Constitutional Court judgment impact on Powers, Privileges & Immunities of Parliament Act; Ad Hoc Committee terms of reference

Meeting report

Constitutional Court judgement
Ms Desiree Swartz, Parliamentary Legal Adviser, briefed the Committee on the salient points raised in the Constitutional Court judgement in the matter of the Democratic Alliance v Speaker of the National Assembly and Others (CCT86/15) regarding Section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures ACT 4 of 2004 (PPIPPLA).

On 18 March 2016 the Constitutional Court handed down a judgement which stated that the omission of the words “other than a member” after the word “person” at the beginning of Section 11 of PPIPPLA was inconsistent with the Constitution. The Constitutional Court confirmed that Section 11 of PPIPPLA is to now be read as follows: “11. A person, other than a member”, 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 services.”

After the forceful removal of certain EFF Members in Parliament in terms of Section 11 of PPIPPLA, the DA asked the Court to read in words that would exclude Members of Parliament from the “person” liable to be arrested and removed in terms of Section 11, meaning that Section 11 should be made applicable only to people who were not Members of Parliament. Alternatively, that the words “arrest” and “security services” be excised from Section 11, meaning there could be removal but no arrest of Members and that removal should be by persons other than security services.

The Constitutional Court found it was reasonable to construe “person” in Section 11 to include a Member of Parliament. It also held that “disturbance” was so wide as to encompass the robust debate and controversial speech that were characteristic of parliamentary discourse. It was of the view that this wide definition detracted from the Members’ parliamentary privilege of speech. As a result, it found Section 11 of PPIPPLA to be unconstitutional.

The court further indicated this Section was invalid to the extent that it permitted a Member to be arrested for conduct that was protected by Sections 58(1)(b) and 71(1)(b) of the Constitution – namely that Members were not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything said in the National Assembly. The court stated these immunities in Sections 58(1)(b) and 71(1)(b) of the Constitution were absolute and not subject to rules and orders.

The court further stated privilege contained in Sections 58(1)(a) and 71(1)(a) of the Constitution can never go as far as to give members licence to disrupt proceedings that Parliament or the House would be incapacitated from conducting its business. These sections make freedom of speech subject to the “rules and orders” envisaged in Sections 57 and 70.

Concerning disturbance, the court stated disturbance could not be conduct that amounted to interference or disruption. To warrant removal, interference or disruption must go beyond what is the natural consequence of robust debate. It further indicated interference and disruption that may be sufficient for removal of a Member must be of a nature that hamstrings and incapacitates Parliament from conducting its business. There must be no anticipation or resumption of business within a reasonable time.

The court contended that Section 11 of PPIPPLA was constitutionally invalid because in terms of Sections 58(1)(a) and 71(1)(a) of the Constitution, parliamentary free speech was subject to the rules of the NA and NCOP, and not an Act of Parliament. Section 11 of PPIPPLA was not a rule or order of the NA or NCOP. The language of these Sections is plain and makes freedom of speech in the NA and NCOP subject to Rules and Orders, and nothing else.

Therefore, the Constitutional Court judgement emphasised the following:

Freedom of speech subject to the “rules and orders” envisaged in Sections 57 and 70 – meaning that rules and orders may, within bounds that do not strip the privilege of its essential content, limit parliamentary free speech.
The immunities in 58(1)(b) and 71(1)(b) of the Constitution, i.e. the immunity attached to parliamentary free speech are absolute and not subject to rules and orders. This is the immunity from civil or criminal proceedings, arrest, imprisonment or damages for parliamentary free speech.

House Resolutions for consideration by the Committee
Dr Nazeem Ismail, Undersecretary: Research and Parliamentary Unit, stated that in view of the recent Constitutional Court judgement on 18 March 2016, Democratic Alliance v Speaker of National Assembly and Others [2016] ZACC 8, there was a need to review the provisions of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (the Act). Regarding the terms of reference, the Act should be reviewed in its entirety, and in doing so the following had to be taken into account:

The Constitutional Court judgement
Any other case law, existing legislation, and international best practice relating to parliamentary powers and privileges

Discussion
Prof A Lotriet (DA) supported the terms of references because certain things needed to be tightened, hence the reference to the minority judgement because it contained important points that could be used for the drafting of the resolutions to be forwarded to the Rules Committee.

Ms N Mokoto (ANC) seconded the proposed terms of reference.

Prof Lotriet wanted to know if the provisions of the minority judgement would be taken into consideration when resolutions are taken to the Rules Committee regarding the Constitutional Court judgement.

The Chairperson said the Committee should not rush into making suggestions for now. The Committee should first look at what the minority judgement. Then the whole matter would be looked at, holistically.

Ms N Mazzone (DA) was concerned that there was a contradiction between what was implemented in Parliament and what the Constitution allowed. She wondered about what the resolution was going to say to the Rules Committee going forward so that any ruling from the Chairperson was not in conflict with the Constitution.

The Chairperson said Members must not rush to make proposals to the Rules Committee.

Ms Mokoto stated the Constitutional Court judgement catered for the minority judgement, so it was important for Members to use the window period to fully complete the matter of resolutions to the Rules Committee.

Mr R Tseli (ANC) asked for clarity on the meaning of “arrest and security services”. It appeared the judgement did not have a problem with the removal of Members, but the problem lay with the inclusion of “arrest of Members”.  He was concerned about the definition of “disturbance” because what might be a disturbance to an ordinary Member might not be a disturbance to the Speaker, or vice versa.

Ms Swartz, on arrest, stated there was a lot of debate around the matter. It referred to a criminal arrest because if you were arrested for a criminal act, you had to be charged. This meant a Member would, for example, be arrested for pointing a gun at another Member. A Member could not be arrested because of an utterance inside the House because that limited free speech. The court stated the words “arrest” and “security services” could be excised from Section 11, meaning there could be removal but no arrest of Members and that removal should be by persons other than security services.

Mr Tseli stated that “complete removal without arrest” was an issue that could be addressed at another level and that meant a Member would not be arrested in the House.

Ms Mazzone explained that the Constitutional Court stated a Member could not be arrested for his or her utterances in the House and that did not include a criminal act, which dealt with the destruction of property or harming of another person.

Ms Swartz, concerning disturbance, stated the court was vague on this matter. It was at the discretion of the Speaker but the Speaker must not eliminate free speech. Disturbance only mattered when Parliament or the House could not do its work.

The Chairperson stated the ruling made sense. The presiding officer was the one to make a call. The court was correct to leave that in the hands of the presiding officer.

Dr P Maesela (ANC) said Members appeared to be concentrating on “arrest”. The whole issue had to do with the limits regarding your free speech to a point of disturbing the proceedings of the House. A person who was arrested was not a Member. The Committee should rather talk about removal.

The Chairperson said the Committee agreed to the presentation of the judgement and it had to look at the recommendations to the Rules Committee.

Adoption of Minutes
Minutes of Committee meeting held on 27 May 2016 were adopted with amendments. There were no matters arising.

Committee Bill Process
The Committee went through the document highlighting the activities and estimated time for the processing of the Bill in both Houses.

Consideration of proposed dates for the committee meetings
The Committee went through the proposed dates.

Ms Mazzone suggested the Committee not meet on 7 September 2016 because many committees were working that week on finalising legislation.

The Committee agreed to the cancellation of 7 September and agreed to the other dates.

The meeting was adjourned.