Democratic Alliance v Speaker, National Assembly and Others

• Jurisdiction: South Africa
• Citation: 2016 (3) SA 487 (CC)

Democratic Alliance v Speaker, National Assembly and Others
2016 (3) SA 487 (CC)

2016 (3) SA p487

Citation	2016 (3) SA 487 (CC)
Case No	CCT 86/15; [2016] ZACC 8
Court	Constitutional Court
Judge	Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Nkabinde J, Nugent AJ, Van Der Westhuizen J and Zondo J
Heard	November 5, 2015
Judgment	March 18, 2016
Counsel	SP Rosenberg SC (with MJ Bishop) for the applicant.; JJ Gauntlett SC (with K Pillay) for the respondents.

Flynote : Sleutelwoorde B

Constitutional law — Legislation — Validity — Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, s 11 — Arrest and C removal of any person creating or joining disturbance during parliamentary, house or committee sittings — Provision limiting members' parliamentary privileges of free speech and against arrest — Provision amended by insertion of words 'other than a member' after words 'any person'.

Parliament — Members — Privileges — Of free speech and against arrest — Violated by provision in s 11 of Powers, Privileges and Immunities of D Parliament and Provincial Legislatures Act 4 of 2004 allowing arrest and removal of 'any person' creating a 'disturbance' — Provision amended by insertion of words 'other than a member' after words 'any person' — Constitution, ss 58(1) and 71(1).

Headnote : Kopnota

The issue was whether the Constitutional Court would confirm the E Western Cape High Court's invalidation, on constitutional grounds, of s 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004. The provision — under the heading 'Persons creating a disturbance' — allows the speaker of the National Assembly (or Chairperson of the National Council of Provinces) to call on 'the security services' to arrest and remove from parliamentary precincts 'a person who creates or F takes part in any disturbance while Parliament . . . is meeting'. The case had its origin in the physical ejection from Parliament, during the State President's 2015 state of the nation address, of the entire parliamentary caucus of the Economic Freedom Fighters. The security personnel involved were members of the police.

In the High Court the DA sought a declarator that s 11 did not apply to members G of Parliament, arguing that the Speaker (or Chairperson) could not invoke it to eject members from its chambers during sessions. In the alternative it argued that s 11 was unconstitutional because it infringed on members' right of free speech within Parliament. The issues to be decided were thus whether 'a person' included a member of Parliament and, if so, whether s 11 was unconstitutional to the extent that it permitted members to be H arrested for conduct that was protected under s 58(1) and s 71(1) of the Constitution. [*]

2016 (3) SA p488

A The High Court held that, while it was indeed reasonable to construe 'a person' to include a member, the connotation of the word 'disturbance' was wide enough to encompass the broad debate and controversial speech characteristic of parliamentary discourse, and that hence s 11 impinged on members' free-speech privilege. The High Court accordingly declared s 11 unconstitutional. To remedy the defect the High Court limited the applicability of s 11 by declaring it to be invalid 'to the extent that it permits a member to be arrested B for conduct that is protected by s 58(1)(b) and 71(1)(b) of the Constitution'.

In an appeal to the Constitutional Court the DA sought confirmation of the High Court's decree while the respondents sought leave to appeal against it. The DA also cross-appealed against the High Court's remedy and challenged certain of its findings. The respondents argued that s 11 did not infringe members' C constitutional privileges but merely prohibited conduct or speech by members that stopped, or threatened to stop, parliamentary proceedings, behaviour that was not constitutionally protected.

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

The word 'person' in s 11 included members of Parliament. This was plain from D the grammatical meaning of the word (members were persons); the context provided by the Act (the word was preponderantly used so as to include members); and the absurdity arising from interpreting it otherwise (s 11 was intended to prevent the incapacitation of Parliament by disturbances, which would more likely result from the conduct of members than non-members) (see [20] – [33]). The result was that s 11 limited members' free speech (see [39]), E particularly in the light of the wide import of the word 'disturbance' (see [43]). While limitation was permissible to prevent the disruption of Parliament (see [38]), to be constitutional it had to originate in the parliamentary rules and orders envisioned by ss 57 and 70 of the Constitution, not in an Act of Parliament (see [39], [47]). As it stood, s 11 was unconstitutional to the extent that it permitted members to be arrested or F imprisoned for conduct protected under s 58(1) and s 71(1) of the Constitution (see [40] – [42] and [52]). If s 11 were intended to apply to all conduct that annoyed the presiding officer, it would erode the very idea of parliamentary free speech and render s 11 unconstitutional for impermissible overbreadth (see [44] – [45]). To make s 11 constitutionally compliant, the words 'other than a member' would be read in after the word 'person' (see [60]). Hence both the appeal and the cross-appeal would be dismissed G (see [59], [62]).

Minority concurring judgment per Nugent AJ

The word 'arrest' in s 11 had a wider meaning than that ascribed to it by the majority. It was not confined to arrest with the object of prosecution but included the mere act of seizure or forcible restraint, as had happened in the H present case (see [73], [76] – [78]). This was contrary to s 58(1)(b) of the Constitution (see [80]).

Dissenting judgment per Jafta J (Nkabinde J concurring)

The word 'person' in s 11 had to be read down so that it excluded members of Parliament (see [82], [127]). So construed, s 11 was constitutionally I compliant (see [134]).

Cases Considered

Annotations

Case law

Abahlali BaseMjondolo Movement SA and Another v Premier of the Province of KwaZulu-Natal and Others 2010 (2) BCLR 99 (CC) ([2009] ZACC 31): J dictum in para [118] applied

2016 (3) SA p489

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others A 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in para [90] applied

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): dictum in para [32] applied

Bid Industrial Holdings (Pty) Ltd v Strang and Another B (Minister of Justice and Constitutional Development, Third Party) 2008 (3) SA 355 (SCA) ([2008] 2 All SA 373; [2007] ZASCA 144): dictum in para [59] applied

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) (2014 (8) BCLR 869; [2014] ZACC 16): dictum in para [28] applied

Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA 413 (CC) (2003 (2) BCLR 128; [2002] ZACC 28): C dictum in paras [42] – [43] applied

Democratic Alliance v Speaker of the National Assembly and Others 2015 (4) SA 351 (WCC) ([2015] ZAWCHC 60): confirmed on appeal, order varied

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): D dictum in para [52] applied

Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1; [2006] ZACC 10): dictum in para [39] applied

Duncan v Minister of Law and Order 1986 (2) SA 805 (A): referred to

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another 2002 (4) SA 613 (CC) (2002 (2) SACR 105; E 2002 (7) BCLR 663; [2002] ZACC 6): referred to

Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) (2001 (2) SACR 197; 2001 (11) BCLR 1197): referred to

Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): referred to F

Hoban v Absa Bank Ltd t/a United Bank and Others 1999 (2) SA 1036 (SCA) ([1999] 2 All SA 483; [1999] ZASCA 12): dictum in para [20] applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) (2000 (2) SACR 349; 2000 (10) BCLR 1079; [2000] ZACC 12): dictum in para [23] applied G

Kubyana v Standard Bank of South Africa Ltd 2014 (3) SA 56 (CC) (2014 (4) BCLR 400; [2014] ZACC 1): dictum in para [18] applied

Matlou v Makhubedu 1978 (1) SA 946 (A): referred to

Mazeka v Minister of Justice 1956 (1) SA 312 (A): referred to

Mistry v Interim Medical and Dental Council of South Africa and Others H 1998 (4) SA 1127 (CC) (1998 (7) BCLR 880; [1998] ZACC 10): dictum in para [32] applied

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): dictum in para [74] applied I

Oriani-Ambrosini v Sisulu, Speaker of the National Assembly 2012 (6) SA 588 (CC) (2013 (1) BCLR 14; [2012] ZACC 27): dictum in para [43] applied

Phumelela Gaming and Leisure Ltd v Gründlingh and Others 2007 (6) SA 350 (CC) (2006 (8) BCLR 883; [2006] ZACC 6): referred to J

2016 (3) SA p490

R v Britz 1949 (3) SA 293 (A): referred to A

Richter v Minister of Home Affairs and Others 2009 (3) SA 615 (CC) (2009 (5) BCLR 448; [2009] ZACC 3)...