Constitutional Court minority judgment & review of Act

Meeting report

Minority Judgment Presentation

Ms Sueanne Isaac, Parliamentary Legal Adviser, took the Members through the majority and minority judgments.

She said the majority judgment, on arrest, stated the creation of or taking part in a disturbance by a Member was a criminal offence in terms of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (PPIPPLA).The possibility of a Member being arrested and subject to criminal processes had a chilling effect on robust speech. This therefore constituted an infringement of Parliamentary free speech. Section 11 directly infringed the immunities from criminal proceedings, arrest and imprisonment enjoyed by Members in terms of sections 58(1)(b) and 71(1)(b) of the Constitution.

With regard to the removal of a Member for causing a disruption, the majority judgment stated that to warrant removal from the Chamber, interference or disruption must go beyond what is the natural consequence of robust debate. Interference and disruption that may be sufficient for the removal of a Member must be of a nature that hamstrings and incapacitates Parliament from conducting its business. Even so, there must be no anticipation of resumption of business within a reasonable time.

Judge Nujent agreed with the majority judgment that:

• ‘Person’ in Section 11 of PPIPPLA applied to Members.
• Section 11 of the Act, in its application to Members, infringed the right of Parliamentary free speech and was inconsistent with the Constitution.
• Disturbances created by Members must be regulated by rules and orders.

He contended that the constitutional prohibition on arrest is wider than what was held in the majority judgment. He was of the view that:

• Arrest in its ordinary meaning is not confined to arrest with the objective of prosecution, but includes seizure or forcible restraint.
• Legislation that permits physical restraint being placed on Members for whatever objective, including mere removal, for what they say in the National Assembly (NA) or the National Council of Provinces (NCOP), offends the Constitution.
• The power to ‘arrest’ in Section 11 is to enable a Member to be seized, to remove them from the NA.

The prospect of being arrested for criminal prosecution would undoubtedly have a chilling effect on debate. The prospect of being ‘seized’ or ‘forcibly restrained’, with any objective, would be just as chilling.

The powers conferred by Section 11, both to ‘arrest’ and to ‘remove’ a Member, whether viewed conjunctively or separately, were constitutionally offensive. This was because any forcible restraint being placed upon a Member, if only with the objective of removal, is prohibited by section 58(1)(b).

 He did not agree that the word ‘person’ in Section 11 of the PPIPPLA included a Member. In his view, the section did not apply to Members of Parliament and consequently it was not constitutionally objectionable. He reasoned that ‘person’ might reasonably be construed to include a Member of Parliament. But ‘person’ had different meanings in the PPIPPLA, as indicated by the context of a particular provision. For instance, in Sections 5, 11 and 25, ‘person’ is used differently. In some instances, it includes Members and in other instances, it excludes Members. The word ‘person’ in Section 11 should be read down so that it excludes Members. On this reading, Section 11 was constitutionally valid.

Legislation must be read through the prism of the Bill of Rights. When the validity of legislation is challenged, the court must examine the objects and purports of the Act and must read provisions, as far as it is reasonably possible, in conformity with the Constitution. Legislation may be read down to make it constitutionally compliant. Reading-down is a principle of constitutional interpretation used when legislation is overboard.

The Constitution, in requiring that legislation be read in conformity with it, authorises courts to read legislation restrictively, if doing so would bring an overbroad provision within the bounds of the Constitution. Where it is reasonably possible to construe a statute in such a way that it does not give rise to constitutional invalidity, such a construction should be preferred to another construction which, although reasonable, would give rise to such inconsistency.

Ms Isaac further indicated that the minority judgment states that ‘person’ in Section 11 is used in different contexts and does not bear the same meaning. In the first context, ‘person’ refers to someone who creates or participates in a disturbance in Parliament. In the second context, ‘person’ refers to someone to whom the power to issue an arrest order is delegated by the Speaker and the Chairperson. That may be a staff member or a Member of Parliament.

Section 11 is in Chapter 3 of PPIPPLA. Chapter 3 seeks to protect Members and Parliament. If ‘person’ in the first part of section 11 includes Member, it defeats the objective of protecting Members of Parliament. However, reading ‘person’ to exclude Members advances the objective of protecting Members and Parliament. Chapter 3 seeks to protect Parliament and Members by creating offences. However, section 27 (Offences) makes no reference to Section 11, and this suggests that its contravention was not regarded as an offence.

Section 11 authorises the removal of a person from the precincts. When applied to a Member, the result would be absurd. If Members were removed from the precincts, they would be prevented from going to their offices and from using other facilities. However, the NA and NCOP have the power to exclude disruptive Members from proceedings for limited periods in terms of its rules and orders. Section 11 must be interpreted purposefully, to protect Parliament and its Members by affording Members privileges and immunities, but also in a manner that promotes the Members’ right to freedom of speech.

The ‘arrest and removal’ in Section 11 limits a members’ right to free speech and freedom of security. Arrest is in conflict with section 58(1)(b). It is also inconsistent with privilege of Members in Section 58(1)(a).

Statutory provisions that limit rights must be read through the lens of the Bill of Rights. Section 11, to the extent that it limits a Member’s right to free speech, is inconsistent with the Constitution. In terms of Section 39(2) of the Constitution, Section 11 must be ascribed a narrower meaning, to remove the inconsistency and preserve the section.

Properly construed, ‘person’ in Section 11 of the Act does not include a Member. To the extent Section 11 authorises the arrest and removal of persons, it does not apply to Members. It is therefore not unconstitutional.

Review of PPIPPLA

Ms Daksha Kassan, Parliamentary Legal Adviser, said her presentation was there to highlight the provisions of the PPIPPLA which had been directly impacted by the majority judgment of the Constitutional Court (CC) judgment in the Democratic Alliance v the Speaker of the National Assembly and others, CCT 86/15, to present proposals for amendments in light of the CC judgment; and to highlight certain provisions of PPIPPLA requiring corrections.

She said the Constitutional Court majority judgment found that the freedom of speech contained in Section 58(1) and 71(1) might be limited only by Rules and Orders (and not in an Act). The word “person” included a Member, unless the context dictated otherwise or where the provision specifically excluded a Member.

The Concourt also held that Section 11, which allows for the arrest of a Member, constitutes an infringement of Parliamentary free speech and directly infringes the immunities from criminal proceedings, arrest and imprisonment. The Concourt held that Section 11 of PPIPPLA was constitutionally invalid to the extent that it applied to Members of Parliament. The constitutional defect in Section 11 could be cured by reading in the words “other than a Member” after the word “person” in Section 11, to ensure that the section does not apply to Members. Section 11 would continue to apply to non-Members.

The Concourt suggested that Section 11 be amended as follows, as per read in:

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.

Section 7(e), to be read with sections 13 (Conduct constituting contempt of Parliament) and 27 (Offences), provides that a Member is guilty of contempt of Parliament if the Member, inter alia, contravenes Section 7 (which includes 7(e) – creating or taking part in a disturbance). Section 27 provides that a person, including a Member, who contravenes Section 7, commits an offence and is liable to a fine or to imprisonment for a period not exceeding 3 years, or to both a fine and the imprisonment. Hence, the word “person” in Section 7 includes a Member.

Section 7(e) be deleted from Section 7 (meaning that only sections 7(a), (b), (c), (d) and (f) will apply to Members and non-members); to include a new subsection 7(2) incorporating the wording of the current Section 7(e), but rewording it in a manner that it would apply only to non-Members; and to make consequential amendments to Sections 13 and 27 (in other words, correct the cross-referencing).

Section 22 containrf the phrase, “No person is liable in damages”. It should read “No person is liable for damages”. This was the more widely accepted phrase in SA law.

 Discussion

 Minority Judgment Presentation

 Mr R Tseli (ANC) asked if a Speaker could delegate another person to remove a Member. Removal went with automatic suspension of a Member for a particular period.

 Ms Isaac said the Speaker had the power to delegate. For instance, the Parliamentary Protection Services belonged to Parliament, and that was why they were delegated to remove a Member or members. That was Judge Jafta’s interpretation. The judge also reasoned that automatic suspension was absurd when it was applied to a Member. Rules of Parliament allowed for Members to be removed from the House or precincts, and that had to be tested if it was in line with the Constitution.

Dr A Lotriet (DA) said the Committee should determine which approach it should be taking. The majority judgment, in its definition of “person,” was interpreted to include a Member of Parliament, while in the minority judgment, “person” was interpreted to exclude a Member. She suggested the Committee should decide about the judgment it was planning to confine itself to, but she personally supported Jafta’s minority judgment. His interpretation took into consideration the Act, and what it sets out to do, and it clearly defined a person and what a Member is.

Ms N Mazzone (DA) commented it was important to understand the context around why the judgment was read the way it was. The floor of Parliament was sacrosanct, and whoever was armed was not allowed to enter it. In the case of rowdy Members, it was agreed that no armed forces should be invited to the House. However, after seeing the violence that had interrupted the proceedings, everyone had been alarmed. From the footage the Committee had watched, one could also see that some of the armed forces were also shocked. The President had been in the House with his own security personnel, who were not part of the Parliamentary Protection Services. She said the minority judgment talked of detainment, but one could not be detained because one was an MP. She asked the Committee to define “absolute impunity,” because it was a highly complex and uncharted territory. The Committee needed to look at it in a measured way and unpack what “absolute impunity” meant.

Ms Isaac stated Parliament was bound by the majority judgment because it had set the standard.

The Chairperson wanted to know if the powers of the police could be limited in enforcing the law when the lives of Members were threatened.

Ms Isaac explained that Section 4 allowed members of the security services to enter the House and perform policing functions when they were asked by the Speaker. They could enter the precincts when there was danger to property, or when property was being destroyed.

Mr Tseli wanted to find out if a Member could still be allowed to be in the premises to work after he or she continued to cause a disturbance in the House, and had been removed from the precinct.

Ms Isaac said a Member had freedom of speech in the Committees and the Assembly. Rules regarding removal from precincts had not been tested, and that was what the Committee needed to consider, to see if that was constitutional.

 Dr Lotriet remarked that the removal of a Member was not good, because the Member would not be able to continue doing the work he or she had been elected to do, and that infringed on his or her rights, according to Judge Davis.

 Review of PIPPLA

The Chairperson wanted to know if participation in a disturbance by a Member meant that particular Member was right.

Ms Kassan said if one read Section 11 of PIPPLA to the contrary, it was like that.

Mr Tseli wanted clarity on “liable for damages” and “liable in damages.” He also wanted to know if rules and orders superseded the Act, because rules and orders regulated free speech.

Ms Kassan explained that “liable in damages” was widely accepted in foreign countries, while “liable for damages” was the widely accepted phrase in SA. On rules and orders, she said the directive was given by the Constitution to be in legislation. The whole thing came from Section 58 of the Constitution. The Constitution superseded the Act. The court had indicated that Section 47 allowed Parliament to regulate its own policies.

Mr P Maesela (ANC) asked if there was a disruption in the House, and the Speaker ordered the security services to remove the Member, did that mean the Member had to be removed from the precincts or chambers?

Ms Desiree Swartz, Parliamentary Legal Advisor, said a person might be removed by a person designated by the Speaker or Chairperson. She indicated that the court had said removal must be such that the House could not work. The removal was sufficient if it was not going to interfere with the work of the House, even if the person was removed outside the precincts.

Dr Lotriet asked if Section 7 (d) was not going to create a problem if one forfeited one’s benefits.

Ms Swartz said Section 7 (d) had been identified as problematic. The presentation had chosen to focus on the majority judgment. The legal services team was going to take cues from Members on a list of other areas to focus on.

Prof T Msimang (IFP) asked if a Member could still remain within the precincts after he or she had been asked by Speaker to leave the House.

Ms Swartz said Section 2 of the Act went beyond the precincts and included forecourts, courtyards and gardens. Technically, the Speaker has control over the entire precincts, but in most cases, to leave the House is sufficient.

The Chairperson asked Members to think about the matters raised during the discussion. The Parliamentary Legal Advisers should look further into other issues that had not been part of the presentation.

 Adoption of Minutes

 The minutes of 2 September 2016 were adopted, with minor amendments.

 The meeting was adjourned.