought the excision of the words 'arrest' and 'security services' B from s 11. The effect of this would be that there could be a removal — but not arrest — of members and that removal should be by persons other than members of the security services. [9] In a second alternative the Democratic Alliance sought notional severance in order to prevent the application of s 11 to any exercise of the parliamentary privilege of freedom of speech. In a further alternative the Democratic Alliance C sought an order declaring that, as a matter of interpretation, s 11 is not applicable to the exercise of parliamentary privilege.

[9] The High Court held that it was reasonable to construe 'person' in s 11 to include a member of Parliament. It also concluded that 'disturbance', as it appears in the section, was so impermissibly wide as to D encompass the robust debate and controversial speech that are characteristic of parliamentary discourse. It held that this wide definition detracted from the members' parliamentary privilege of free speech. Consequently it found s 11 to be constitutionally invalid. In order to remedy the defect, it ordered notional severance. It left the text of the E provision unaltered but limited its applicability as reflected in the court order. [10] The court suspended the order of constitutional invalidity for a period of 12 months to afford Parliament an opportunity to remedy the defect.

[10] This matter raises a number of issues. Does s 11 infringe the F privilege of freedom of speech of members of Parliament? What is the reach of 'disturbance' as envisaged in s 11? In that regard, what constitutes 'interference' and 'disruption' in the definition of 'disturbance'? Does 'person' in s 11 of the Act include a member of Parliament? Does an interpretation that gives an affirmative answer to the last question sit comfortably with the entire context of the Act? Does this G interpretation impinge on the parliamentary privilege of free speech guaranteed in ss 58(1) and 71(1) of the Constitution? To what extent and by what means may this privilege be limited? It is well to start by examining the purpose of the privilege of free speech.

Purpose of free speech H

[11] South Africa is a constitutional democracy. Hard-won democracy that came at a huge cost to many; a cost that included arrest, detention, torture and — above all — death at the hands of the apartheid regime. The importance of our democracy, therefore, cannot be overstated. It is the duty of all, in particular the three arms of state, jealously to safeguard I that democracy. Focusing on Parliament, the pluralistic nature of our

Madlanga J (Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo J concurring)

parliamentary system [11] must be given true meaning. It must not start A and end with the election to Parliament of the various political parties. Each party and each member of Parliament have a right to full and meaningful participation in and contribution to the parliamentary process and decision-making. By its very nature, Parliament is a deliberative body. Debate is key to the performance of its functions. For deliberation B to be meaningful, and members effectively to carry out those functions, it is necessary for debate not to be stifled. Unless all enjoy the right to full and meaningful contribution, the very notion of constitutional democracy is warped.

[12] Though said in the context of municipalities, I am drawn to the concurring words of Sachs J in Masondo: C

'The requirement of fair representation emphasises that the Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered. D The dialogic nature of deliberative democracy has its roots both in international democratic practice and indigenous African tradition. It was through dialogue and sensible accommodation on an inclusive and principled basis that the Constitution itself emerged. It would accordingly be perverse to construe its terms in a way that belied or minimised the importance of the very inclusive process that led to its...