Constitution of the Republic of South Africa – Chapter Four
Democratic Alliance v Speaker of the National Assembly and Others (CCTT86/15) 
Presentation - DA vs National Assembly Speaker
Committee Bill process
Terms of Reference
The Committee met to discuss amendments to the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act, 2004 (PPIPPLA). The driving force for change was, firstly, the judgement in the Constitutional Court in favour of the DA, and the repeated disruption of Parliament by a group of Members of Parliament.
The National Assembly Table staff had undertaken a comparative study of international best practices and conventions relating to parliamentary powers and privileges on behalf of the Committee. Parliamentary privilege was defined as the preservation of the exclusive rights of Members to freely attend to the public affairs of the House, without disturbance or interruption and to freely express themselves (free speech) without fear from arrest or civil prosecution. The South African Parliament needed to take its lead from Section 58 which allowed for freedom of speech in the House and the Committees. No one could sue a Member nor institute an action for damages as a result of what a Member said in the House.
A Member noted that it was interesting to hear about other Parliaments but those that had responded to the questionnaire sent out, were all entrenched in the Westminster system. The United Kingdom Parliament talked about Powers and Privileges because it was engaged in a battle for power against the monarch in 1689, at the time when the UK Bill of Rights was written. Therefore, in naming the South African Act, the title should change as the issue regarding the power of a monarch did not pertain to South Africa. It was noted that power was an authority given to the House and not to the individual. Privileges could be bestowed on Members.
One Member noted that the Committee was steering towards disruptions of the House and its work by a group of Members. Even though the Constitution said that Members had freedom of speech in the Assembly and its Committees, subject to its Rules and Orders, those very same Rules and Orders had to comply with the Constitution. So, the Committee could not write into the Rules and Orders anything that would be found to be unconstitutional.
The new Rules had instituted a disciplinary committee and that was the body that had to look at repeated contraventions of the rules by specific Members. It was felt that that structure was insufficiently utilised. The rules had to broadly created an opportunity for orderly debate and to make sure that the House was performing its responsibilities in terms of the Constitution and its legislative mandate as well as its oversight role, etc.
An Advisor from the Legal Section made a presentation on Sections of the Powers, Privileges, and Immunities of Parliaments and Provincial Legislatures Act, 2004 that might require review. There was a concern with Section 7(e) of the Act that prohibited disturbances within the precinct but if read with section 13 and 27, it could be seen as a limitation on Parliamentary free speech.
Members asked whether the Act itself should stipulate penalties for non-adherence to the Act, and what the court had found in the description between free speech and disturbance. The Chairperson noted that freedom of speech was one thing, but the obstruction of the business of a Committee, or the business of Parliament, was not freedom of speech.
The Legal Advisor was asked to re-draft the Act in the light of the discussion. The Committee had an extension until the end of June to finalise the Act. The Committee would reconvene in late January to consider the amendments.
Consideration of Outstanding Minutes
Members read through the Minutes of 14 September 2016.
Mr M Shelembe (NFP) corrected the date on the Minutes.
Ms J Kilian (ANC) suggested a number of grammatical corrections.
The Chairperson asked for someone to propose the adoption of the Minutes. None of the Members present had attended that meeting. Ms Kilian suggested that an in-principle agreement to accept the Minutes be supported and when other Members were in attendance, the Minutes could be adopted.
This was seconded by Dr P Maesela (ANC).
Matters arising. Ms Kilian noted that the Agenda items followed from the Minutes and therefore proposed that the Committee proceed.
Mr E Buthelezi (IFP) seconded Ms Kilian’s proposal.
Comparative study on international best practices and conventions relating to parliamentary powers and privileges
Ms Nombongo Mongo, Committee Coordinator, NA Table Staff, presented the report. A research paper had been prepared by the National Assembly Table staff who had undertaken a comparative study on international best practices and conventions relating to parliamentary powers and privileges. The Committee had, at its meeting in May 2016, requested the comparative study. Ms Mongo highlighted the key points from the research paper.
A questionnaire had been developed in consultation with the Committee Chairperson and comprised five questions. The questionnaire had been sent to 10 Parliaments but only five had responded, namely: New Zealand, Kenya, Canada, United Kingdom and Australia. The five questions included questions about how the Parliaments made provision for parliamentary powers and privileges and any limitations on those powers and privileges, as well as how that was done. The questionnaire also asked about developments in the field of the past 10 years, how the parliament dealt with contempt by Members and whether the Rules and Orders or legislation provided for forceful removal of members from the Chamber for breach of privilege, contempt or disruptions. The questionnaire also asked what mechanisms were in place to deal with disturbance or gross misconduct during house proceedings.
She explained that Parliamentary privilege preserved the exclusive rights of Members to freely attend to the public affairs of the House, without disturbance or interruption and to freely express themselves (free speech) without fear from arrest or civil prosecution.
The first response to questions came from Kenya, which had recently replaced the previous Act of 1952. Ms Mongo noted that the Kenyan Parliament allowed for the forcible removal of Members who refused to withdraw when required to do so by the Speaker or Chairperson of Committee. In 2016, a Member of the Kenyan Parliament had been forcibly removed from the House and suspended for the remainder of that parliamentary session. Following a court case and intervention by the Leader of the Opposition, it was eventually decided to amend the legislation stating that is a member who disrupted the House could be suspended for a period of one day to 90 days and that the suspension should be reviewed by the Committee for Powers and Privileges.
The second response had been from the United Kingdom, which was the model on which all parliaments were based. The United Kingdom had no formal document on which powers and privileges were based. However, Article 9 of the 1689 Bill of Rights provided that the freedom of speech in debates or proceedings in Parliament should not be impeached or questioned in any court or place out of Parliament. The United Kingdom also had limitations on parliamentary powers and privileges. Privilege belonged to the house itself and individual Members enjoyed parliamentary privilege only as far as was necessary to perform their parliamentary duties but that they were subject to the general law in the same way as other citizens. Standing Order 43 empowered the Speaker to order a Member whose conduct is grossly disordered to withdraw and if a Member refused to leave, a motion was immediately moved to suspend the Member. In the case of grave disorder, the Speaker could adjourn the House.
The Canadian Parliament rules have been largely derived from the United Kingdom. There were also provisions to deal with disruptive attempts by Members and the forceful removal of Members from the House.
Following a court case in 2011, the New Zealand Parliament had introduced the Parliamentary Privilege Act 2014 to clarify the nature, scope and extent of privileges, immunities, and powers exercised by the House of Representatives, its Committees and Members. Standing Order 89 dealt with disorderly conduct of a Member in the House and if necessary, and the contumacious Member would be automatically suspended for the rest of the calendar year.
A section of the Australian Constitution stated that the powers, privileges and immunities of the Commonwealth Parliaments were the same as those of the House of Commons of the United Kingdom in 1901. Contempt was defined as conduct that caused improper interference with the free exercise, by a House or Committee, of its authority or functions. Standing Orders also made provision to deal with disorderly conduct by Members. Members could be suspended, even for lengthy periods, but the House did not have the power to expel a Member from membership of the House.
The Chairperson thanked the presenter for the work done.
Ms Daksha Kassan, Legal Advisor, stated that it was interesting to see what other countries were doing, but the South African Parliament needed to take its lead from Section 58 of the Constitution which allowed for freedom of speech in the House and the Committees, but said that freedom of speech could be limited by Rules of Parliament. Also, the Constitution allowed for absolute immunity, which meant that a Member could not be prosecuted in any way whatsoever, for what was said in the House.
The Chairperson stated that the Committee now had the advantage of understanding what was happening in other jurisdictions, but had to adhere to the Constitution of the Republic, which was binding. Nevertheless, the Committee was grateful to be able to learn from others. The Committee had to tackle the issue in the light of its own Constitution.
Ms Kilian noted that it was interesting to hear about other Parliaments but those were all entrenched in the Westminster system. The UK Parliament talked about Powers and Privileges because it was the battle for power against the monarch in 1689, at the time when the Bill of Rights was written. Therefore, in naming the South African Act, the title should change. Even in New Zealand, the word “powers” had been removed and it had been named the Privileges Act. Section 58 of the South African Constitution referred to privileges but not powers. Powers were not vested in the Members but in the institution. That was created through the Constitution. The comparison had been an interesting exercise to understand where the South African Powers and Privileges Act had come from but clearly it was a revised Act and had simply followed on from the previous Act. It was time to look at the Act and also the primary role of the National Assembly to determine its own rules inside the House in terms of Section 57 and within those boundaries a careful balance had to be maintained as per Section 58. One of the issues that the Committee had to deal with was the fact that the provincial Legislatures had not been covered by the Parliamentary privilege and freedom of speech legislation. The gaps had to be dealt with and, of course, the Committee should also pay attention to what the Court had instructed Parliament to deal with.
Ms N Mokoto (ANC) agreed with her colleague about the powers and privileges but noted that there was a need to deal with powers as it was an authority given to the House and not to the individual. She needed clarity from the Legal Advisor as to how Parliament could achieve a point where Members did not abuse the privileges. Authority was given to the House, and not to the individual. When they spoke of absolute powers, she had a problem because even the Constitution did not allow absolute rights to anyone.
The Chairperson stated that there were many individuals from many political parties and if each Member had absolute powers, it could result in anarchy, so that had to be addressed. He asked the Legal Advisor for a response.
Ms Kassan noted that the Constitution did not provide absolute powers or privileges. Section 58(i)(b) stated that Members had freedom of speech in the National Assembly and the Committees according to certain Rules and Orders. Section 57 of the Constitution could limit Members’ privileges. When she had spoken about absolute rights, she had referred to the right granted in Section 58(1)(b) which was an absolute right as no one could be sued for what was said in the House, nor could a Member be criminally charged for what was said in the House. That was an absolute power. There was freedom of speech, but it could be limited. However, no one could sue a Member, nor institute an action, for damages as a result of what someone said in the House.
Dr P Maesela (ANC) stated that one person’s power stopped where another person’s power started. A Member could have unfettered privilege to say what he/she wanted in the House. The power rested in the Constitution, but the privilege was given to the Member, by the institution, that a Member could not be sued for anything that the Member said. That meant that Members could abuse others and called it privilege. The Committee had to consider what had occurred in the House where some members delighted in wilful unlawfulness. Privileges could be limited if a Member took advantage of the situation. The privilege was conferred; it was not inherent. The power resided in the institution and the Member could not defy the institution and say that it was his own power given by the Constitution. The privilege which was conferred on one could be withdrawn, so the Committee needed to look at how privileges could be withdrawn. The Committee had to navigate between the two without making each one redundant.
In seeking clarity, the Chairperson stated that as he understood it, the only thing that was absolute, was freedom from prosecution. Otherwise, the exercise of the powers and privileges was subject to a limitation. He asked the Legal Advisor to address the situation.
Ms Kassan stated that the Chairperson’s view was absolutely correct and that the privilege that one had was freedom of speech in the House and the Committees, which, according to the Constitution, could be limited in terms of Rules and Orders. She agreed with the Member of the Committee who had said that perhaps the Committee needed to look at the name of the Act. It was not so much about Powers of Members, but about immunities and privileges. Perhaps they could look into that. Not even the Rules or Orders could allow for a Member to be criminally charged for what he or she said in the House.
Ms Mokoto said that the Committee was dealing with an old document that had its own history. She believed that it should be dealt with according to current times. The intention had been to ensure that there was no repression. At the moment, there were many laws that protected the right of freedom of expression, supported by many other institutions that were in existence. To what extent could the Committee tamper with that? If one went through the Constitution, nowhere did it state that that one lost one’s status in terms of the rights of the Constitution if one became a Member of Parliament. A Member did not lose his or her status and had to comply with the law on the point of safeguarding freedom of expression. A Member could say something that was totally destructive in the House and that was illegal. Could one still regard that as the powers that were absolute? In her opinion, even as Members, they had to respect the law and be custodians of the law. So, she had a problem with that part, i.e. that part that provided absolute protection from prosecution.
The Chairperson viewed the debate as very interesting. Members of Parliament took an oath to uphold the Constitution, which meant that everything that they did should not be in conflict with the Constitution. Did the absolute right from prosecution mean that a Member could violate the Constitution which that Member was forced to uphold?
Dr Maesela stated that, as a starting point, it was not possible to “absolutise” anything. Absoluteness came from the divine right of kings, in the mediaeval times, who had absolute power. It was the Constitution that put absoluteness in everything. At the judicial level there was a modicum of arbitration that conferred stability and predictability, but it was not absolute. There were the channels through which powers were exercised and abrogated, but they had to be defended in time. If they were not defended, the power would be lost. People, being people, would always challenge the powers, all the time in order to up the bar. The word of mouth could be very powerful and destructive. If the Constitution said that one had to respect other people’s privileges or rights, and one used one’s word of mouth to breach that privilege in a place where the whole world was listening, or one tried to get away with it because one thought that one had absolute power and protection and could not be prosecuted as long as the words were said in the Chamber, one could start a revolution out there. What happened to that? It would be too late to say that you could be charged for being seditious. There could be nothing seditious if one had absolute right in the Chamber. The Committee Members were not legal eagles, but Members needed to understand so that when they left that Chamber, they knew what had been said there.
Ms Kilian noted that the Members were focusing on an element, i.e. disruption of the House, which the Constitution Court had found to be unconstitutional. The Committee was steering towards disruptions of the House and work conducted by Members. Those who had revised the Rules had tried very hard to establish a balance, remembering that the Constitution was the ultimate law. So, even if the Constitution said that Members had freedom of speech in the Assembly and its Committees, subject to its Rules and Orders, those very same Rules and Orders had to comply with the Constitution. So, the Committee could not write into the Rules and Orders anything that would be found to be unconstitutional. There had, therefore, been a very careful balance so that vibrant debate was allowed for, but the Rules specifically brought in Rule 82 where it stipulated that a reference to a Member had to be in respectful terms because of the founding provisions of the Constitution that people should respect each other. Members might differ but had to do so in a decent manner and not personalise matters. They had to debate issues on their merits and demerits. Because South Africa was still a young democracy and had come from a terrible history, it was necessary to protect freedom with everything that was available. However, freedom should not be abused. That was why the rule had been brought in about unparliamentary and unacceptable language and gestures in Rule 84.
Ms Kilian stated that part of the problem was that Members were not protecting the House through its Rules. Members were not raising point of orders based on the Rules of the House. If Members did that, they would actually empower the presiding officers to deal with matters and to say, “Honourable Member, you are now defying Rule x, y, z. Will you please refrain from doing that and will you apologise to the House?” Ultimately, all Members had to protect the House because it was the House of democratically elected representatives. If the Committee said freedom of speech was not unlimited, it would be right in as far as the Rules limited Members and the Rules could not be unconstitutional. Protection in Parliament was only from legal proceedings. A matter could be debated in the House, but the Member could not be criminally charged for what that Member had said or presented to Parliament. The Constitution did not give Members absolute protection. The parliamentary Rules had to be able to stand the test of constitutionality.
Mr Buthelezi found it interesting. He wanted clarity from the Legal Advisor in respect of the balance. For example, if one could not use unparliamentary ways, how then was it dealt with if something was said that he considered unparliamentary and offensive, but others did not consider unparliamentary or offensive. How did one balance that kind of situation?
Ms Kassan explained that absolute protection from criminal prosecution was afforded a Member, but that was not to say that the Rules and Orders could not subject a person, who had created a disturbance, to disciplinary action or other action. The protection was only against criminal proceedings, arrest and imprisonment for damages. As far as the other issue of balancing what was unparliamentary, she was not au fait with the Rules and handed over to the experts, the Table staff, who dealt with the Rules every day.
Mr Victor Ngaleka, National Assembly Table Procedural Advisor, referred to the issue when the Minister in the Presidency, Minister Shabangu, responded in a particular way. The staff had to advise, but they did not have the English equivalent for the isiZulu term that she had used as the staff members there were not Zulu-speaking. They went to the Language Section to get a translation. A problem would arise if they got it wrong. He agreed that Members had absolute protection from prosecution, but the Rules provided the necessary checks and balances to ensure that people were free to express themselves but without casting aspersions, unless the Member introduced a substantive motion. Those were the types of limitations to ensure that people did not go overboard. However, the Rules could not be so detailed as to prevent it. For him, the important thing was that people were protected from criminal prosecutions and civil action. Other issues could be dealt with in terms of the Rules, provided that the Rules themselves adhered to the Constitution. There were, of course, also other laws, but in the Act, they did not need to deal with all of those.
Ms Kassan added that if the Committee looked at what Section 57, which gave the National Assembly the power to make its own Rules, it said that Rules and Orders had to give due regard to representative and participatory democracy, accountability, transparency and public involvement. So, the Rules had, obviously, to take those things into account to create that balance about what it entailed.
The Chairperson pointed out that there were checks and balances. From the perspective of the Committee, Members had to understand that there was protection from prosecution and civil action. That should be the bottom line and when the Committee talked about absoluteness, it should be in relation to those issues. It was clear that the podium could not be used to call for rebellion, the overthrow of government or the assassination of people.
Mr Shelembe pointed out that in English, one could call a person a dog, and that person could say that he was not an animal. In Zulu, to call someone a dog was saying much more than the person was an animal. It meant that the person was the lowest of the low; it was very, very abusive. It was very difficult to get through to people because calling it abusive language was not correct. It was much deeper than calling a person a liar or dunderhead. In the new Rules that the Committee devised, there had to be a deterrent. There had to be something better than being told not to use abusive language while that person continued to use the term. It was about checks and balances. There had to be a sanction to deal with someone who went overboard and kept on going overboard. Just saying, “I withdraw,” did not mean anything. There had to be a way of stopping that type of thing.
Ms Kilian reminded that the Committee that there was already an extensive list of earlier rulings by Speakers of the House which was enforced, and which stated that Members could not liken any Member to any animal. That was a general rule and was applied. The new Rules had instituted a disciplinary committee and that was the body that had to look at repeated contraventions of the rules by specific Members. She did not believe that that structure was sufficiently utilised. Members had to understand that there was no way one could make a rule for every eventuality. The rules had to broadly create an opportunity for orderly debate and to make sure that the House was performing its responsibilities in terms of the Constitution and its legislative mandate, as well as its oversight role, et cetera. Within that, it was the presiding officers who had to interpret the Rules, but Members had to indicate that a particular Member had repeatedly done x, y, z and that Member had to be referred to the disciplinary committee, or the Member could be referred to the Rules Committee. All of the Members, jointly, had to accept responsibility for the decorum of the House. It was not just the ruling party’s position. There was a large audience, including the parliamentary channel, but in the end the House should not be so disruptive that the House could not perform its responsibilities in terms of the Constitution. Members should create that balance.
The Chairperson referred to what could happen if Members broke the Rules. One could be a simple breach of the Rules and the person could be asked to leave the House and if he did not, he could be removed from the House. More serious misconduct was contempt of Parliament but that could be could be dealt with in terms of the Rules Committee, and Members could be instructed to apologise, fined, suspended or have their salaries docked. Checks and balances were in place in respect of things that were enforceable, but some things could not be seen, especially emanating from the multiple languages and the use of phrases from various languages. However, the presiding officers would make rulings and the Table staff would advise as to how some of the matter should be dealt with. The Committee should not try and suppress action that had not taken place, but should broadly agree that criminal and civil action was not permitted.
Presentation on a Review of the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act, 2004 (PPIPPLA)
Ms Kassan made a presentation on sections of the Act that might require review. She pointed out that the presentation was limited to the Act and was not looking at the Rules of Parliament. She noted that her previous presentation to the Committee had focused on those sections of the Act that were directly related to the majority judgement in the DA versus the Speaker Constitutional Court judgement. It was a very limited interpretation and after that meeting, the Chairperson had asked Legal Services to review the entire Act and to look at sections that might possibly require review and amendment. The presentation, therefore, contained sections that the Legal Services had identified but the Committee would identify other sections. The process followed was to peruse all relevant judgements, challenges and all cases referred to Powers and Immunities of Parliament and Provincial Legislature (PPIPPLA), as well as those that dealt with Parliamentary free speech. They had looked at a judgement that determined how far the powers and rules of Parliament could go, and they had obviously looked at the DA judgement. Legal Services had also tried to get input from relevant officials working in Parliament, especially those that worked with the powers and privileges of Parliament, and Legal Advisors from legislatures, as legislatures were also involved in the Act. However, very little input was received. They had also tried to get input from political parties via a written request made by the Chairperson but, unfortunately, very little response was received.
The presentation highlighted sections that could possibly raise challenges, that might be vague or ambiguous, or sections that merely required correction. It was presented for consideration by the Committee and for possible amendment. She recapped the finding of the DA judgement in which Section 11 of the Act was found to be constitutionally invalid to the extent that it applied to Members.
Section 7(e) prohibited disturbances within the precinct but if read with Sections 13 and 27, it could be seen as a limitation on, or regulating, Parliamentary free speech or where the disturbance occurred in the Assembly, the Council or a Committee. Section 7(f)(i) was vague in that it referred to a person who could not refuse to comply with an instruction by an authorised staff member regarding the presence of persons at a particular meeting in the precinct. It was not clear what was meant in that section.
Ms Mokoro asked the presenter to explain Section 7.
Ms Kassan explained that in Section 7, a disturbance was limited to the precinct of Parliament, which was broader than just the House and the Committee rooms. She suggested that a new section be inserted stating that is no person, other than a Member, might create or take part in any disturbance within the precinct while the house or a Committee was meeting. The alternative was to amend the definition of “disturbance”.
Mr Buthelezi cited an example where a trade union had walked into a Committee during a meeting and had created a disturbance. He asked if a Committee Chairperson could expel people.
Ms Kassan confirmed that would be covered by Section 7(2).
The Chairperson asked whether it was not restricting protests in the precincts of the House?
Ms Kassan stated that it could be an offence for not allowing the proceedings of Parliament to continue.
Mr Shelembe was trying to understand whether powers included Portfolio Committees. What if a Member was suspended in a Committee and not the House? He did not think that the Presiding Officer had the power to suspend, if the meeting was not being chaired by the House Chairperson.
Mr Ngaleka stated that he believed that a Committee Chairperson could suspend a Member from the Committee meeting but not from the House.
Ms Kilian explained that Chairpersons of Committees had specific functions, but they did not have disciplinary functions. If a Member was repeatedly disruptive, that Member could be reported, and action could be taken but a Chairperson could not expel a Member from the proceedings of any meeting. Silencing a Member was a significant step and should not ordinarily be done. A Chairperson’s responsibilities were limited in Rule 1(5)(a).
The Chairperson wanted to assume that Committees were organs of Parliament and that they exercised their powers in furtherance of the work of Parliament. If there were malicious persons who just wanted to disrupt and bring to a halt the work of Parliament, and there were no powers to exclude such persons from the meetings, what did it mean? Did it mean that they could disrupt proceedings?
Mr Ngaleka stated that the Rules of the House also applied to any plenary sessions. Chairpersons could order Members to leave the House if they did not abide by the rules. They could invoke Rule 33.
The Chairperson noted that Rule 33 R covered plenary sessions, but it did not cover Portfolio Committee meetings.
Dr Maesela understood, but it was a concern.
Mr Nazeem Ismail, Parliamentary Undersecretary, stated that Rule 188(b) dealt with the removal of a person and said that when instructed by the Chairperson of a Committee Sub-Committee, the Serjeant-at-arms had to remove or arrange for the removal of any person who disrupted the proceedings of the Committee or Sub-Committee or caused disruption.
Mr Shelembe stated that he was covered.
Continuation of the presentation
Section 12(5)(f) listed a number of penalties which could be imposed on a Member when the house found a Member guilty of contempt. However, there was not clarity as to whether only one or more of the penalties could be imposed. It was suggested that the word “or” the added at the end of the penultimate paragraph to limit the imposition of penalties so that only one penalty could be imposed. Section 22 contained the phrase “liable in damages” and should be changed to “liable for damages”. Minor amendments for the sake of clarity were required in Section 23(2)(a), Section 25(2), Section 28(2)(e), 29(2)(a) and Section 30(a). The Short title referred to 2003 but the ACT was only gazetted in 2004 and that had to be corrected.
The Legal Advisor referred to comments received. A comment had been received querying the omission of Section 3 in relation to provincial legislatures. It was recommended that it be included via a reference to Section 3 in section 28. Unless there was a specific reason for the omission, the Legal Advisor concurred with the recommendation. One comment received stated that small legislatures could not establish a Standing Committee as contemplated in Section 12 and so, to address that point, it was suggested that Section 28 stated that “a provincial legislature may choose to either appoint a Standing Committee or establish an Ad Hoc Committee.”
The Chairperson asked for any comments or input from the Committee.
Ms Mokoto asked about Section 12(11) which stipulated that a member who had been suspended without remuneration was not entitled to any salary or allowances for the period of suspension. She was not sure whether the Committee was going to stipulate the type of penalties for offences. She had thought that the Act would not stipulate the penalties.
Ms Kilian thanked the Legal Services for the presentation. She wanted to understand what difference the court had found in the description of free speech and disturbance. She was concerned that the Committee was making them to mean the same thing. Protecting freedom of speech was clearly constitutional but how did the Committee extend freedom of speech by extending the right to create a disturbance and yet still regard that as freedom of speech. Could Legal Services explain that to her? She noted that the Committee had received the presentation and had noted the suggestions. She, therefore, suggested that the Committee ask Legal Services to proceed with the drafting and that they check additional matters raised in the meeting so that they could clearly differentiate between sources of change. She would be concerned if they changed Section 1 with reference to disturbance. She thought that a disturbance was a disturbance whether one was a Member or not a Member. Members did not have accepted rights beyond their freedom of speech. That was her personal view, but could the Committee get a general feeling from Legal Services about how long it would take and when the Committee would have a first draft.
Freedom of speech was one thing but the obstruction of the business of a Committee or the business of Parliament was not freedom of speech. The Chairperson asked the Legal Advisor to respond to that and then the Committee could decide on the way forward.
Ms Kassan responded to the question about the list of penalties and stated that one of the penalties was that a Member could be suspended with or without remuneration - Section 12(5)(g). On the issue of freedom of speech versus disturbance, she advised that the court had referred, in particular, to Section 11 which allowed for the arrest of any person causing a disturbance in the precincts. It meant that the Chairperson could ask for the arrest of a member, or non-member, who had caused a disturbance as defined in the Act anywhere in the precincts and not just in the house. When looking at freedom of speech, the court did say that that privilege could never go so far as to give a license to disrupt proceedings of Parliament. The court judgement went on to look at what a disturbance entailed and determined that the definition was overly broad and could include any act that could interfere with the proceedings of Parliament. The court said that surely not any and every act could be classified as a disturbance and warrant the removal of a person. A disturbance had to be of such a nature that it incapacitated the House, or prevented the House from carrying on with its proceedings. The Legal Advisor stated that they would definitely look into the definitions again.
With regard to when the first draft was due, the Legal Advisor was at the liberty of the Chairperson as she would be back in the office early in 2018.
Dr Maesela asked whether filibustering fell under the definition of a disturbance.
Ms Kassan responded that the court had said that a disturbance had to disrupt the proceedings of Parliament. If the proceedings could not go ahead because there was no decorum in the House or people could not hear one another; that would amount to a disturbance. Obviously, one would have to define it on a case-by-case analysis. More than that, the court did not actually say what a disturbance entailed
The Chairperson asked that the Legal Advisor go back and re-draft the Act in the light of the discussion. The Committee had an extension until the end of June to finalise the Act. He requested that the Committee meet between 23 and 26 January 2018, so the draft would have to be ready before that. At that meeting the Committee would consider the Amendments.
The Chairperson thanked everyone for the good work done. He understood that there had been challenges in terms of attendance, but the Committee would meet early in the New Year so that it could meet the deadline of June 2018.
Meeting was adjourned.
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