Report on the powers and privileges of Parliament

Meeting report

 

JOINT SUBCOMMITTEE ON POWERS AND PRIVILEGES
6 September 1999
REPORT ON THE POWERS AND PRIVILEGES OF PARLIAMENT

Documents handed out:
Powers and Privileges of Parliament: Second Interim Report
The Speaker of the National Assembly v Patricia De Lille

 

SUMMARY
Members were introduced to the Report on the Powers and Privileges of Parliament and the need for existing legislation to be changed or amended. The report was not discussed in great detail but members were rather requested to go back to parties and look at the report in more detail.

 

MINUTES
The Speaker said that due to the constitutional changes and the need as well as the desire of Parliament to reconsider its procedures led to the commissioning of a study on the powers and privileges of Parliament. This study was commissioned last year and a report on the Powers and Privileges of Parliament was compiled. The objectives of the study were firstly, to obtain clarity and certainty on the powers and privileges enjoyed by Members of Parliament and secondly, to establish whether The Powers and Privileges of Parliament Act of 1963 (1963 Act) has to be amended or whether new legislation is required.

The Speaker raised several open questions relating to the powers and privileges of Parliament. Amongst these questions were the following:

• Is there anything that Parliament needs to run its affairs?
• What does Parliament need to serve its function?
• Can parliamentarians override the rights of citizens?

The Speaker expressed the view that parliament cannot create a set up to protect parliament from the public.

Mr D Schutte (NNP) expressed the opinion that there is no doubt that present legislation (1963 Act) is outdated and fundamental changes are necessary. The concern is, however, that the procedural aspects of changing present legislation must be approached with caution. Mr Schutte further proposed that the speaker identify some aspects for consideration.

Several members said that they would like to read the report first before any valuable input could be expected from them.

Mr L Landers (ANC) said the report is well prepared and echoed the view that existing legislation is outdated. He said that committee needs to identify, from the report, the important ideas and move forward from there.

The Speaker admitted that at this stage it is difficult to determine how proceedings should follow and proposed that members go back to their respective parties and discuss the report. Specialist teams within parties should look at the report and it seems inevitable that members would have to be brought aboard as discussions around the issue proceed. As a starting point, the speaker said that in looking at the issue one needs to look at the founding principles of the constitution and the functioning of Parliament as set out in the constitution.

A members asked the Speaker to give specific examples of why something is wrong with the present tradition of powers and privileges. The Speaker said that if one looks at the two judgments in the "Patricia De Lille matter", there are conflicts. In the Cape High court the judge said the speaker has the power to suspend members and the Supreme Court confirmed this. The Supreme Court however also said that should a member be suspended the right of citizens to be represented in Parliament will be infringed upon. Therefor in this instance it would have been preferable and convenient to refer to the rules and be certain as to what the actual position is. Furthermore not only will new legislation create certainty, but the exercise is also going to help the public understand the powers and privileges enjoyed by parliamentarians.

A member raised the question of whether there is a time frame in which to complete the task. The Speaker suggested that parties look at the report and setting time frames could be considered at the next meeting. It is also important that this is not dealt with in a great hurry. The committee will also be in a better position once members are familiar with the report and the surrounding issues.

Since there were no further matters to be discussed the meeting was adjourned.

 

Appendix 1:

 

Powers And Privileges Of Parliament: Second Interim Report

January 1999

Prepared by C Murray
assisted by F Soltau

TABLE OF CONTENTS

 

Brief overview of the Report and the political questions that it raises

Chapter 1: Introduction

Chapter 2: Basic Concepts and Terms

Chapter 3: General Implications of New Constitution

3.1 The Constitution is supreme

3.2 Certain traditional privileges are constitutionalised .

3.3 The Constitution expressly limits or amends certain privileges

3.4 Certain traditional privileges implicitly excluded

3.5 The Constitution requires other privileges to be 'prescribed by national legislation'

3.6 The Constitution affects processes and decision-making power of Parliament

3.7 Conclusion

Chapter 4: What rights does Parliament need in a democratic process?

4.1 Powers and privileges

4.2 Codifying privilege

Chapter 5: Contempt of Parliament

5.1 What acts or omissions constitute contempt of Parliament? The present position

5.2 Reforming the law of contempt of Parliament

5.3 Creating contempts in the rules

Chapter 6: Parliament's power to punish contempt

6.1 Courts and Parliament: Who should punish contempt?

6.2 Fair procedures

6.3 Procedures for raising contempts

6.4. Punishment

6.5 Penal jurisdiction of provincial legislatures

Chapter 7: Miscellaneous issues

Annexure A: List of recommendations of the Australian Joint

Select Committee on Parliamentary Privilege

concerning clarification of contempt of Parliament

Annexure B: Sri Lanka: Parliament (Powers and Privileges Act)

Annexure C: Powers and Privileges of Parliament Act

Annexure D: Bibliography

 

BRIEF OVERVIEW OF THE REPORT AND THE POLITICAL QUESTIONS THAT IT RAISES

PARLIAMENTARY PRIVILEGE IN A NUTSHELL

 

The law relating to the powers and privileges of Parliament has developed over centuries and has become extremely complex. However, it is based on a number of clear principles.

1. Separation of powers

The doctrine of separation of powers protects government by requiring that power is not all concentrated in one place. It gives Parliament the power to regulate its own affairs without outside interference. This power (or privilege) was initially claimed by the Westminster Parliament when it was threatened by a jealous and domineering executive. Traditionally, it has also meant that courts should not have jurisdiction over parliamentary matters but in many jurisdictions the exclusion of courts is not as absolute now as it was in the past.

2. Open democracy

Democracy requires open and critical debate of matters of public interest. Often such debate cannot occur freely. For instance, political violence or threats may curtail it. In addition, law protecting individuals, their privacy and their reputations, may sometimes limit the debate. Thus, a newspaper may suspect that a certain person is involved in illegal dealings but, without strong evidence, could not report on the matter.

The usual restraints on freedom of speech do not apply in Parliament. This is known as the privilege of freedom of speech in Parliament. It ensures that parliamentary debate can be completely open and that members will not be intimidated by threats of legal action for defamation etc. Other parliamentary privileges are the exemption of members from civil proceedings while Parliament is sitting and the protection of the publication of parliamentary proceedings. In addition, Parliament has the right to control its internal proceedings.

Parliament's powers and privileges are intended specifically to protect it and to ensure that it can fulfil its role properly. Because parliamentary privileges grant immunity to Parliament and parliamentarians from the normal operation of the law, it is important that they should be no wider than is absolutely necessary.

All institutions in South Africa are subject to the Constitution. This has implications for the powers and privileges of Parliament just as it does for the Executive and Judiciary and other state institutions. In claiming privileges, Parliament will have to respect the Constitution.

 

Parliamentary privilege in South Africa

 

The powers and privileges of the houses of Parliament and the provincial legislatures are dealt with in the Constitution and in the 1963 Powers and Privileges of Parliament Act.

 

The Constitution protects freedom of speech for members of the National Assembly (section 58), the NCOP (section 71) and every provincial legislature (section 117). It also stipulates that members cannot be liable in criminal or private law for anything that they have said in a house or a committee of the house. This means, for instance, that a member cannot be sued for making defamatory statements about either another member or someone else in a speech in the House. It does not mean that members of Parliament or members of provincial legislatures are protected for speeches they make that are not part of parliamentary proceedings. Speeches in constituencies are not protected, nor are discussions in Parliament that do not relate to parliamentary proceedings.

The Constitution also gives the National Assembly (section 57), the NCOP (section 70) and provincial legislatures (section 116) the power to 'determine and control [their] internal arrangements, proceedings and procedures'. This means that each legislature can determine how its committees operate, what its rules of procedure should be and so on. Of course, in determining internal proceedings Parliament and provincial legislatures must comply with the provisions of the Constitution. For instance, generally speaking, committee meetings must be open to the public.

 

The Powers and Privileges of Parliament Act of 1963 sets out the powers and privileges of Parliament in greater detail. Although the Act is drafted to apply to Parliament as constituted under the 1983 Constitution, its protection of powers and privileges remains important and applies to our new Parliament. It supplements the constitutional provisions in important ways and provides procedures for Parliament to protect its powers and privileges.

The most important privileges protected in the Act:

• freedom of speech and proceedings in Parliament

Like the Constitution, the Act protects the privilege of freedom of speech. However, the protection in the Act seems broader than that in the Constitution because it prohibits courts from investigating parliamentary speech under all circumstances. (The Constitution seems only to protect members from being taken to court for speech in Parliament.)

• freedom from arrest or molestation

The Act exempts members from participating in civil court cases while Parliament is sitting unless the case is heard in Cape Town.

It also stipulates that members may not be required to give evidence in another house without the permission of their presiding officer.

• protection of parliamentary publications

publications under the authority of Parliament are given the same protection as speech in Parliament

 

Contempt of Parliament

The Powers and Privileges of Parliament Act sets out acts that constitute contempt of Parliament. Broadly speaking, it is contempt of Parliament to act in a way that impedes the functioning of Parliament. Contempts specified in the Act include disobeying the Rules and Orders, failing to appear before a committee on request, bribing (or attempting to bribe) a member of the house, obstructing any member on his or her way to Parliament and making defamatory statements about members that touch on their conduct as members. The Act also allows Parliament to create other contempts in its Rules.

Breaching a parliamentary privilege is contempt of Parliament. For instance, a person who sues a member of Parliament for a defamatory statement made in parliamentary proceedings is guilty of contempt.

 

Punishing breach of privilege and contempt

The Powers and Privileges of Parliament Act, following the tradition of Westminster parliaments, gives Parliament the power to try and punish contempt of Parliament. It can fine and, if the fine is not paid, imprison, offenders. As far as we are aware, these powers have not been used in South Africa but Parliament has reprimanded offenders and required them come to the bar of the House to apologise formally .

 

KEY ISSUES

 

Although the Powers and Privileges of Parliament Act was obviously very carefully drafted, the Report recommends entirely new legislation. This is because -

• The new Constitution raises substantial issues about the extent and enforcement of parliamentary powers and privileges that should be considered in legislation
• The Constitution establishes new political institutions, the 1963 Act is formulated to apply to the political institutions of the 1983 Constitution
• The 1963 Act incorporates in our law the practice of the House of Commons in 1909 - this makes the law obscure and dated
• The 1963 Act has been amended many times and has become repetitious and disjointed. It is difficult to follow

The Report generally just refers to Parliament. However, the discussion is as relevant to provincial legislatures as the national Parliament. To refer to all legislatures throughout would have been unduly cumbersome.

 

Decisions are required on the following issues. Other, more technical matters are raised in the Report.

1. Should Parliament retain its power to punish contempt?

 

This is the first - and main - question that must be answered in considering new legislation. Parliament's power to punish contempt is controversial partly because it involves Parliament judging its own case. In addition, it has been argued that the politically-charged nature of any parliamentary proceedings makes fair proceedings impossible.

A number of options arise:

• retain the status quo in terms of which Parliament can punish contempt (or hand matters over to the Attorney-General to be dealt with in the ordinary courts)
• abolish Parliament's right to punish contempt
• limit Parliament's right to abolish contempt (either by abolishing Parliament's right to punish offences by outsiders but maintaining its right in relation to members and officers of Parliament or by limiting the specific offences Parliament can punish giving the courts exclusive jurisdiction over more serious contempts)

There are two reasons for limiting Parliament's present powers. First, the power to punish for contempt has a criminal element and, at least in the case of offenders who are not members or officials of Parliament and when a fine or imprisonment is a possible penalty, it may be unconstitutional to use this power without a proper trial in an ordinary court. Secondly, although the notion of contempt of Parliament is intended to protect Parliament, Parliament's status is seldom enhanced by in-house proceedings of this sort.

These issues are discussed in Chapter 6.

 

2. What are appropriate sanctions for contempt of Parliament?

Sanctions that have been used in Commonwealth parliaments for contempt include fines, imprisonment, reprimands, and, for members, suspension and expulsion.

If the power to punish contempt of Parliament, or any part of it, is given to the courts, the question of appropriate sanctions is not particularly difficult. But, what sanctions Parliament itself can impose needs careful consideration.

At present, as mentioned above, Parliament has the potential power both to fine and imprison. As far as we know, these sanctions have not been used. In relation to members the common law appears to have given Parliament the power to expel or suspend members. We do not believe that the power to expel has survived the 1996 Constitution. However, the power to suspend has been used.

The sanction that has most commonly been used is that of reprimand. Editors and journalists have been called to the bar to apologise to the house.

These issues are discussed at 6.3.

3. Procedures for dealing with contempt

Parliament will need to implement fair procedures whether it retains a wide power to punish contempt or limits its power to deal with contempt to the punishment of members and officers of Parliament for breaches of the Rules.

In setting up procedures consideration needs to be given to establishing a standing committee, the composition of the committee, the rights of the person accused of contempt (opportunity to state his or her case, representation, right to call witnesses etc), and the role of the House in confirming a committee recommendation.

These issues are discussed at 6.2.

4. Privilege

The Constitution protects the privilege of freedom of speech in Parliament. The Report suggests that further privileges should be included in legislation and that the ambit of freedom of speech should be extended and clarified.

See Chapter 4 and the recommendations made there.

5. Contempt

Breach of privilege is contempt of Parliament. In addition, other actions which impede Parliament's ability to function constitute contempt. Certain decisions need to be made about contempt:

• its definition and what actions constitute contempt
• whether Parliament should have the power to create new contempts
• whether 'defamatory contempt', a common-law contempt committed when someone defames Parliament, should be retained in its present form, revised or abolished

These issues are dealt with in chapter 5.

6. Other matters

A number of ancillary matters also arise

• terminology - do we wish to retain the term 'privilege'?
• treatment of witnesses in hearings before parliamentary committees.

 

CHAPTER 1

INTRODUCTION

 

The Constitution contains a number of provisions that have direct relevance to the powers and privileges of Parliament. It constitutionalizes Parliament's power to control its own proceedings but at the same time limits it in a number of ways (the provision requiring Parliament to conduct proceedings in public in all but exceptional circumstances is a restriction of the traditional right of Parliament to exclude the public). The privilege of freedom of speech in Parliament is enshrined in the Constitution but other privileges are left to be prescribed in national legislation.

These constitutional changes and Parliament's desire to reconsider its procedures led to the commissioning of research on the powers and privileges of Parliament. The objectives of the research are to -

(i) obtain clarity on the powers and privileges to which Members of Parliament are entitled; and

(ii) establish whether the 1963 Act has to be amended or whether new legislation is required.

Specific areas requiring attention in the research were identified in the terms of reference. They are -

• Parliamentary privilege in general
• Freedom of speech
• Privilege of freedom from arrest and molestation
• Penal jurisdiction of Parliament
• The powers of Presiding Officers
• Parliamentary privilege and the courts
• Other privileges

In addition, the researchers have been asked to take up any other issues raised during the research and relevant to the subject. As a result, the Report ranges fairly widely. As the first attempt at a systematic study of the powers and privileges of Parliament in ten years - and the first under the new Constitution - it seems appropriate to incorporate as much as possible. The short history of our new legislatures means that many problems are unresolved and the Report hopes not only to provide guidance on drafting new legislation but also to clarify some issues.

In October we met with certain members of the parliamentary administrative staff and discussed a preliminary paper outlining issues that seemed relevant to the research. Following that meeting we drafted the first interim report. That report was discussed with some members of the Rules Committee in early December.

This 'Second Interim Report' builds on the December meeting by incorporating a number of issues raised at that meeting. It goes further than the first report in certain areas, attempting to clarify the present legal situation and provide a sense of debates around parliamentary powers and privileges in other countries. We included as much material from new democracies as possible. Unfortunately, this is very difficult to procure. Nevertheless, the Sri Lankan Privileges Act provides an interesting model and widens the options we can consider. This Report relies fairly heavily on Australian and New Zealand material. Both these countries have innovative legislatures, often breaking away from the more conservative 'House of Commons model'.

We think that the 1963 Act should not be amended but instead replaced and this Report is based on this approach. As the 1989 Report on Parliamentary Privilege emphasised, the Act was obviously drafted with a great deal of care (Report para 8.1). In many ways it is remarkably up to date with international developments in the field. Nevertheless, it is inappropriate in a number of ways. First, the result of numerous amendments over the past 30 years is that it is very difficult to read. Both the language and the organisation of the Act are complicated. Commenting in 1955 on the 1963 Act's predecessor, the 1911 Powers and Privileges of Parliament Act, Ralph Kilpin said that its treatment of the powers and privileges of Parliament was to be found 'in somewhat scattered provisions'. The 1963 Act followed this trend. Parliamentary law and particularly issues relating to contempt and privilege are notoriously complicated. It is important that legislation governing the area should be as clear as possible.

But there are also substantial legal and constitutional reasons for replacing the Act. This preliminary Report is written on the assumption that Parliament wishes to incorporate the values of the Constitution in its mode of operating. The Constitution raises both technical and substantive issues in relation to the way in which we should deal with parliamentary powers. From a technical point of view, the constitutional requirement that any privileges in addition to freedom of speech in Parliament should be prescribed by national legislation may require a codification of parliamentary privilege. In addition, certain provisions of the Act have been made redundant by the Constitution. More substantially, complex questions constitutional are raised about the relationship between parliamentary proceedings and the Bill of Rights and Parliament and the courts. It is essential for these matters to be resolved in a way that is sensitive both to Parliament's role in a democracy and to the values enshrined in the Constitution. It seems appropriate to draft a new Act that responds to these needs.

Not all issues relating to parliamentary powers and privilege should be dealt with in legislation. Some are more appropriately included in Rules. At this stage the Report does not attempt to distinguish these issues because determining where matters should be dealt with will depend on the type of powers Parliament wishes to assert.

 

Chapter 2

BASIC CONCEPTS AND TERMS

 

This section sets out some of the terms and concepts used in the rest of the Report explaining the way in which they are used.

 

Parliament

 

The Constitution deals with privilege for the National Assembly, the NCOP and provincial legislatures. By and large the provisions are the same. The report generally refers to the power of 'Parliament' as short hand for the powers of each of the houses of Parliament or the power of the houses acting together. Usually, comments about Parliament will also apply directly to provincial legislatures.

 

Privilege, immunity and contempt of Parliament

The terms 'privilege', 'immunity' and 'contempt of Parliament' are used in a range of different ways in decisions and writing on Parliament. In this Report the terms are used in a way that allows one to distinguish these different concepts clearly, and that now appears to be the most generally accepted usage.

'Privilege' will refer to the rights and immunities which in law belong to the Houses of Parliament and to the individual members and officers of Parliament and, where appropriate, provincial legislatures. 'Privileges' grant immunity from the regular operaton of the law. Privilege exists to protect the democratic operation of Parliament. It exists only insofar as it is necessary to allow Parliament and its members to fulfil their functions properly. The privilege of freedom of speech is often described as the most important privilege.

'Immunity' flows from privilege. It is a consequence of privilege. MPs and sometimes officers of Parliament are `immune' from any judicial proceedings that rely on privileged information or a privileged occasion. The most well-known example of an immunity based on a parliamentary privilege is the immunity that the privilege of freedom of speech in Parliament gives members of Parliament. Its practical effect is that members may not be sued if they make defamatory statements in the course of parliamentary proceedings and that they may not be prosecuted if the statement constitutes an offence.

'Contempt of Parliament' covers offences against Parliament which impede its ability to function properly. The Powers and Privileges of Parliament Act sets out a list of acts that constitute contempt of Parliament. 'Contempt' covers a wide range of actions. It may include rowdy behaviour by visitors to Parliament, the use of disrespectful language in writing about Parliament outside Parliament and a wilful breach of the rules of Parliament (Powers and Privileges of Parliament Act section 10(3)(c)). An example of a contempt that is a breach of rules is the use of unbecoming language in Parliament by a member.

Contempt of Parliament includes breaches of privilege - for instance when a member is summonsed to court on the basis of a privileged statement made in Parliament contempt of Parliament is committed.

* Should the traditional terminology be retained?

In 1967 the Report of a Select Committee of the House of Commons suggested that the terminology be revised. In particular, it suggested that the term 'privilege' has connotations not appropriate in a modern democracy. The alternative that it proposed was to replace 'rights and privileges' with 'rights and immunities' and to replace 'breach of privilege' with 'contempt of Parliament'. This proposal was rejected by the House of Commons.

Parliamentary privilege is a right of members and the legislature. A possible alternative to the word 'privileges' is simply 'rights' or 'parliamentary rights'. This is an accurate description but may not be considered to capture fully the fact that 'privilege' exists to protect the democratic operation of Parliament and is not intended as a bonus to individuals for being parliamentarians. In this connection Marshall writes:

In one sense the term 'privilege' may be used to point a contrast with a facility enjoyed as a right. The soldier's leave, said to be a 'privilege rather than a right' is nevertheless not undeserved. A 'privilege' may also carry the idea of a power or facility exercised as an adjunct of some specific role, office or status.'

Marshall thinks that the use of the word privilege may permit a useful link with the law of defamation which recognises privileged occasions.

Although the Australians passed legislation reforming substantial areas of their law relating to parliamentary privileges and powers they have retained the term 'privilege' and their Act is called the Parliamentary Privileges Act. However, the author of the standard text on Australian Senate Practice (Odgers' Australian Senate Practice) chose to use the word 'immunity' rather than privilege. He explains:

The term privilege, in relation to parliamentary privilege, refers to an immunity from the ordinary law which is recognised by the law as a right of the Houses and their members. Privilege in this restricted and special sense is often confused with privilege in the colloquial sense of a special benefit or special arrangement which gives some advantage to either House or its members. Privileges in the colloquial sense, however useful or well-established they might be, have nothing to do with immunities under the law.'

 

What are the Rules and Orders?

 

The Constitution refers to the Rules and Orders of Parliament on a number of occasions. For instance -

• Rules and orders are to deal with the joint business of the houses (section 45).
• The NA and NCOP may make rules and orders concerning their 'business' (ss 57 and 70).
• Freedom of speech in each house is 'subject to its rules and orders' (ss 58 and 71).

The most obvious rules and orders are the 'standing' rules of each house and the published 'joint rules' which govern joint business. These are the rules adopted by the House, or in the case of joint rules, both houses. However, certain rules are not included in the formal rules book. A new rule, agreed to by the relevant house, would apply even if it is not yet included. Certain rules are so well-established that it is not considered necessary to record them.

Recently the word 'Orders' was dropped from the title of the 'Standing Rules for the National Assembly' and the NCOP has 'Rules' rather than the traditional 'Rules and Orders'. This terminology is not important. (In the House of Commons the term 'Standing Orders' is used.) These published standing rules and other rules clearly carry out the function alluded to when the Constitution speaks of 'rules and orders'. To avoid confusion the following paragraphs set out the current usage in Parliament in relation to 'rules', 'rulings' by the Speaker and 'orders'.

 

Rules

 

The Standing Rules of the National Assembly, the 'Preliminary Rules' of the NCOP and provincial 'Rules' or 'Rules and Orders' are adopted under the constitutional power granted to each house of Parliament (in sections 57 and 70) and every provincial legislature (section 116) to make rules and orders concerning their business.

As 'standing' rules these rules have continuing effect and are binding unless they are suspended or changed. Generally it is considered that parliamentary rules and orders should not be inflexible. This enables parliaments to respond to new needs and unexpected situations. Thus our parliamentary rules can be suspended by the relevant house. Rule 2 of the NA Standing Rules states:

(1) Any provision of these Rules relating to the business or proceedings at a meeting of this House or of a committee of this House, may be suspended by resolution of this House....

(3) The suspension of any provision shall be limited in its operation to the particular purpose for which such suspension has been approved.

 

In addition, the house can amend rules at any time and NA Rule 1 and NCOP Rule 2 permit the Speaker or Chairperson to 'give a ruling' or 'frame a rule' in respect of a matter not covered by the Rules. If the Speaker chooses to 'frame a rule' in such circumstances, the rule holds until it is considered by the Rules committee.

Nevertheless, the Constitution restricts the content of the rules and orders of our Parliament in general terms (for instance they must comply with section 1 of the Constitution and must have 'due regard to representative and participatory democracy, accountability, transparency and public involvement' - sections 57 and 70). They must also comply with the Bill of Rights. In addition, certain specific provisions of the Constitution determine (or limit) the content of rules and orders. For instance, the requirement that, in general, Parliament must be open to the public, prevents a rule prohibiting all public access to Parliament (sections 59 and 72).

 

Rulings

Rules need to be applied to a variety of different situations. It is usually the presiding officer who makes decisions concerning the application of rules and they are most frequently made in response to a point of order. In order to assist future decision-makers and to ensure consistency, these 'Speaker's rulings' (or 'chairperson's rulings') are recorded. However, such a ruling is not a rule but an interpretation of a rule.

It is also possible that rulings may become binding over time. Rulings clarify the practice in a parliament and, as that practice becomes well-established it may become regarded as binding. Thus the Australian House of Representatives Practice states:

The question sometimes arises as to whether rulings are 'binding' and, in a literal sense, the answer is 'no', but the question is more complex than it may appear. There have been many rulings given over the years which are consistent with one another, consistent with the standing orders and conventions of the House, and which are supported, implicitly or explicitly, by the House, Such rulings form part of the body of practice which continues to govern the operations of the House and rulings with that status are, in effect, regarded as binding, although even then Speakers are able to give rulings which take account of new factors or considerations. In this way rulings and interpretations may be developed and adapted over time. From time to time rulings may be given which are inconsistent with previous rulings and interpretations, and which may be made in circumstances which do not allow any opportunity for reflection. Even though such rulings may go unchallenged at the time, it would be incorrect to say that they are binding on future occupants of the Chair.'

The situation will vary from parliament to parliament. The Australian House of Representatives Practice points out that the position is different in the Australian Senate where certain rulings have the status of resolutions. It continues to state:

The situation in the [Australian] House of Representatives is in contrast with that in the United Kingdom House of Commons, where many rulings are given after the Speaker has been forewarned of the subject by a Member who may advise that he or she will take a point of order on it, and the Speaker thus has an opportunity to take account of any relevant precedents and of all the considerations involved. 'Such a ruling forms a precedent, often fitting into its place in a series of precedents from which a general rule may be eventually drawn for all future practice in a particular range of procedure'.

Like the presiding officer, the house itself can make a decision on the meaning or application of a rule. Again, such a decision or 'ruling' is not a new rule but an application of a rule.

The Speaker may give rulings in the house or make 'private rulings'. The latter are often given in response to a question about a future point of procedure or to clarify points of practice. For instance the meaning of 'day' in a decision of the House of Assembly to suspend certain members was subject to a private ruling to the effect that 'day' meant 'working day'.

 

Orders

 

In the past motions resulted in either a resolution or an order. Thus Kilpin wrote 'a motion when agreed becomes a "resolution" if a wish or opinion is expressed and an "order" if a command is expressed.' Nowadays this distinction is not maintained in the South African Parliament and the term 'resolution' is used for most decisions although sometimes 'instructions' are issued to committees and the Powers and Privileges of Parliament Act envisages 'ordering' someone to attend before Parliament.

The reference to 'rules and orders' in the Constitution is no more than a reference to what are now known of as 'rules' and in the light of the current practice there seems no reason to give the word 'order' any special constitutional meaning.

Accordingly, this Report uses the term 'rules' to cover the constitutional concept of 'rules and orders'.

 

Freedom of speech and parliamentary rules

Particularly important in the context of privilege is the fact that the constitutionally guaranteed freedom of speech in Parliament is subject to parliamentary rules. This means, for instance, that the National Assembly can make rules restricting speech in Parliament. As this Report argues later, such rules are subject to provisions of the Constitution protecting democracy, accountability and rights. National Assembly Standing Rules presently contain restrictions on a member's freedom of speech. For instance, rule 83 permits the presiding officer to stop a member from repeating arguments, rule 96 prohibits offensive language (so-called 'unparliamentary speech'), rule 99 prohibits 'reflections upon the competence or honour of a judge'. Some of these limits on speech, such as the prohibition on offensive language, may seem very unclear. However, as they are applied, both here and elsewhere, an understanding of their meaning has developed. For instance, by examining Speakers' rulings one can clarify what would constitute 'offensive language'.

This description of rules and their application, allows one to distinguish between a rule which could legitimately limit a member's speech in Parliament and a Speaker's 'ruling' which would be an application of such a rule. Unless the situation envisaged in NA Rule 1 or NCOP Rule 2 arises, a presiding officer would not be able to impose a new rule limiting speech.

 

CHAPTER 3

GENERAL IMPLICATIONS OF NEW CONSTITUTION

 

3.1 The Constitution is supreme

The most important implication of the change of legal order in South Africa is that the Constitution is now supreme. Among other things this means that, like all other state institutions, Parliament and the provincial legislatures derive any power that they have from the Constitution. It also means that decision-making in Parliament is subject to the provisions of the Constitution including the Bill of Rights. This does not mean that Parliament loses its independence and powers. It simply means that Parliament must act in a way that accords with the Constitution and the values that it protects.

The Constitution has certain direct implications for powers and privileges of Parliament. These are outlined in the following sections.

3.2 Certain traditional privileges are constitutionalized

The Constitution constitutionalizes certain aspects of privilege. Amongst those privileges constitutionalized are -

• Parliament's power to determine and control its own proceedings (NA s 57(1); NCOP s 70(1); PL 116(1));
• Parliament's power to summons people (NA s 56; NCOP s 69; PL s 115);
• freedom of speech of MPs (NA s 58(1)(a); NCOP s 71(1)(a); PL s 117(1)(a)); and
• immunity from civil and criminal proceedings (s 58(1)(b); NCOP s 71(1)(b); PL 117(1)(b)).

3.3 The Constitution expressly limits or amends certain privileges

The Constitution amends or limits certain traditional privileges. For example, it limits Parliament's right to control its internal arrangements by the requirements that, in general, committee meetings must be open to the public (section 59) and that certain committees must be established (section 45).

3.4 Certain traditional privileges implicitly excluded

Many if not most legislatures have the power to expel members for contempt of Parliament. The South African Constitution seems to envisage using this penalty in one situation only: when a member is absent without permission and the Rules and Orders prescribe loss of membership (section 47(3)(b)). This matter is discussed further in Chapter 6.

 

3.5 The Constitution requires other privileges to be 'prescribed by national legislation'

 

At present the Constitution protects certain privileges, some are expressly incorporated in the Powers and Privileges of Parliament Act, and yet others are included in our law because they were privileges of the House of Commons in 1910.

3.6 The Constitution affects processes and decision-making power of Parliament

In the past courts could determine whether or not a certain privilege existed but a certificate from Parliament that a matter concerned privilege and that the court should, accordingly, stay the action, was decisive. No appeal was possible from a decision by Parliament under its rules relating to privilege or contempt of Parliament.

The Constitution changes this position in certain ways. Although it clearly leaves the determination of privilege primarily in Parliament's hands by giving Parliament control over its internal arrangements, proceedings and procedures (s 57(1)(a)), it requires privileges to be established by legislation and gives the courts the power to review such decisions for compliance with the Constitution. In other words, Parliament's power to control its own procedures and determine privileges and immunities is subject generally to the Constitution and more particularly to the Bill of Rights and the values of accountability, transparency and responsiveness enshrined in section 1.

This view of the constitutional relationship between the courts and Parliament is not accepted by all. It may, for instance, be argued that the right to control internal arrangements and determine further privileges is constitutionally granted and therefore not itself subject to limitation by other constitutional provisions. This interpretation of the Constitution does not seem to be correct. First, in President of South Africa v Hugo 1997 (6) BCLR 708, the Constitutional Court found that constitutional powers granted to the President are subject to the values in the Bill of Rights. Second, section 1 which contains very basic constitutional values, is specially entrenched and thus both by virtue of its subject matter and by virtue of its specially entrenched status it must control action taken by the state.

A third factor that must be taken into account in this regard is the political commitment to the values enshrined in the Constitution generally and in the Bill of Rights. There is no indication that Parliament wishes to operate in a way that disregards rights. Instead, as we understand it, it is seeking for an approach which honours rights at the same time as respecting the separation between the legislature and the courts and accommodating the political nature of the legislative process. The Bill of Rights anticipates situations such as this by allowing the limitation of rights in certain circumstances.

 

3.7 Conclusion

 

The Constitution thus has a number of implications for the powers and privileges of Parliament -

(i) It deals expressly with certain matters relating to privilege.

(ii) It requires other privileges to be spelt out in national legislation.

(iii) It requires parliamentary affairs to be conducted in a manner that is consonant with the other values enshrined in the Constitution.

 

CHAPTER 4

WHAT RIGHTS DOES PARLIAMENT NEED IN A DEMOCRATIC PROCESS? POWERS, PRIVILEGES AND IMMUNITIES

SUMMARY

 

This Chapter deals with the privileges of Parliament, the most important of which is the privilege of freedom of speech. It also discusses briefly whether all privileges of Parliament should be spelt out in statutes or whether privileges in the common law should be retained. Related to Parliament's privileges is its power to define and punish contempt of Parliament. This is dealt with in chapters 5 and 6.

Under the privilege of freedom of speech the most important question is whether the protection of freedom of speech in the Constitution is adequate or whether it should be extended. Here the Report recommends that consideration be given to extending the constitutional protection in certain ways -

• to the houses themselves (at present the Constitution protects the privilege for members but not the house )
• by defining the ambit of the privilege - does it cover only speech in the house and its committees or does it extend further to parliamentary proceedings understood more broadly?
• to joint sittings of the NCOP and National Assembly
• to protect parliamentary speech from being examined in Court not only when it is the basis of an action against a member but also in other circumstances

The Chapter proceeds to discuss the way speech may be limited by the House itself. It does this in two ways in its rules: (i) by controlling proceedings and thus when members may speak and (ii) by controlling the content of speech such as repetition and unparliamentary language. It then considers the abuse of freedom of speech (for instance when it is used to defame members of the public). This raises the question whether members of the public should have some form of recourse when defamatory statements are made about them in Parliament. The Australian approach of allowing a response to be published in Hansard is described. Another issue is whether abusive speech about members in other houses (for instance a provincial legislature) should be classified as unparliamentary.

The next section discusses the possibility of waiving the privilege of freedom of speech. This is a question that has been raised both in the UK and New Zealand where MPs have wanted to waive privilege so that they could pursue actions for defamation against the media. Finally, the question of the publication of parliamentary proceedings, reporting on Parliament and broadcasting Parliament is considered. The Report suggests that new legislation is urgently needed to clarify the position in relation to broadcasting parliamentary material.

The right of Parliament to control its internal arrangements is discussed more briefly. This right is more narrow in South Africa than in many other Commonwealth parliaments because the Constitution lays down certain requirements for Parliament, including requirements relating to public accessibility of Parliament.

The last privilege discussed in this Chapter is freedom from arrest or molestation. This privilege, it is suggested, is now very narrow, offering only an exemption from attending civil cases while the House is in session and an exemption from giving evidence before another house without the permission of the presiding officer. Consideration needs to be given to whether the first aspect of this privilege (exemption from civil proceedings) should be retained in its present form or limited in some way. The Report suggests that new legislation might give the Speaker a discretion in such matters.

Over the past three or four years questions have been raised about other privileges. Is it true, for instance, that courts have no jurisdiction over crimes committed within the precincts of Parliament? The Report suggests that this is not part of South African law. A more complicated issue concerns the right of a house of parliament to determine its membership. This ancient privilege has been given up in most jurisdictions and there seems no reason to revive it here.

The last part of this Chapter considers codifying privilege in an Act of Parliament. The Constitution states that privileges may be laid down in national legislation. It has been argued that such legislation need only refer to the common-law privileges that existed when the Constitution was adopted and need not specify what they are. However, the Report suggests that some form of codification should be attempted. The usual objection that a necessary privilege might be 'left out' seems unduly alarmist. A study of privilege in many jurisdictions suggests that those discussed in this Report and presently found in the Powers and Privileges of Parliament Act are all that are needed in a democracy to protect Parliament's role. In addition, specifying exactly what privileges Parliament has seems appropriate. Citizens should not be left to guess the ambit of parliamentary privilege.

 

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INTRODUCTION

 

As explained in chapter 2, the term parliamentary privilege refers to certain special rights which the houses of Parliament and their members have. Parliamentary privileges exist to enable Parliament to carry out its functions properly. Freedom of speech in Parliament is perhaps the most important privilege. It ensures that matters that may be controversial or disputed can be aired by members of Parliament without the fear that they will be harassed for having done this. An immunity from court proceedings flows from the privilege and means that a member cannot be sued for defamatory statements made in Parliament and cannot be prosecuted for statements made in Parliament that may be criminal.

The fact that privilege exists to enable the legislature to fulfil its functions itself indicates the limits of parliamentary privilege. Parliament should have only those privileges necessary for it to fulfil its functions. Griffith and Rye quote Hatsell, writing in the 18th century, as saying the privileges of Parliament are rights which are 'absolutely necessary for the due execution of its powers'. In other words they should extend no further than is necessary.

A number of different issues can be included under the broad heading 'powers and privileges of Parliament'. Rights that attract immunity from the normal operation of the law usually form the main focus of discussions on the privileges of Parliament. Other closely related matters are Parliament's right to define what is contempt of Parliament and its penal power, both of which protect the independence of the legislature. Ancillary powers, such as the power to summon witnesses and to require people to report to Parliament, enable it to fulfil properly its primary functions of passing legislation and overseeing executive action. Because these powers do not involve immunities they are better characterised as 'powers' rather than 'privileges' of Parliament. Accordingly, this Report discusses privileges and their related immunities in this chapter and Parliament's related powers in subsequent chapters. However, it should be remembered that the law in this area is far from clear (both here and elsewhere) and one should not attach too much importance to the labels attached to the 'powers and privileges' of Parliament.

This Chapter of the Report first considers:

(1) Freedom of speech and debate, and proceedings in Parliament (including matters relating to the publication and reporting of proceedings)

(2) The right to control internal arrangements.

(3) Freedom from arrest and molestation.

(4) A number of uncertain issues: criminal acts in parliament, serving summons, and determining the membership of Parliament.

The second part considers whether all parliamentary privileges should be contained in legislation or whether privilege can be governed by the common law.

The penal power of Parliament and ancillary matters such as the summonsing of witnesses are covered in later chapters.

 

4.1 POWERS AND PRIVILEGES

4.1.1 FREEDOM OF SPEECH AND DEBATE AND PROCEEDINGS

 

The right of South African legislatures to freedom of speech, debate and proceedings is derived from the right won by the British House of Commons and incorporated in the 1688 Bill of Rights. There it is stated, in article 9, 'That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached in any court or place out of Parlyament'.

The right is fully protected in section 2 of the Powers and Privileges of Parliament Act. Following generally the traditional understanding of the privilege, section 2 states:

'(1) There shall be freedom of speech and debate or proceedings in or before Parliament and any committee, and such freedom shall not be liable to be impeached or questioned in any court or place outside Parliament.

(2) Anything said by a member in or before Parliament or a committee, whether as a member or as a witness, shall be deemed to be a matter of privilege as contemplated in section 5.

 

(3) The provisions of subsection (1) shall not apply to any person, other than a member, giving evidence before Parliament or any committee.'

and

This section thus protects speech in Parliament and parliamentary proceedings from being impeached or questioned in court. The privilege of freedom of speech is now also protected in the Constitution. Separate sections of the Constitution also give South African legislatures the right to determine and control their internal arrangements etc. But the constitutional provisions may be interpreted to be more limited than those in the Act.

The following section of this Report sets out the constitutional provision and comments on its adequacy. It then deals with a number of related issues:

Limiting speech in Parliament

Abuse of freedom of speech

Waiving the privilege of freedom of speech and proceedings

The publication of proceedings in Parliament both by Parliament and by others.

4.1.1.1 Constitutional protection of freedom of speech in Parliament: Is it adequate?

Section 58(1): Cabinet members and members of the National Assembly -

(a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and

(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for

(i) anything that they have said in, produced before or submitted to the Assembly or any of its committees; or

(ii) anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.

Section 71(1) provides for freedom of speech in the NCOP in similar terms, and section 45(2) grants Cabinet members, members of the National Assembly and delegates to the NCOP the same privileges in joint committee meetings as they have before the Assembly and the Council. Section 117 protects freedom of speech in provincial legislatures.

The constitutional protection of freedom of speech seems to be more limited than the traditional right taken up in the Powers and Privileges of Parliament Act. In particular:

(i) the Constitution protects only Ministers and members of the houses and does not appear to grant the right to the houses of Parliament themselves;

(ii) the constitutional protection may not extend to 'proceedings';

(iii) it does not cover joint sittings of the houses; and

(iv) the immunity it gives seems limited to proceedings in which the member concerned is a defendant or accused and does not prohibit other investigation of parliamentary speech in courts.

Section 2 of the Powers and Privileges of Parliament Act, which protects freedom of speech and debate in Parliament, is broader than the constitutional provisions as it covers Parliament as well as its members. It extends the protection to 'proceedings' in Parliament, covers joint sittings and protects parliamentary speech and proceedings from being 'impeached or questioned' in a court. The following sections cover each of these issues.

(i) The Constitution protects the privilege in relation to members only. Should legislation or constitutional amendment extend the privilege to the Houses?

Traditionally the privilege of freedom of speech and proceedings has been characterised as a privilege of the legislature itself. However, some writers describe it as a privilege vested in both the legislature and in its individual members. Viewing the privilege as vesting in both the individuals and the House serves to emphasise that a member holds it only as a consequence of his membership of a collective - the privilege is not a personal bonus but relates to the activities as a member.

The narrowness of the constitutional provision may be problematic. First, attaching the privilege to members only and not to the legislature as a whole obscures the fact that privilege exists only to enable the legislature to fulfil its functions. Secondly, the protection may be too narrow for technical reasons. For instance, it is conceivable that legislation forbidding the discussion of certain matters by Parliament or a house of Parliament could undermine the ability of Parliament itself to fulfil its functions. In addition, some argue that this privilege can be waived. If it is open to waiver, as a privilege of the legislature it is the legislature that must agree to the privilege being waived, but if it is merely a privilege of individual members they might be able to waive it in specific cases without consulting the house. (See further below on waiver.)

Recommendation: Constitutional amendment should be considered to ensure that this privilege is fully protected in relation to legislatures and not limited to their members. Alternatively a new Powers and Privileges of Parliament Act could extend the privilege to legislatures.

(ii) Proceedings

In Commonwealth jurisdictions where the privilege of freedom of speech is derived directly from the 1688 Bill of Rights it has two components. First, 'speech' that is part of parliamentary proceedings is protected. Secondly, 'parliamentary proceedings' more generally are protected. Generally these two components of the privilege do not raise separate problems: parliamentary proceedings are protected, including speech that is part of such proceedings.

The South African constitutional provisions concerning speech in Parliament and provincial legislatures cover the houses and their committees. For instance, section 58(1) grants 'freedom of speech in the Assembly and in its committees' and gives members immunity from legal proceedings for anything said or revealed in the Assembly or its committees.

The extent of the section 58(1) immunity is not clear. First, because 'proceedings' are not mentioned the section could be interpreted as being limited to speech in the respective houses and their committees only and not to parliamentary proceedings generally. Secondly, even if section 58(1) is interpreted to encompass the full traditional privilege and thus to include 'proceedings', the meaning and extent of 'proceedings' of Parliament are disputed.

Two questions arise here: Should legislation contain a definition of this privilege which clearly extends to matters beyond the formal debates of the House (as section 2 of the 1963 Act does by including a reference to 'proceedings')? Secondly, should the meaning of proceedings or the full extent of protected speech be spelt out clearly?

Extension of privilege to 'proceedings': Limiting the privilege to speech alone makes it too narrow. For instance, it could mean that submitting a matter to be put on the order paper would not be covered by privilege. In an early United States case the question arose whether voting on a resolution was covered by the privilege of 'freedom of speech and debate' which is protected in the US Constitution. Clearly, if only speech itself is covered the protection would be very limited.

The US Supreme Court found that their Constitution covered not only debate and speech narrowly interpreted but also anything 'generally done in a session of the House by one of its members in relation to the business before it'. It based this interpretation on the history of the privilege and its function in the United States system of government. Similar arguements should succeed here. Nevertheless, the extreme specificity of the South African constitutional provisions and the fact that it is desirable to avoid litigation suggest that it would be wise to define the privilege more clearly.

Definition of 'proceedings': The meaning of 'proceedings' has caused difficulty in many jurisdictions. It is clear that a speech formally delivered in the House is privileged but, for instance, is a letter written by a member to a Minister protected? Is a prepared but never-delivered speech which falls into the wrong hands protected?

As a result of these difficulties some jurisdictions have sought to define it or, at least, provide statutory guidance as to the extent of 'proceedings'. More often, parliamentary committees have recommended that 'proceedings' be defined but those recommendations have not been implemented.

At present the 'proceedings' protected in the Powers and Privileges of Parliament Act cover:

'What is said and done by a Member in the exercise of his functions as a Member and in the transaction of Parliamentary business' (Corbett CJ in Poovalingam v Rajbansi 1992 (1) SA 283(A) at 294C).

This approach means that the privilege does not extend to everything done within the confines of Parliament but is limited by reference to the functions of an MP and the transaction of parliamentary business. It may accordingly also cover actions outside Parliament. It is unusually wide because the reference to 'functions as a member' can easily be construed to cover constituency work.. This was clearly not intended by Corbett CJ who also emphasised the need to limit privilege so that the legitimate claims of individuals could be protected. Constituency work is generally not considered to be protected by privilege.

In section 16 the Australian Parliamentary Privileges Act, 1987 defines 'proceedings in Parliament' (which are privileged in Australian under art 9 of the Bill of Rights of 1688) as meaning -

'all words spoken or acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes -

(a) the giving of evidence before a House or a committee , and evidence so given;

(b) the presentation of submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document to formulated, made or published.'

This approach retains a broad definition but, in the list of examples, settles certain disputes. It thus clarifies the position to a certain extent without jettisoning the flexibility of the concept.

Recommendation: Provide either a definition of 'proceedings' or at least an indication of what it means (as the Australians have done) in new South African legislation. In this way one could anticipate and avoid some of the likely disputes that the vagueness of the term will give rise to. It would also provide better guidance to members than at present where determining the extent of the privilege depends on a detailed knowledge of the law.

A statutory definition of 'proceedings' could not limit the constitutionally protected freedom of speech in Parliament. It could, however, extend that provision because the Constitution permits national legislation to prescribe other privileges. In addition, courts are likely to defer to a carefully considered definition of 'proceedings', acknowledging that Parliament is an appropriate body to determine such matters and overriding such legislation only when it is clearly unconstitutional.

In providing a definition or indication of the extent of protected 'proceedings', legislators will have to consider a number of border line cases. The following list, which is based on cases which have arisen in South Africa and elsewhere, is intended to give an indication of situations in which there is agreement that privilege exists, more controversial situations, and, finally, situations which are generally considered to fall outside the scope of legitimate parliamentary privilege. Legislation could not (and should not attempt to) determine every possible question about the existence of privilege. Thus the Australian approach of providing a definition followed by some examples seems appropriate. Parliament and the courts will then refine the definition as actual cases arise, guided by the wording of the legislation. Nevertheless, in framing the definition and indicating its limits it is necessary to consider likely problems and to test any definition against them.

In determining the ambit of privilege the key must be whether privilege is necessary for Parliament's proper functioning. In Poovalingam v Rajbansi, Corbett CJ states that privilege is protected for two reasons: (i) to ensure Parliament has complete control over its own proceedings; and (ii) to give members a complete right of free speech in Parliament (p 286). However, he emphasises that it should not be readily interpreted to defeat or limit the legitimate claims of litigants (p 294).

Situations in which it is generally agreed that the privilege of freedom of speech and parliamentary proceedings applies

• A speech delivered in Parliament
• Discussion in parliamentary committees - this would include any sub-committee established by a parliamentary committee
• Proceedings of Parliament conducted outside the precincts of Parliament

In May 1988 the Extended Public Committee on Provincial Affairs: Transvaal met in the auditorium of the Reserve Bank in Pretoria. Members were subjected to security checks on entering the building. The Cahirperson of the Committee ruled that the part of the building used by the committee could for time being be termed parliamentary precincts (Annotated Digest of Rulings from February 1988, 180)

Situations in which application of the privilege of freedom of speech and parliamentary proceedings is controversial or uncertain

• Parliamentary officials

A member of Parliament's staff may be asked for advice on a matter during committee proceedings. If, in answering, he or she quotes a defamatory statement made by a member he or she is not protected under the present Powers and Privileges of Parliament Act. The official would be able to claim qualified privilege under the common law if he or she were sued for defamation. In terms of the common law qualified privilege is given if a statement is made in the discharge of a duty. The privilege is qualified rather than absolute because it does not apply if it can be shown that the person who uttered the defamatory statement acted with malice. Parliamentary privilege, on the other hand, is absolute - members are protected whether or not they acted with malice.

• Correspondence with ministers - the Strauss case in Britain

Strauss, an opposition MP, wrote to a Minister complaining about the activities of a deregulation board. The Minister passed the letter on to the Board. The Board threatened to sue for libel. The Committee of Privileges reported that Strauss' activity did fall within the meaning of 'proceedings of Parliament' but the House of Commons rejected this finding. A point that is often made in arguments against allowing letters such as that by Strauss to be protected is that he could have raised the matter in the House (say on adjournment or as a Question). It should be noted that the Australian definition of proceedings in Parliament does not cover correspondence such as that in the Strauss case.

• Prepared but undelivered speech

A prepared but undelivered speech may fall into the wrong hands through no fault of the member. The Australian Parliamentary Privileges Act covers this through its express inclusion of 'the preparation of a document for purposes of or incidental to the transacting of any [parliamentary] business' in its definition of proceedings in Parliament (section 16).

Note: A speech released to the press 'check against delivery' is not protected. Handing a speech to the press does not seem to fall into any accepted definition of proceedings in Parliament. Accordingly the member may be liable if the speech contains defamatory comments because they are 'published' when the speech is released to the press whether or not the press is constrained from using it before delivery.

• The application of labour law to employees of Parliament

A line of English cases suggested that Acts of Parliament would not apply to Parliament unless they were expressly made applicable. It also allowed the House of Commons to avoid price restraint legislation and increase refreshment prices, and it formed the basis of arguments that labour law provisions do not apply to employees of Parliament.

This approach was rejected in Australia in 1981 in a matter between Parliament and an employee: 'The plain fact of the matter is that her [the employee's] relationship with Parliament is not part of the internal business of Parliament but rather it is a relationship between Parliament and a stranger.' The Australian judge distinguished the [Liquor] Licensing Act from the Compensation Act saying that applying the Licensing Act to Parliament would have the effect of regulating the conduct of the internal business of Parliament whereas matters under the Compensation Act do not fall within Parliament's internal arrangements.

• Register of Members' Interests

In Rost v Edwards, an English case, the plaintiff, an MP brought an action for defamation against the defendant for a defamatory article. In his defence, the defendant wanted to rely on information in the Register of Members' Interests and to ask the court to examine whether the plaintiff had made appropriate disclosures. The Court found that the Register did not form part of parliamentary proceedings. The defendant had argued that both criteria for registration and the Register were public documents and that questions to a member about a failure to register could not affect free speech in the House or the dignity of the house - it only concerns the conduct of the particular MP.

Situations in which the privilege of freedom of speech and parliamentary proceedings is generally agreed not to apply

• Activities within the precincts of Parliament which are not related to the transaction of parliamentary business or members' functions.

Poovalingam v Rajbansi: Both P and R were members of the House of Delegates. R 'hand delivered' a letter to all 45 members of that House 'at their seats in Parliament' (in fact on their desks in the House). The letter concerned allegations (of corruption etc) that P had made against R in the House. It attempted to contain the 'mischief' that R felt those allegations did. It included defamatory statements. Both P's allegations and R's letter dealt with the possibility of calling for a commission of enquiry. Corbett CJ concluded that the letter was not protected by privilege because it had nothing to do with the parliamentary business to be transacted on the day the letter was delivered and it did not fall within a parliamentary procedure (ie it was not a question, motion etc). The reference to a commission of inquiry which could be established by the House was too tenuous to bring the letter within the ambit of 'parliamentary proceedings': 'In truth [the letter] was a further salvo discharged in the running battle which had been going on between [R and P] for years.'

• Constituency work
• Statements made during the transaction of parliamentary business which are unrelated to parliamentary business

May state that 'particular words or acts may be entirely unrelated to any business which is in the course of transaction or is in a more general sense before the House'. Such acts and words are not protected. This means that a casual conversation between members - even if it concerns a matter before the house - is not protected.

(iii) Does privilege extend to joint sittings of the houses?

Separate sections cover privilege in the different houses (s 58 - NA and s71 - NCOP) and in joint committees (s 45). Joint sittings of the two houses anticipated by ss 42(5) and 84(2)(d) are not covered.

Two interpretations of these provisions are possible. First, one could argue that freedom of speech in this context must be interpreted to cover all parliamentary business because this is its traditional meaning both in South Africa and in other parliaments. This would mean that further provisions protecting speech in joint sittings are not necessary. An alternative approach would be to legislate specifically for freedom of speech in joint sittings. This would address a possible technical interpretation of the Constitution which would say that the careful protection of the freedom in three specific situations (the NA, the NCOP and joint committees) means that it does not extend to joint sittings. Even if this interpretation seems unacceptably technical and therefore unlikely, there can be little doubt that, should the issue arise, it would be strongly contested. Clarification in legislation would put the matter beyond doubt.

At present no debate occurs at joint sittings. For this reason it may be argued that protection is not required. However, this may change as the President's right to summons Parliament to 'an extraordinary sitting to conduct special business' (section 42(5)) could be used to conduct a debate.

Joint proceedings - whether in the houses sitting jointly or in joint committees - raise a procedural question also. Each house may have different practices and rules. A decision needs to be taken about the applicable rules and procedures for dealing with matters of privilege in joint meetings.

Recommendation: Extend the privilege of freedom of speech to joint sittings of the NCOP and National Assembly. This could be done either by constitutional amendment or legislation. In addition, Rules need to be adopted to deal with matters of privilege in joint sittings.

(iv) The extent of the constitutional immunity: can speech or proceedings be 'impeached or questioned' in court?

Odgers points out that the immunity accorded to parliamentary proceedings and speech has two aspects. First, members have immunity from criminal and civil action and examination in legal proceedings for their contributions to proceedings in Parliament. Secondly, the courts may not enquire into or question proceedings in Parliament.

The immunity of members to court proceedings usually also means that statements made in Parliament may not be enquired into in court cases even where their use is not for the purpose of an action against a member or when the cause of action arises from something done outside Parliament. A New Zealand case, Prebble v Television New Zealand, provides a good example. Prebble, a former government minister, brought a defamation action against TVNZ. TVNZ argued that they were not liable because the comments made in the programme concerned were true and constituted fair comment. To establish truth and fair comment, TVNZ wanted to rely on speeches made in Parliament. These speeches, TVNZ claimed, revealed a conspiracy. The highest court of appeal for such matters for New Zealand, the Privy Council, held that that evidence of speeches in Parliament was inadmissible. Its introduction in the trial would involve inquiring into a member's motives. This was prohibited by the privilege of freedom of speech and proceedings since it would amount to a questioning of the proceedings of Parliament.

Initially the prohibition on inquiring into something said on Parliament was also considered to prevent courts from using Hansard as an aid to statutory interpretation. However, nowadays this is considered a legitimate use of parliamentary speeches and reports and other reasons (relating to the difficulty of establishing the intention of Parliament) form the basis of the reluctance of some courts to use Hansard in this way.

The second aspect of the immunity - that courts may not enquire into or question proceedings in Parliament - means that courts may not investigate parliamentary procedure. However, where a Constitution lays down procedural requirements, courts may enquire into whether they have been properly followed. This issue is considered in the section on Parliament's right to control its internal arrangements, below.

Is the immunity granted by the constitutional provision as broad as that contained in section 2 of the Powers and Privileges of Parliament Act? This question is difficult to answer. Section 58(1)(a) appears to incorporate the traditional privilege of freedom of speech. Usually this would mean that speech in Parliament may not be subject to any form of questioning in courts. It is possible that our courts would interpret the provision in that traditional way. However, section 58(1)(b) which spells out the immunity is precisely formulated and more limited. It protects members from 'civil and criminal proceedings, arrest, imprisonment and damages'. It does not prohibit courts from inquiring into speech or proceedings in Parliament for other reasons. It may not be interpreted to cover situations such as Prebble.

If the section is interpreted in the second, more limited way, the traditional privilege granted to Parliament would be significantly reduced. Although members themselves would retain their immunity from prosecution, speech in Parliament could be examined in courts in defamation actions such as Prebble.

Recommendation: Legislation should exclude the 'examination' of parliamentary speech and proceedings in courts whether or not a member is the defendant or accused in the case.

(v) Summary

It is arguable that the constitutional protection of freedom of speech and proceedings in Parliament is more limited than that contained in the Powers and Privileges of Parliament Act. It may be that courts will recognise that the intention was to preserve parliamentary privilege and the necessary separation between the courts and Parliament and following the lead of the US Supreme Court, interpret the provisions to encompass the full traditional privilege. Relying on this obviously carries a risk; it also leads to uncertainty as it would require litigation to clarify the situation. A more cautious approach would be either to amend the Constitution to make it clear that all the elements of the privilege referred to above are covered or to include in an Act of Parliament a fuller description of the privilege.

4.1.1.2 Abuse of freedom of speech and limiting freedom of speech in Parliament.

Although freedom of speech in Parliament cannot be limited in the usual way (by common law or statutes), the Constitution subjects the freedom of speech in Parliament to the Rules and Orders. At present the Standing Rules for the National Assembly do this in two ways:

(i) by controlling the proceedings of the Assembly (limiting the time of debates, structuring the way in which different issues are to be dealt with etc); and

(ii) by specific provisions controlling the content of speech (interruptions are not permitted - rule 80, irrelevance or repetition may be stopped - rule 83, offensive or unbecoming language may not be used - rule 96).

These provisions have two main purposes. First they control debate, allowing the presiding officer to maintain order in the House and to ensure that debate appropriate to a democracy occurs. Secondly, they compensate to some extent for the absence of normal remedies for defamatory speech. Thus although a member cannot bring a legal action for defamation against another member, the presiding officer protects members by controlling the use of defamatory language.

One implication of this is that legislation outlawing or criminalising certain types of speech, such as hate speech, for instance, would not apply in Parliament. However, parliamentary rules and orders could impose similar limits on speech.

Cross-parliament sledging: It is considered unparliamentary to use abusive language or impute dishonesty to other members of the same House. In South African parliamentary practice this does not extend to members of other legislatures. Abusing members of other legislatures is known as 'cross-parliament sledging' and can become particularly problematic during elections if national and subnational elections are not synchronised.

As far as we can ascertain, most jurisdictions do not regulate this matter. However, Standing Order 193 of the Australian Senate prohibits Senators from making allegations about members of State and territory parliaments as well as ... members of the Commonwealth House of Representatives. Odgers comments that this order reflects the 'need for mutual respect between ... the Commonwealth and state governments'. In South Africa, a rule such as this would be consonant with our constitutional commitment to co-operative government.

Parliament, cases and judges

Two rules regulate discussion of matters relating to courts in Parliament, the so-called sub judice rule which disallows discussion of matters in which a judicial decision is pending and a rule which prohibits discussion of judicial conduct except by means of a motion demanding dismissal of the judge.

National Assembly rule 100 and NCOP rule 44 contain the so-called sub judice rule. Thus the NCOP rule states: 'No delegate may reflect on the merits of any matter on which a judicial decision is pending.'

The basis of the rule is two-fold: first that cases should not be prejudiced by their discussion in Parliament and, secondly, that the independence of the judiciary should be maintained and the separation of powers between Parliament and the judiciary respected.

This provision is not uncontroversial. The Standing Rules of the Gauteng Provincial Legislature (Version 3, Revision 10, 1998) contain a revised version of the rule: 'In the interests of preserving the rights of litigants to a fair trial, members shall refrain from comment upon matters pending before the courts, which actually interfere with the proper administration of justice.'

In reconsidering the rule consideration needs to be given to the fact that Parliament itself may be a party to court proceedings (as in the present De Lille case) and that in such circumstances prohibiting all discussion of the matter is inappropriate.

Reflections on the holders of an office whose removal is dependent on a decision of the House: National Assembly rule 99 disallows any reflection on the 'competence or honour' of anyone (including judges) whose removal from office is dependent on a resolution of the house unless such comments are made 'upon a substantive motion alleging fact which, if true, would in the opinion of the Speaker prima facie warrant such a decision [ie removal]'. This rule serves a number of functions. It protects the independence and dignity of holders of certain offices and ensures that, if a substantive motion for removal is introduced, challenges to the fairness of the procedure cannot be based on the fact that views were aired on the matter before.

The rule that judicial conduct may not be discussed has been criticised by Gilbert Marcus who argues that it is too restrictive.

The rule carries with it the concern that Parliament's oversight role may be compromised. For instance, the Human Rights Commission, Pubic Protector, Auditor-General and other chapter 9 institutions report to Parliament. In debating those reports, parliamentary committees may wish to comment on the quality of the report without intending to suggest removal of the officer concerned.

Some of the concern raised in connection with the Rule, however, appears to be caused by the range of different officials who are subject to removal from office by Parliament. The function should be reserved for those cases in which the threat of removal by the executive would undermine the particular official's role.

Defamation of outsiders

Although freedom of speech in Parliament is widely accepted to be necessary to protect democracy, it carries costs for ordinary people because it deprives them of their right to sue members for defamatory statements made in Parliament. In Australia a number of legislatures, including the Senate, have responded to this concern by providing an opportunity to people who have been adversely referred to have a response recorded in Hansard.

The Australian Senate procedure for this is that an aggrieved person must make a submission to the President of the Senate requesting that a response be published. The Privileges Committee considers this request but, in doing so, may not inquire into the truth or merits of either the original statement or the response. According to Odgers, provided that the response is not offensive and meets certain other criteria, it may be incorporated into Hansard or ordered to be published.

In commenting on the procedure, Odgers writes:

This resolution was opposed in the Senate and was agreed to only after a division, with cross-party voting by the senators. The main grounds of the opposition were that persons referred to in the Senate had the normal political avenues open to them to respond, the suggested procedures could be over-used and the President [of the Senate] and the Privileges Committee could be unduly occupied by these submissions.

These criticisms have not be justified by experience so far, as several cases of such responses have been dealt with ... without the apprehended difficulties.

4.1.1.3 Waiving privilege

(a) May the privilege of freedom of speech and proceedings be waived in South Africa? In other words, can Parliament itself or an individual member permit parliamentary speech or proceedings to be questioned in a court? We have not found authority on this point and so assume that, following the Westminster approach, privilege may not be waived here.

(b) Should it be possible to waive privilege? This question has a number of facets. It has been argued in other jurisdictions that it should be possible to waive privilege (see Television New Zealand v Prebble (1993)3 NZLR 513 (CA) at 521 but see the contrary view at 535). Legislation has been passed in the UK to allow the waiver of privilege.

Comment: Prebble, Hamilton and the English Defamation Act

Two cases in the last 10 years have led to the argument that privilege should be waived in certain cases.

In Television New Zealand v Prebble which is described above Prebble, an MP and Minister, sued TVNZ for defamation as a result of allegations made in a news commentary programme. TVNZ claimed that it was not libel because the allegations were true and fair comment. To substantiate this argument, TVNZ relied on certain statements made and things done in Parliament. The court of first instance ruled that these matters could not be considered because they were covered by privilege. On appeal and again in the Judicial Committee of the Privy Council this decision was upheld.

The problem that this use of the privilege raises is that an MP (like Prebble) can bring an action for defamation against a newspaper or broadcaster (like TVNZ) but the newspaper or broadcaster may be unable to put up a proper defence because material that it relied on in putting together its report or programme is protected by privilege. In short, the exercise of the privilege prevents the newspaper or broadcaster from being able to defend itself properly.

In the New Zealand Court of Appeal this problem was resolved by finding that if the material covered by privilege is central to the defence the action should be stayed. This would protect the public's right to comment on and criticise the actions of MPs but it deprives MPs of libel actions in certain cases.

A question discussed in the Prebble case was whether privilege could be waived. If so, Prebble could have waived the privilege, and TVNZ would have been allowed to rely on the parliamentary proceedings in its defence. the NZ Privileges Committee has said that a waiver of privilege is incompatible with the privilege. When members speak in the legislature they need to be assured that they will be protected under all circumstances.

A similar situation in Britain led to a different result. The politician concerned (Neil Hamilton) was obliged to resign as Minister because of allegations against him in The Guardian (the 'cash for questions' affair). He sued the paper for libel. The paper responded by saying that parliamentary privilege prevented it from putting its defence properly. The court stayed the proceedings. At that time the Defamation Act was before Parliament. It was amended to permit an individual member to waive parliamentary privilege in defamation proceedings. (See English Defamation Act 1996 section 13.) This meant that Hamilton could continue with his action against The Guardian. However, he chose not to.

These cases and the English response to them raise a number of issues. The argument in favour of the English amendment was -

• The traditional operation of privilege left MPs who were defamed unable to clear their names.

Arguments against the amendment and for the position that the privilege could not be waived were -

• The privilege is a collective privilege of the House (or Parliament) and is not susceptible to waiver by an individual member.
• MPs can waive privilege in cases in which it suits them but accept its protection in other cases - thus the amendment allows arbitrariness.
• Members of public defamed in parliamentary proceedings are not able to 'clear their names'.
• MPs will find themselves under pressure to waive the right and knowledge of such potential pressure will, in turn, have a 'chilling' effect on freedom of speech in the House. In other words it will act as a restraint on members.
• It will interfere with the freedom of speech of the media as the press and broadcasters will not know in advance whether, or on what basis, the privilege will be waived.

Would it be constitutional to waive privilege in South Africa?

This question needs to be divided into two parts. First, the legality of waiver of any privilege provided for in legislation rather than the Constitution would depend on the wording of the legislation and its intention. Express provision for waiver could be made. Secondly, the waiver of constitutionally granted privilege (the privilege of freedom of speech) will depend on our understanding of the purpose of protecting the privilege in the Constitution. A court is likely to decide that, although it is granted to individuals, as its purpose is to protect democratic processes, individual members cannot waive it. It could perhaps be argued that waiver agreed to by the house and the individual concerned should be permissible. This argument is not likely to succeed. This conclusion is backed by the fact that as far as we are aware there is only one precedent internationally for waiver of privilege (contained in the British Defamation Act).

Recommendation: Waiver of the privilege of freedom of speech should not be permitted because the function of the privilege is to protect open debate in the house. If waiver of the privilege is desired it should be provided for in legislation.

4.1.1.4 Publication of parliamentary proceedings

Three specific issues arise here:

(i) the publication of parliamentary proceedings, reports etc;

(ii) reporting on parliamentary proceedings; and

(iii) broadcasting of parliamentary proceedings.

(i) The publication of parliamentary proceedings, reports etc

Parliament controls the official publication of its proceedings. This privilege, which is generally regarded as an aspect of the privilege of free speech, is protected in section 29 of the Powers and Privileges of Parliament Act.

Section 29 of the Act specifically covers the publication of 'any report, paper, minutes or minutes of proceedings' under the authority of Parliament (that is 'a House, the Houses, any committee or the Speaker'). It stipulates that any court proceedings 'instituted on account of or in respect of the publication' of such material must be stayed if the Speaker or Secretary of Parliament certifies that the material was published under the authority of Parliament.

In addition the Act provides in section 28 that it is an offence -

• to print something claiming that it has been printed under the authority of Parliament when it has not been printed under that authority; and
• to tender in evidence a document claiming that it has been printed under the authority of Parliament when one knows that it has not been printed under the authority of Parliament.

This provision accords with the situation in other jurisdictions.

Recommendation: The provisions of the Powers and Privileges of Parliament Act should be retained.

(ii) Reporting on parliamentary proceedings.

Reporting on parliamentary proceedings is, generally speaking, regulated by the common law. There is a common-law right to publish reports (both in written form - say in the press - and orally - eg on TV or radio) on the proceedings of Parliament. Such reports are not protected absolutely as speech in Parliament is. They receive qualified protection. In legal terms they are subject to 'qualified privilege'. This means that a fair and substantially accurate report of parliamentary proceedings cannot form the basis of a successful claim for damages for defamation unless the person claiming to have been defamed can establish that the report was actuated by malice.

Section 30 of the Powers and Privileges of Parliament Act extends the common-law protection of reporting on proceedings in Parliament to the publication of extracts from or abstracts of authorised parliamentary publications. It stipulates, in effect, that a person cannot be successfully taken to court for publishing a defamatory statement, for example, if the case is based on the publication of such an abstract or extract provided that the publication was bona fide and without malice.

Recommendation: The common law protecting reporting on parliamentary proceedings will develop in line with the Constitution. A new Powers and Privileges Act need not deal with the matter but should retain the protection of parliamentary reports presently found in section 30.

(iii) Broadcasting and electronic reporting

Broadcasting (by radio or TV) and reporting electronically (on the Web, for instance) are forms of publication and section 29 is probably broad enough to cover broadcasting of parliamentary proceedings under the authority of Parliament and the reporting of proceedings electronically. However, the section was clearly not drafted with this in mind and new legislation should deal explicitly with these matters.

Members are, of course, protected from action by the privilege of freedom of speech in Parliament. The question is whether the broadcasters (or electronic reporters) will be protected. At present, to be protected by absolute privilege, broadcasting and electronic reporting must be 'under the authority of Parliament'. Whether or not this is the case will depend on the arrangements that have been made with the broadcasters and reporters. If it is not 'under the authority' of Parliament, the broadcaster or other reporter will have to rely on the common-law defence of qualified privilege in cases of defamation and will usually be adequately protected. They will, however, have no protection against criminal charges. For instance, section 29 of the Films and Publications Act makes it an offence to broadcast a film which amounts to propaganda for war. Legislation criminalising racist speech may also threaten a broadcaster or the provider of electronic reports.

Broadcasting and electronic reporting could be protected in the same way as other reports of parliamentary proceedings. This would mean that continuous live broadcasts would be absolutely privileged while occasional broadcast reports would be granted qualified privilege (in other words they would be privileged if they are fair and accurate and not malicious). Similar provisions could apply to information on the Internet.

In legislating on broadcasts of parliamentary proceedings consideration needs to be given to comments picked up in a broadcast which would not normally be considered to fall under privileged 'proceedings in Parliament', for instance, a casual conversation between members inadvertently included in a live broadcast.

Recommendation: Broadcasting should be expressly dealt with. Broadcasters should be given absolute privilege for all live and continuous broadcasts of proceedings in Parliament. This should be dealt with expressly in legislation. Broadcast reports of parliamentary proceedings, like their written counterparts, should be given qualified privilege. Qualified privilege would also be appropriate to protect inadvertent reporting of speech in Parliament that is not technically part of parliamentary proceedings.

Special provisions should also cover electronic media. They should, as far as possible, be consistent with those applying to other reporting.

4.1.2 The right to control internal arrangements

The right to control its internal arrangements is sometimes considered part of Parliament's privilege of freedom of speech and proceedings. It protects Parliament's independence from the executive and judiciary. In Britain this extends to a right to determine how legislation is passed. In case decided in South Africa under the 1983 Constitution, the English authorities were followed. The court held that it had no power to inquire into the validity of, or compliance with, Parliament's internal procedures. The rule goes further as it has been held that even where a statute prescribes parliamentary procedure the procedural steps specified are not mandatory.

This right is limited in many countries by constitutions which specify the procedure for passing legislation. In South Africa the Constitution imposes additional limits on the right to control internal arrangements. As discussed in chapter 3, it has been limited by the constitutional requirement that most parliamentary proceedings should take place in public. Requirements relating to committees (sections 45 and 57) impose further limits. The right has also been circumscribed by the constitutional direction that public participation in parliamentary proceedings should be facilitated (sections 59 and 72). The implications of this provision need further consideration. It is unlikely that it limits Parliament's control over its internal arrangements and proceedings or that it gives the public a right to demand participation. This conclusion can be drawn from the fact that structures of democratic government in South Africa are essentially representative and not participatory in nature.

The effect of a Constitution on the right of Parliament to regulate its own proceedings was considered by the Privy Council in two cases which arose in Tonga. The Council concluded in both that it had jurisdiction over matters dealt with in the Constitution but not over other matters.

In the first case it was argued that members had received certain allowances to which they were not entitled. The second case involved a challenge to legislation which had been pushed through the Assembly without any opportunity for debate and probably in a way that was inconsistent with the standing orders. Neither case involved a breach of a constitutional provision and in both the Council said that the matter concerned the legislature's internal proceedings and that courts did not have jurisdiction.

The breadth of the provisions in the South African Constitution relating to Parliament and provincial legislatures may mean that a different outcome would have been reached in a South African court. For instance, section 57(2)(b) requires that rules and order must provide for 'the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy'. A flagrant breach of standing orders would render legislation unconstitutional for infringement of this provision.

Recommendation: None. The matter of 'control over internal proceedings' is dealt with in the Constitution and will be adequately covered if freedom of parliamentary proceedings is protected as suggested above.

4.1.3 Freedom from arrest or molestation

This ancient privilege apparently originated in the English King's protection of his servants. Writing in 1955, Kilpin stated that it had been narrowed down to three established immunities. One, exemption from serving on a jury no longer concerns us. The second is exemption from attending civil cases, whether as a witness or defendant, The third is exemption from attending another House without permission of the House of which the person concerned is a member.

4.1.3.1 Exemption from civil cases

This privilege is contained in section 7 of the Powers and Privileges of Parliament Act. It provides two things:

(i) a member or officer of Parliament 'while in attendance on Parliament' is exempted from participating in a civil case in a court sitting outside the seat of Parliament (subsection (1)); and

(ii) no civil proceedings in which a member or officer is a defendant may be brought to trial in a place outside the seat of Parliament while that member or officer is in attendance on Parliament (subsection (2)).

A certificate provided by the Speaker, simply stating that Parliament is sitting, puts the exemption into effect.

Section 7 covers only proceedings in which a member or officer is required to pariticpate. It does not exempt a member from an application for summary judgment.

The retention of these provisions needs to be reconsidered for the following reasons:

(i) Parliament now sits all year; and

(ii) The ease of travel makes attendance at a court in another part of the country less difficult than it was when this privilege was established.

In addition, the privilege is extended to officers of Parliament. In terms of the Act, 'officer' includes anyone employed by Parliament and, given the size of the establishment in the present Parliament, this seems to grant exemption to an unnecessarily large group of people.

Recommendation: The privilege could be abolished entirely or limited so that members and officers are exempt from proceedings only when their presence at Parliament is essential. In the latter case the Speaker could determine whether or not a person's presence in Parliament is essential.

4.1.3.2 Exemption from attending before another House

This privilege is contained in section 6 of the Powers and Privileges of Parliament Act which stipulates that a member may 'attend before' another house only on request of that house and with permission of the Speaker of the house of which the person concerned is a member. The term 'attending before' means that a member of one house may not be required to address or give evidence before another house

Relationship of national Parliament and members of provincial legislatures: Consideration needs to be given to whether this provision should apply to members of provincial legislatures summoned to give evidence in the national Parliament.

The NCOP has an oversight role over certain provincial activities. In fulfilling this role it may be necessary to request the relevant MEC to appear before an NCOP committee. For instance, under section 139 the NCOP must approve a province's assumption of responsibility for a municipality's affairs. To determine whether the assumption of responsibility is reasonable and in reviewing the intervention, it may be appropriate for the NCOP to call the MEC responsible for local government as a witness. Similarly, the NCOP and National Assembly have an oversight role to play when, in terms of section 216(2), the national treasury stops funds to a province. Again, it would be appropriate to be able to examine the relevant MEC in Parliament.

Whether the NCOP and the National Assembly should have a general right to examine members of provincial legislatures without the permission of the provincial Speaker is a more difficult question. In sections 56 and 69 the Constitution gives the National Assembly and the NCOP respectively the right to summon any person to give evidence. However, like their counterpart relating to provincial legislatures (section 114), these sections need to be read in context. They give the two houses of Parliament the power to fulfil their constitutional role. They cannot be used in a way that offends other constitutional provisions, such as those relating to co-operative government. Most importantly, the Constitution assumes that provincial politicians will be accountable to provincial legislatures and the provincial electorate. The right to summons any person could not be used to move the provincial accountability function to the national Parliament.

The national houses of Parliament thus would be entitled to summons provincial parliamentarians in situations in which the provisions of chapter three relating to co-operative government are not infringed. In most cases political relations between legislatures would settle these matters.

Recommendation: Legislation should retain the privilege of exemption from attending before another house for national politicians but should not extend it to situations where a provincial politician is summonsed to appear before the National Assembly or NCOP in a circumstances which satisfy the provisions of chapter 3. Provincial politicians should be exempted from appearing before another provincial legislature without the permission of their speaker.

4.1.4 CRIMINAL ACTS IN PARLIAMENT, SERVING SUMMONS AND DETERMINING MEMBERSHIP: DOES PRIVILEGE APPLY?

4.1.4.1 Criminal acts in the precincts of Parliament

Criminal acts committed within the precincts of Parliament are not immune from criminal prosecution unless they are considered part of parliamentary proceedings.

Criminal words spoken in a speech in the house, for instance, cannot be prosecuted in the ordinary courts because they would be part of the proceedings. However, it is very unlikely that a criminal act would be protected. It would be protected only if it could be shown to be part of the proceedings. May comments that 'it would be hard to show that a criminal act committed in the House by an individual member was part of the proceedings of the House'.

4.1.4.2 Serving summons

The service of criminal or civil process within the precints of Parliament while either of the Houses is sitting without obtaining the leave of the House is contempt. This contempt has been recognised in England for some time. Since the Powers and Privileges of Parliament Act incorporates privileges that applied in the House of Commons at Union in 1909, this privilege is part of our law.

Recommendation: If we wish to retain this privilege, it should be included in legislation.

4.1.4.3 Determining membership

Many legislatures originally claimed and exercised the power to determine their membership. Accordingly, it was the legislature which resolved electoral disputes. Most parliaments have now relinquished this power to the ordinarly courts.

Results of an election: In South Africa, the Electoral Act (Act. 73 of 1998) makes the Electoral Commission responsible for the determination of election results for the National Assembly and the provincial legislatures (section 57). The Electoral Commission Act (Act 51 of 1996) provides for the establishment of an Electoral Court. It has the power to review any decision of the Commission relating to an electoral matter, and to hear appeals against a decision of the Commission in certain circumstances.

Eligibility questions between elections: A member may become ineligible after he or she has been elected. This may occur if the member is expelled from his or her party or if one or other of the disqualifications listed in section 47(1) of the Constitution comes into play.

A dispute over such an issue must finally be resolved by the Constitution Court which has jurisdiction in all constitutional matters. In the past, questions concerning eligibility have been dealt with by the courts (see, for instance, decisions concerning whether or not a member holds an office of profit under the government). Parliament may, in any event be loath to become involved in such matters. They are likely to be messy and, particularly when they relate to loss of membership as a result of expulsion from the member's party, highly political. It seems appropriate that the courts rather than Parliament should decide such matters.

4.2 CODIFYING PRIVILEGE

Privilege in South Africa is partially codified. As described above, the Constitution expressly protects certain of the traditional legislative privileges. In addition, the 1963 Powers and Privileges of Parliament Act is still in operation and it deals extensively with parliamentary privilege, spelling out the most significant ones. But the Act also grants Parliament, members, and officers of Parliament any privileges, immunities and powers that existed at the time the 1961 Constitution was promulgated (s 36).

Can all privileges be specified or should we retain a residual category as is done in section 36 of the 1963 Act?

The Constitution enshrines the privilege of freedom of speech and protects Parliament's power to control its own procedures. It also provides that additional privileges may be provided for in national legislation. National legislation could do one of two things. It could provide a closed list of privileges. This would mean that only those privileges listed in the legislation and the Constitution would exist. Alternatively it could follow the example of the Powers and Privileges of Parliament Act. This Act lists certain privileges (the most important ones) but also incorporates other privileges into our law by stipulating that any privileges that existed in the House of Commons in 1909 are part of our law. To ascertain these privileges one needs to consult the parliamentary law of the time.

New legislation should attempt to provide a comprehensive list of privileges. There are a number of reasons why this approach would be better than the present approach.

First, every privilege granted to Parliament involves a limit of an ordinary person's right (such as the right to sue for defamation, the right to summons a member to give evidence in a civil matter etc). To have rights such as these limited by obscure provisions of the common law is undesirable.

Secondly, over the past 50 years or so a limited number of well-know privileges have been relied upon. These are presently incorporated in the Powers and Privileges of Parliament Act. The commonly expressed fear that a statute may omit an important privilege is unfounded. The omission from legislation of a privilege that has not been used for many years and has been forgotten cannot create significant problem for Parliament. Legislation can also always be amended to add forgotten privileges.

Thirdly, using a 'savings provision' such as section 36 of the Powers and Privileges of Parliament Act may not meet the Constitution's requirement that further privileges should be 'prescribed' in national legislation (see section 58(2)). The word 'prescribe' suggests that a degree of definition is required that is not provided by a reference to our common law. (A similar point is being argued by the respondent in the De Lille appeal.)

CHAPTER 5

CONTEMPT OF PARLIAMENT

This chapter deals with contempt of Parliament. A contempt of Parliament is an act which impedes the functioning of Parliament. Parliament's power to define and punish contempts is often described as a privilege of Parliament. Although, loosely speaking, this is a privilege it is probably more accurate to distinguish between the privileges of Parliament which are rights that offer Parliament and parliamentarians immunities from the normal operation of the law, on the one hand, and, on the other, the powers of Parliament which include the right to define and punish contempts. In South Africa powers relating to contempt of Parliament are granted to Parliament in the Powers and Privileges of Parliament Act.

South African law deals with contempt of Parliament in an ad hoc way. The Powers and Privileges of Parliament Act contains a list of specific actions which would constitute contempt of Parliament and Parliament itself is given the authority in the Act to define further contempts. This Chapter describes those acts which constitute contempt of Parliament at present. It then suggests a revision of the law of contempt to make it clearer and less fragmented.

Chapter 6 deals with the question of punishing contempt of Parliament.

5.1 WHAT ACTS OR OMISSIONS CONSTITUTE CONTEMPT OF PARLIAMENT? THE PRESENT POSITION

Most people understand contempt of Parliament to refer broadly to anything that impedes Parliament in its functioning. In practice, however, specific 'contempts' have been identified and Parliament has been given the power to identify further contempts in its Rules.

Contempts of Parliament have four sources in South Africa:

(i) Certain contempts are specifically defined in the Powers and Privileges of Parliament Act

(ii) The Rules and Orders of Parliament

(iii) The common law

(iv) Breach of privilege constitutes contempt

(i) The Powers and Privileges of Parliament Act, section 10(3) sets out a list of acts that constitute contempt. They are:

(a) disobedience to any order made by a House or any committee duly authorised thereto, for the attendance before or the production of any paper, book, record or document to that House or committee, except where the person concerned has been excused from such attendance or production in terms of section 20;

(b) refusing to be examined before, or to answer any lawful and relevant question put by, a House or any committee, unless such refusal has been excused in terms of section 20;

(c) wilful failure or refusal to obey any rule, order or resolution of a House or the Houses;

(d) offering to or acceptance by any member or officer of Parliament of a bribe to influence him in his conduct as such member or officer, or offering to or acceptance by any member or officer of Parliament of any fee, compensation, gift or reward for or in respect of the promotion of or opposition to any bill, resolution, matter, rule or thing submitted or proposed to be submitted to Parliament or any committee;

(e) assaulting, obstructing or insulting any member proceeding to or going from Parliament, or on account of his conduct in Parliament, or endeavouring to compel any member by force, insult or menace to declare himself in favour of or against any proposition or matter depending or expected to be brought before Parliament;

(f) assault upon, interference with or resistance to an officer of Parliament in the execution of his duty or while proceeding to or going from Parliament in the course of or in connection with his official duties;

(g) sending any threatening letter to a member, or challenging him to fight, on account of his conduct in Parliament;

(h) while Parliament is sitting, creating or joining in any disturbance in Parliament or in the vicinity of Parliament, whereby the proceedings of Parliament are or are likely to be interrupted;

(i) tampering with, deterring, threatening, beguiling or in any way unduly influencing any witness in regard to evidence to be given by him before a House or any committee;

(j) presenting to a House or any committee any false, untrue, fabricated or falsified document with intent to deceive that House or committee;

(k) prevarication or other misconduct as a witness before a House or any committee; and

(l) the publication of any false or scandalous libel on any member touching his conduct as a member.

Section 11 adds to the list of contempts a member voting on or discussing a matter in which he or she has a direct pecuniary interest. (An exception is made of votes and discussions concerning members' remuneration and of matters in which the member's interest is held 'in common with the public generally or with any class or section thereof' (section 11(3)).)

(ii) The rules and orders are relevant for two reasons. First, section 10(3)(c) of the Powers and Privileges of Parliament Act makes a wilful breach of a rule or order contempt of Parliament and, secondly, the Act permits Parliament to set out further contempts in its Rules and Orders. Although the power given to Parliament to create new contempts in the Rules may seem very broad, it is in fact not so. As indicated above, a contempt of Parliament is an act which impedes Parliament in the exercise of its functions. Parliament's power to create new contempts is limited by this.

(iii) The common law (in this case the law applying in the House of Commons at Union in 1909) is expressly retained as part of our law through section 36 of the Powers and Privileges of Parliament Act. However, an examination of the list of contempts in Kilpin suggests that the only common-law contempt not included in either the Act or the Rules is that of 'offering indignities to the character or proceedings of Parliament' - the contempt that is commonly known of as 'defamatory contempt'.

(iv) Finally, a breach of a parliamentary privilege is contempt of Parliament. For example, suing a member of Parliament for defamation for something said in parliamentary proceedings constitutes contempt.

5.2. REFORMING THE LAW OF CONTEMPT OF PARLIAMENT

In some jurisdictions it has been argued that the power to define and punish contempts is an inherent power of a legislature. In others it has been given a constitutional base. In South Africa it may be based in the constitutional provisions which give the houses of the national Parliament and provincial legislatures the right to control their internal arrangements or it may depend on statute and common law. Ideally the lack of clarity in this area will be resolved by legislation. This Report discusses three specific issues in this regard:

(i) Should contempt of Parliament be codified?

(ii) Should the existing contempts be retained, added to or amended? And, in particular, how should 'defamatory contempts' be treated?

(iii) If Parliament retains its power to create contempts in its Rules, how should such decisions be publicised?

In proposing answers to these questions, the Report suggests that although contempt should not be codified in a technical way, it should be given a clear statutory basis. It then suggests certain amendments to the existing menu of contempts and raises questions about the most appropriate way of dealing with defamatory contempt. Finally, it recommends that, if Parliament is to retain a right to create contempts that apply to non-members in its Rules, a procedure should be devised to ensure that the public is aware of the law.

5.2.1 Should contempt of parliament be codified?

As the list of sources of contempt of Parliament given above shows, contempt of Parliament is almost fully codified. Nevertheless, it remains open-ended. This is because, although the Powers and Privileges of Parliament Act sets out the most significant forms of contempt of Parliament, it includes as an offence subject to the provisions of the Act 'any contempt from time to time set forth, and declared to be such, in the standing orders' (section 10(3)(m)) and section 36 incorporates in our law the law of the House of Commons in 1909.

In a number of jurisdictions the breadth and uncertainty of similar powers have raised the question whether to codify the law of contempt of Parliament.

In the United Kingdom the Select Committee on Parliamentary Privilege (1966-67) came to the conclusion that:

'The very definition of "contempt"… clearly indicates that new forms of obstruction, new functions and new duties may all contribute to new forms of contempt. They are convinced therefore that the House ought not to attempt by codification to inhibit its powers.'

The Australian Joint Select Committee on Parliamentary Privilege (1984) canvassed the established contempts and went on to state that:

'But while it is easy enough to say that these matters may constitute contempts of Parliament, and while it may be possible to state with some confidence other offences which should also fall within the ambit of Parliament's contempt power, to provide an exhaustive definition of what should constitute contempt or what may constitute contempt is another matter. In the search for precision the necessary reach of the contempt power may be unintentionally narrowed, offences may be expressed too rigidly, flexibility may be lost, and matters which should be included may unintentionally be excluded. In short, we think that the wiser course is not to seek to define exhaustively the contempt power.'

The 1989 South African Report likewise emphasised that the power to punish contempts must be wide and flexible (para 3.6.8). It recommended that the statutory codification of contempt of Parliament should not be attempted (para 3.6.10). The Report quotes extensively from the Australian Report of 1984 but it appears not to have considered subsequent Australian legislation.

Some time after their Report was completed, the Australian Parliament passed a Parliamentary Privileges Act. While the Act does not formally codify contempts, and retains an incorporation section very similar to section 36 of our Act thus protecting the common law of contempt, it sets out the essential elements of an offence against a House, giving what has been described as a statutory definition. Section 4 provides that:

'Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.'

 

The effect of this provision is that:

'it is no longer open to a House ... to treat any act as a contempt. The provision restricts the category of acts which may be treated as contempts, and it is subject to judicial interpretation. A person punished for contempt of Parliament could bring an action to establish that the conduct for which the person was punished did not fall within the statutory definition. This could lead to a court overturning a punishment imposed by a House for a contempt of Parliament.'

The definition maps out the parameters of what is otherwise a virtually unfettered power open to abuse, while retaining flexibility.

The arguments on either side of codification debate are clear. Against codifying contempt it is said that it is impossible to anticipate all forms of contempt and that flexibility is essential if Parliament is to protect its ability to fulfil its functions properly. The main counter-argument to the contention that contempt should be left uncodified is the fundamental legal principle that laws ought to be certain. This principle is now constitutionalized in South Africa in the protection of the rule of law in section 1 of the Constitution and in the Bill of Rights. In so far as contempt of Parliament is subject to penal jurisdiction concerns about the breadth and vagueness of the offence of contempt of Parliament are all the more cogent.

The Australian solution to the problem, which accommodates the most serious concerns on each side of the debate is a good one. It avoids the rigidity introduced by a full codification of the law but places limits on contempt.

 

Recommendation: South Africa should give contempt of Parliament a statutory base and end the reliance on the 19th century law of the House of Commons. It could do this is a number of ways:

(i) It could blend the present position (partial codification of contempt as in the Powers and Privileges of Parliament Act) with the Australian approach (general definition of contempt). To do this one would provide a general definition of contempt of Parliament in an Act together with a list of particular contempts. Parliament could retain its power to define new contempts in its Rules but any new contempt would have to fall within the general definition. This approach would place limits on the expansion of the offence contempt of Parliament as well as providing a clear indication of the main contempts.

The following definition of contempt which is drawn from the common law might be considered.

 

Contempt of Parliament consists in unlawfully and intentionally obstructing or impeding either House in the performance of its functions, or any member or officer of the House in the discharge of his or her duties.

 

This approach could be used in different ways and legislation would have to state whether the list of contempts -

• merely provides illustrations of what might constitute contempt under the general definition; or
• provides an exhaustive list of contempts. (In this case the general definition, as in the Australian case, would provide the limits within which the house may create new contempts.)

 

(ii) It could follow the Australian approach, by adopting a general definition in legislation, without including specific examples of contempt. Instead, each legislature could follow the example of the Australian Senate and publish a list of actions which it will consider to constitute contempt. The definition would be clear enough to guide the action of individual's and to provide the basis of a charge, if necessary.

(iii) The Sri Lankan approach could be adopted and contempts exhaustively listed in legislation. This would abolish Parliament's right to create contempts in the Rules and a statutory amendment would be required to amend the list.

 

5.2.2 Changes to the present contempts

 

Two changes should be considered:

(a) The most well-known common-law contempt is that of defaming Parliament or a member or officer of Parliament. This contempt should be reconsidered.

(b) The statutory list of contempts sould be reorganised so that related issues are treated together and certain amendments to the list should be considered.

 

5.2.2.1 Should defamatory contempt be retained in its present form?

 

In 1701 the House of Commons resolved that printing or publishing libels reflecting on the proceedings of the House or the conduct of its members is a 'high violation of the rights and privileges of the House'. This is the origin of the contemporary contempt of defamation of the legislature and its members. In South Africa, section 10 of the Powers and Privileges of Parliament Act states that the "publication of any false or scandalous libel on any member touching his conduct as a member" is an offence (section 10(3)(l)) . Reflections on the House itself, rather than individual members, constitute contempt under the common law.

The principle on which defamatory contempt is based is that 'such acts tend to obstruct the houses and their members in the performance of their functions by diminishing the respect due to them'. This concept of contempt allows Parliament to punish editors and journalists for infringing the dignity of Parliament or its members.

Defamatory contempt has been controversial in many jurisdictions. Following the recommendation of a joint select committee on parliamentary privilege, the 1987 Australian Parliamentary Privileges Act abolished contempt by defamation. In other countries the contempt remains but has been used with caution. Thus a 1964 report of the House of Commons Committee of Privileges states:

It seems ... particularly important that the Law of Parliamentary Privilege should not, except in the clearest case, be invoked so as to inhibit or discourage the formation and free expression of opinion outside the House by Members equally with other citizens in relation to the conduct of the affairs of the nation.

The Commons Committee pointed to the tension in enforcing the contempt - which protects Parliament - and respecting freedom of speech - which is essential to democracy. This tension is as acute, if not more so, in a young democracy like South Africa. On the one hand, new institutions - like our national and provincial legislatures - are especially vulnerable to criticism. They do not have a long tradition to protect them and it will take time for them to be respected even when they make unpopular decisions. The formal protection given in the Constitution to the judiciary and Chapter 9 institutions is not appropriate for legislatures because they are necessarily in the middle of the political fray and are not intended to be 'independent and impartial' in the way that, for instance, the Auditor-General and Courts are. For these reasons, it may be argued that the limited protection given in the form of a right to prosecute defamatory contempt is necessary.

On the other hand, newly-won political rights need to be protected against restrictions, especially in a country with a long tradition of suppression of political speech. Robust and trenchant political criticism is essential, lest public debate be "chilled". Members of Parliament are shielded by the privilege of freedom of speech in Parliament, and it appears anomalous that public criticism of Parliament should be at the mercy of a discretionary contempt power wielded by Parliament.

 

The constitutional position

 

Freedom of speech is protected by the Constitution. However, the right to freedom of expression is not absolute. The right does not extend to: '(a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.' In addition, like all other rights in the bill of rights, the right of freedom of expression may be limited by law of general application where the limitation is reasonable and justifiable in an open and democratic society (section 36).

This raises the question of whether defamatory contempt will meet the test in the limitation clause. The form of contempt known as scandalising the court - where a publication violates the dignity, repute or authority of the court by unfairly or improperly criticising it in relation to certain proceedings or generally - serves as a useful comparator to assess the desirability and constitutionality of defamatory contempt of Parliament. In the USA and Canada contempt of court by scandalising the court has been held to be an unacceptable inroad into the right of freedom of expression. According to Milton the reasoning is equally valid under our Constitution and he goes on to say that the concept of scandalising the court is vague and constitutes an unreasonable and unjustifiable limitation upon freedom of expression. In light of the similarity between the concepts of scandalising the court and defamation of Parliament, the reasoning against scandalising the court applies also to defamation of Parliament in its present form. It may well be considered to be an unreasonable and unjustifiable limitation of freedom of speech.

This point is strengthened by the fact that, when the House or members feel aggrieved at the coverage by the press or the media, they have the option of complaining to the Press Council or the Broadcasting Complaints Commission. Members who believe that they have been defamed can bring an action for defamation or lay a charge of crimen injuria.

The importance accorded to the exercise by the media of the right to freedom of expression was emphasised in a recent Supreme Court of Appeal case. The court developed the common law of defamation significantly by holding that a showing of reasonable care in the making of defamatory statements could serve as a defence by excluding the element of unlawfulness. The media had in the past been strictly liable for defamatory statements. This case illustrates the weight assigned to freedom of speech in the area of defamation law.

This does not mean that no defamation of Parliament can be punished as contempt. But , if the defamatory contempts are to be retained, consideration should be given to two issues: their definition and procedures for punishing them.

In constructing a definition of defamatory contempt that meets the requirements of the Constitution the purpose of criminalising such speech, which is to protect the proper functioning of Parliament, would be the guide. The exact definition would be influenced both by decisions of our courts on the meaning of freedom of expression in South African law and by the approach that is taken to contempt of Parliament as a whole. (For instance, if contempt is defined broadly in legislation certain cases of defamatory contempt would fall under that definition and may not need further definition. If a list of contempts is given, the defamatory contempts should be included.)

In determining procedures for finding a person guilty of defamatory contempt and imposing a penalty, the Sri Lankan approach should be considered. This is dealt with fully in Chapter 6. In brief, however, the Sri Lankan Parliament (Powers and Privileges) Act permits certain contempts to be adjudicated only by the courts and not by Parliament. In the case of defamatory contempt, adjudication by the courts ensures that Parliament cannot abuse (or be perceived to abuse) its powers by oppressing speech that is critical of Parliament or its members.

 

Recommendations: Defamatory contempt might be abolished entirely (Australian model). Alternatively it should be defined in such a way that it could not be challenged for vagueness and unreasonableness, and enforcement of the offence should meet constitutional criteria.

The statutory of scandalous libel should be reconceptualised if it is retained.

 

Comparative law on the punishment of defamatory contempts.

• Germany

 

The German Bundestag itself has no contempt jurisdiction whatsoever. However, according to section 187a of the Criminal Code it is a criminal offence to defame in public persons who are active in the political life of the nation. This section includes in its ambit the defamation and smearing of members of Parliament. Furthermore, the Code provides that defamation or insult of the Federal and Laender Parliaments is a criminal offence which may be prosecuted if the body concerned so decides and accordingly empowers the prosecuting authorities.

• Australia

In the Parliaments of New South Wales (para 6.15 of the Report); Queensland, and Tasmania defamatory statements or conduct do not constitute contempt of Parliament. Under Western Australian privileges legislation the publication of false and scandalous libels of any member of Parliament touching on his or her conduct as a member, is a misdemeanour, prosecution of which may be directed by the House.

• United States

The US Supreme Court has denied the power of Congress to punish for defamatory contempts.

• Zambia

 

The exercise of the contempt power to punish defamatory contempts can lead to lengthy legal wrangles which do not do the dignity and authority of Parliament any credit. Recent events relating to committal of journalists in Zambia illustrate this: Three journalists who had criticised the government following the striking down by the Supreme Court of Zambia of sections of the controversial Public Order Act were committed for contempt with an indefinite remand. The complaint had been raised in the House and referred to the Standing Orders Committee which found that they ought to be committed and fined. At no stage were the journalists granted a hearing. They brought a writ of habeas corpus in the High Court. The court held that while Parliament had the power to punish for contempt in the form of incarceration, it could not remand the journalists in custody indefinitely. The writ was therefore granted. On the whole the judgment is not very clear on many of the issues but the court does emphasise that it possesses jurisdiction over major parliamentary actions, especially those that affect persons from outside Parliament. In addition, it indicates that the proper procedures must be adhered to prior to committal.

• Zimbabwe

Defamatory contempts by members as well as outsiders are punished.

• India

 

In India it is contempt `to make speeches, or to print or publish any libels reflecting on the character of the House or its committees, or on any member of the House for or relating to his character or conduct as a member of Parliament'. This is a fairly broad power (for instance a libel on a member of Parliament may amount to contempt even if it would not constitute libel under the common law). Nevertheless, as in other countries, the house will not take action on every statement which may technically be considered contemptuous. In the words of Kashyap, writing on Indian parliamentary procedure, 'it is considered inconsistent with the dignity of the House to take serious notice or action in the case of every defamatory statement which may technically constitute a breach of privilege'.

5.2.2.2 Revision of the list of contempts contained in the Powers and Privileges of Parliament Act

If new legislation includes a list of contempts, the opportunity might be taken to revise the list of contempts contained in the Act.

 

(a) Classification of contempts

The Australian Report divides the contempts that it lists into five groups:

• Independence of members (under which is included interference with the Parliament, improper influence of members, molestation of members, and improper contractual arrangements).
• Orders of the House and committees (under which is included disobedience of orders, obstruction of orders, interference with witnesses, molestation of witnesses, and offences before committees)
• Unauthorised publication of material and false reports of proceedings (under which is included publication of in camera evidence, premature publication of reports, and false reports of proceedings).
• Protection of the Houses from physical disturbance (under which is included both direct disturbance and indirect disruption such as the service of writs)
• Attempts and conspiracies to commit a contempt

South African legislation would be more accessible if the contempts it lists were organised along similar lines.

(b) Addition or amendment of contempts

 

(i) Molestation of witness:

At present this is covered by section 10(3)(i) of the Powers and Privileges of Parliament Act which covers any form of undue influence of a witness due to give evidence. The wording covers only action that occurs before evidence is given and does not cover action that occurs after evidence is given. In this regard the Australian Committee proposed:

A person shall not inflict any penalty or injury upon or deprive of any benefit another person on account of any evidence given or to be given before either House or a committee (Recommendation 28).

According to Kilpin, the 1911 Act was wider than the present one. Section 23 made it an offence to prosecute, threaten or molest witnesses for what they have said in evidence. Kilpin also refers to a 1894 case in which the Postmaster-General attempted to intimidate a witness.

 

(ii) Publication of false reports:

 

It appears that the wilful publication of a false or misleading report of proceedings of Parliament is not contempt in South Africa. It should be included in any list of contempts. According to Kilpin, this contempt was included in the 1911 Act (section 28). It is not clear why it was omitted from the 1963 Act.

 

(iii) Precincts of Parliament

 

At present there is no legislation defining the precincts of Parliament. Such a definition would prove useful with regard to the application of the Act:

• Section 10(3)(h) makes it an offence to create or join any disturbance in Parliament or in the vicinity of Parliament; and
• section 14 provides that a person creating or joining a disturbance in Parliament during its actual sitting may be arrested without warrant.

A user-friendly statute would include a diagram showing the precincts.

It should also be noted that, in recommending that legislation be passed defining the precincts of the Commonwealth Parliament, the Australian Committee suggested that Parliament should be able to amend the definition of precincts of Parliament without a statutory amendment. This consideration may be particularly important here where different buildings are used by Parliament at different times.

Section 34 of the Powers and Privileges of Parliament Act provides that when a committee so authorised performs functions beyond the seat of Parliament or while Parliament is prorogued, the provisions of the Act apply as if the premises in which the committee meets were within the precincts of Parliament, or as if Parliament were in session, as the case may be.

 

 

(iv) Conflict of interests

At present section 11 of the Powers and Privileges of Parliament Act covers possible conflicts of interests of members making it an offence 'to vote upon or take part in the discussion of any matter in which he [or she] has a direct pecuniary interest'. This matter is now also covered by the parliamentary Code of Conduct in regard to Members' Financial Interests. The Code gives the joint Committee on Members' Interests the authority to investigate alleged breaches of the Code and to recommend the imposition of sanctions (including fines or suspension) for a breach of the Code.

The Code prohibits members from participating in discussion of and voting on a matter in which he or she has a 'direct and specific pecuniary interest.

There is a clear overlap between the Powers and Privileges of Parliament Act provision and the Code although the Code has a wider ambit as it includes as registrable interests the assets of spouses, permanent companions and children.

 

Recommendation: A provision relating to conflicts of interest in a Powers and Privileges of Parliament Act must take the Code into account. In revising this area, consideration should be given to broadening the ambit of the statutory provision.

5.3 CREATING CONTEMPTS IN THE RULES

 

The Powers and Privileges of Parliament Act permits Parliament to create new contempts by setting them out in the standing orders of Parliament. This is a legitimate way of creating offences that apply to members and officers of Parliament but it is inappropriate to allow Parliament to create new offences that apply to everyone (and that may carry serious penalties) in what are primarily in-house rules.

It is a basic principle of criminal law, enshrined in the Constitution through its commitment to the rule of law, that law should be certain and ascertainable. In South Africa it is accepted that offences can be created by national legislation (Acts of Parliament and regulations promulgated at national level), provincial legislation (provincial acts and regulations) and municipal by-laws. Parliamentary standing orders or rules do not seem to be appropriately classified as part of national legislation.

Two distinct although related arguments support the position that Parliament should not be able to create new contempts that apply to 'strangers' as well as members in its rules: the rules are inaccessible, and rules cannot be classified as part of national legislation. In addition, it is unlikely that the rules can be said to constitute 'a law of general application'. This means that no new contempt that limits any right could be created in the rules.

Nevertheless, the same arguments that reject suggestions to codify contempt of Parliament support the idea that Parliament should be able to create new contempts in a way that is less cumbersome than passing an Act of Parliament. One solution to this problem would be to enable Parliament to pass resolutions or rules that have the same status as regulations. Such regulations could create new contempts (within the limits of the concept of contempt) and would be constitutional if they were promulgated properly.

 

CHAPTER 6

Parliament's power to punish CONTEMPT

 

Traditionally, Parliament itself has the power to punish contempts committed against it. This Chapter considers the circumstances under which this power can be exercised in a constitutional state based on freedom and equality. The adoption of a Constitution committed to open government and the protection of rights requires a reappraisal of the existing law relating to Parliament's power to punish contempt. One the one hand, the law of Parliament, with ancient roots, holds that the power of Parliament to punish contempt is the ultimate guarantee of Parliament's ability to fulfil its functions properly. The constitutional protection of Parliament's right to determine its internal affairs is acknowledgement of the importance of protecting parliamentary processes. In practice this has meant emphasising, on occasion, the political rights of Parliament above those of the citizen. On the other hand, the Constitution, including the Bill of Rights commits us to a respect for human rights and open and accountable government. The question is how to accommodate individual rights with the rights of Parliament.

 

This Chapter first describes the way in which contempt of Parliament is dealt with at present under the Powers and Privileges of Parliament Act and sets out alternative approaches adopted in other jurisdictions that might be considered here. These include retaining the power to punish contempt, transferring the power to punish to the courts as well as combinations of these approach. The Report recommends that a mixed system should be given serious consideration. One possibility is a system under which Parliament retains the right to punish contempt committed by its members and officials of Parliament while the courts are given jurisdiction over contempt committed by others. Another possible mixed system would give Parliament jurisdiction over specific forms of contempt but exclude the jurisdiction of Parliament over other, more serious, contempts.

Whatever system is adopted, Parliament will wish its procedures to comply with the dictates of natural justice. These standards are discussed in 6.2. Finally, the array of sanctions usually used for contempt is looked at. They include reprimands, fines and imprisonment and, for members, expulsion or suspension from Parliament.

6.1 COURTS AND PARLIAMENT: WHO SHOULD PUNISH CONTEMPT?

A series of English decisions made it clear that the courts would go a long way in respecting the powers and privileges of Parliament. The basic rule there is that while the courts will enquire into the existence of a privilege where it is raised, once it is found to exist the actual exercise of that privilege is not open to scrutiny by the courts in any manner whatsoever. This general doctrine was a consequence of the principle, based on the doctrine of the separation of powers, that courts would not question proceedings in Parliament and that, therefore, the procedure implemented by Parliament for dealing with cases of contempt and the sanctions applied could not be questioned.

Internationally the question of offences against Parliament is approached in two ways. While offences against Parliament are regarded as being in a special category in may countries, it is only in a comparatively small group of countries in which Parliament undertakes the trial and sentencing itself. Those countries drawing heavily on the Westminster system of parliamentary democracy tend to have a fairly extensive range of contempts of parliament which are punished by parliament itself. Examples of such countries are Australia, New Zealand, Canada, Ireland and India. Other countries, while recognising offences against Parliament, have laid these down in the laws of the land and left the trying of the offenders to the ordinary courts. Germany, Sweden, Denmark and the Netherlands follow this model. (In certain countries offences against Parliament as such are not known, with the result that an offence is not punishable unless it would be punishable if committed against any individual or other organisation.This is the situation in France, Japan, Luxembourg and Switzerland.)

In most Commonwealth legislatures the power to punish contempts is exercised by Parliament itself. Various arguments are commonly made against the transfer of this power to the courts. Among these are that the decision to refer the matter to the courts will in itself acquire the characteristics of a pre-trial hearing and therefore saddle Parliament with the same difficulties encountered when the contempts are punished by the House itself. The point is also made that Parliament is a lenient judge and that handing contempt matters over to the courts will result in harsher sentences. The experience in Sri Lanka, which is discussed below, contradicts these arguments.

 

Methods of dealing with contempt

1. Retain status quo: Retain present position in terms of which Parliament has jurisdiction to punish all contempts whether committed by members or non-members while enhancing the natural justice protections extended to person subject to contempt charges.
2. Use ordinary courts: Transfer all contempt powers to ordinary courts.
3. Distinguish contempts committed by members from contempts committed by others: Abolish Parliament's power punish contempts committed by outsiders and hand such matters over to the ordinary courts while retaining Parliament's power to deal with members and officials of Parliament.
4. Distinguish on basis of seriousness of contempt: Give ordinary courts jurisdiction over all contempts but retain Parliament's power to deal with less serious contempts (or contempts that relate specifically to internal arrangements).

 

Discussion

1. Retain status quo

In South Africa at present the Powers and Privileges of Parliament Act empowers Parliament (or either House) to act as a court and to punish contraventions of the Act. Fines and imprisonment are possible sanctions. In terms of section 10(1) the House may impose a penalty for contempt by fine or otherwise, as provided in the standing orders, on a member or any other person in respect of the offences listed in sub-section (3). Thus the Act empowers the imposition of penal sanctions on both members and outsiders who commit contempt of Parliament. Section 10(2) provides that if the fine or punishment imposed in terms of sub-section 1 is not immediately undergone the offender may be committed to prison for a period ending not later than the last day of the then current session.

As indicated in Chapter 5, section 10(3) of the Act lists some of the most common contempts, but it is not exhaustive. For instance, while the section provides that it is a contempt to publicise 'scandalous libel' about a member it does not provide for the defamation aimed at Parliament itself. However, section 36 of the Act ensures that further common-law contempts not mentioned in section 10(3), may be punished by Parliament. Foremost among these common-law contempts is 'defamatory contempt' where Parliament as a body is defamed or its standing demeaned (this is dealt with in detail in Chapter 5).

Section 36 of the Act also protects Parliament's common-law penal powers. An example of a common-law punishment for contempt is expulsion.

Thus the jurisdiction to punish persons, including members, for contempt of Parliament in South Africa is rooted in both statute and common law.

Section 33 of the Act provides that a House may, by resolution, request the Attorney-General to prosecute a person in the ordinary courts. Thus, in instances where the House regards a contempt proceeding as too cumbersome or technical or where it may be politically unwise for Parliament to pursue it, it has the power to refer the matter to the courts.

There are questions about the constitutionality of this approach. Most significantly, the European Court of Human Rights (ECHR) found the Maltese Parliament to be infringing the European Convention on Human Rights when it exercised its power to punish an outsider for contempt.

 

Demicoli v Malta concerned a journalist who had been found guilty by the Maltese House of Representatives of a breach of parliamentary privilege for publishing an article ridiculing two members of Parliament. He was fined and ordered to print an apology. He took the case to the ECHR alleging that his right to a fair trial had been infringed because he had not had a fair hearing in response to the criminal charge levelled against him. He had to show that there was a `criminal' charge against him. The ECHR found that the contempt proceedings against the applicant constituted a 'criminal charge', notwithstanding that fact breach of parliamentary privilege was not classified as a crime under Maltese law. Since the applicant was not a member of the House, the contempt proceedings did not relate to the internal regulation and orderly functioning of the House: they were akin to criminal proceedings rather than disciplinary in character. Furthermore, the penalties potentially available (imprisonment for up to 6o days or a fine of up to 500Lm) were sufficiently serious to warrant classifying the offence as criminal. Finally, the impartiality of the House as adjudicating body was questionable as the two members who had raised the breach of privilege participated in the proceedings throughout. Therefore the applicant's right to a fair trial had been violated.

Traditionally the punishment of contempt by Parliament has not been seen as a proceeding which is criminal in nature. This is despite the fact that that the consequences flowing from such proceedings may severely restrict individual liberties (imprisonment and fines) and are routinely described as 'punishments'. The Demicoli court applied a test developed by the ECHR to determine whether an offence for which a person is charged is criminal. The test has three aspects: the classification of the offence in the law of the defendant state; the nature of the offence; and the degree of severity of the possible punishment. A similar test may be adopted in South Africa. Such an approach would mean that persons tried for contempt of Parliament would be considered 'accused persons' entitled to the rights set out in section 35(3) of the Constitution. Section 35(3) states, inter alia, that '[e]very accused person has a right to a fair trial, which includes the right …(c) to a public trial before an ordinary court'.

Malta responded to the Demicoli judgment by transferring the power to punish contempt to the ordinary courts.

 

(b) Use ordinary courts:

This option, which involves transferring all contempt powers to ordinary courts, would clearly be constitutional.

 

(c) Distinguish contempts committed by members and parliamentary officials from contempts committed by others:

 

This approach would involve abolishing Parliament's power punish contempts committed by outsiders (non-members) and handing such matters over to the ordinary courts while retaining Parliament's power to deal with members and officers of Parliament. This is the approach adopted by the Gauteng Powers and Immunities of the Provincial Legislature Act (Act No. 2 of 1995).

On this approach Parliament would retain the power to discipline its members and staff. These inquiries would be similar to a hearing for misconduct in other contexts and - depending on the sanctions available - would not be considered criminal proceedings. They would, of course, be subject to the rules of natural justice.

The complete or partial transfer of the power to punish contempts was discussed in a report on parliamentary privilege to the Australian Commonwealth Parliament. The transfer was rejected for various reasons. It was felt that the transfer created a potential for conflict between Parliament and the courts. Futhermore, with a few exceptions, Parliament had been a lenient judge and could bring to bear the kind of political flexibility and senitivity denied to a court.

However, in many respects this, or the following model, are most in keeping with modern notions of the administration of justice and a Rechtsstaat (constitutional state). Action taken against members might still be characterised as largely disciplinary in nature, but the penal element in the punishment of outsiders is absent.

This approach respects the separation of powers. As the experience of Sri Lanka which is discussed below, demonstrates a division of authority is workable. In addition, this model does not leave Parliament toothless - the Speaker or other authorised person will retain the right to enforce law and order on the premises of Parliament. He or she is empowered to order the arrest of persons breaching the peace or disturbing the good order of the House. Parliament will retain the powers it needs to secure its day-to-day functioning, such as the ejectment of unruly strangers. The sanctions available would also be limited - reprimand for members and strangers, suspension for members, and the ejectment and debarment of strangers. Strangers causing a disturbance could be arrested.

The refusal to appear before a committee or to answer questions can simply be incorporated in a relevant statute as offences prosecuted by the prosecuting authorities and tried before the ordinary courts. This procedure keeps Parliament out of proceedings it is ill-equipped to deal with and which can be equally well dealt with by another forum.

 

Germany and the United States provide examples of legislatures with limited rights to punish contempt.

Germany: The idea that Parliament should punish contempt is foreign to Germany. Nevertheless, the exercise by members of the German Bundestag (Parliament) of freedom of speech is subject to the provisions of the Geschaeftsordnung (Standing Rules). The President (or Speaker) is empowered by the Rules to exercise progressive discipline to maintain order and decorum during debate. The President may direct a speaking member not to stray from the subject matter. A member disturbing the order of the House is called to order by name. In cases where a speaker has been directed with regard to relevancy three times or called to order three times the President may silence him. If a member grossly disrupts the good order of the House, the President may have him removed from the chamber for the duration of that days sitting, without a prior call to order. By the end of the sitting the President must inform the House of the duration of the member's suspension. The maximum period of suspension is 30 sitting days. During the period of suspension the member is precluded from taking part in committee proceedings. The suspended member may appeal in writing before the next sitting of the House which then decides on the appeal.

In keeping with the principle of separation of powers Parliament has a primarily legislative function. It only assumes executive or judicial powers when it is empowered to do so. There appears to be no equivalent to our Parliament's power to sit as a court and punish contempt of Parliament. The one instance of a judicial function mentioned is that of dealing with the validity of elections in terms of article 41 of the Basic Law. Select committees have been appointed to investigate matters impacting on the authority and dignity of Parliament. The sections of the Strafgesetzbuch (Penal Code) dealing with criminal defamation (ss 185-200) provide that defamation of political figures and Parliament itself are crimes.

 

United States of America: The Constitution provides that Congress has the power to discipline its members for misconduct or disorderly behaviour. The harshest punishment is expulsion, requiring a two-thirds majority while censure requires only a simple majority. For minor transgressions of the rules the presiding officer of either House may call the member to order without a formal move to censure. In recent times Congress has moved towards less harsh forms of discipline such as reprimand, denial of the member's right to vote, stripping of chairmanships, and fines.

The procedure in relation to unparliamentary language is that a member can ask that the offending words be 'taken down'. House business is suspended until the words have been taken down by the Clerk and reported. Once they have been read the Chair rules whether they are unparliamentary. If they are found to be out of order they may be struck from the Congressional Record and the offending member must take his seat and not speak again for the remainder of the day without the permission of the House. With regard to the power of order in the Chamber, Rule XIV clause 4 provides that:

'If any Member, in speaking or otherwise, transgress the rules of the House, the Speaker shall, or any Member may, call him to order; in which case he shall immediately sit down, unless permitted, on motion of another Member, to explain, and the House shall, if appealed to, decide on the case without debate; if the decision is in favor of the Member called to order, he shall be at liberty to proceed, but not otherwise; and, if the case requires it, he shall be liable to censure or such punishmentas the House may deem proper.

At an early stage the Supreme Court held that the specific power to punish memers did not preclude the punishment by Congress of outsiders for contempt. However, this power extends to contempts committed during proceedings strictly of a legislative character or in the course of an enquiry, for instance involving the summonsing of persons to appear before committees and to answer questions etc. It therefore never took over the further features of the power to punish contempt as developed in the United Kingdom. Almost from its inception the use of the contempt power by the legislature was deemed subject to judicial review. In recent times the contempt of Congress power has not been exercised by Congress itself, but by means of a contempt of Congress statute. Congress retains the residual power to punish contempts.

 

(d) Distinguish whether or not Parliament has jurisdiction on basis of seriousness of contempt:

 

A distinction could be made between different forms of contempt. Parliament could retain the power to deal with less serious contempts (or contempts that relate specifically to internal arrangements).

 

Sri Lanka: The Sri Lankan Powers and Privileges of Parliament Act divides the power to punish contempts between Parliament and the courts. The courts alone are competent to try the graver contempts listed in Part A of the Schedule to the Act. Parliament's power to punish is limited to the acts and omissions of lesser gravity contained in Part B and Parliament may refer even these cases to the ordinary courts. The sanctions that Parliament may impose are limited to admonition before the House, suspension from the House (members) and debarment from entering the precincts of the House (non-members). The courts can punish by way of a fine or even imprisonment.

In 1978 an amendment was passed which vested in the Sri Lankan Parliament the power to fine concurrently with the courts. Parliament soon used this power in the infamous 'Ceylon Observer' case, in which two editors were punished for publishing a photograph and caption defamatory of a Minister. Thereafter a lawyer wrote a series of articles criticising the shortcomings of the parliamentary contempt proceedings against the editors. The case Attorney-General v Nadesan went to court when Parliament directed the Attorney-General to prosecute the lawyer for contempt under the provisions of the Act. The judgment provides a striking example of a court curbing what would have amounted to an abuse of the contempt power.

The power of Parliament to punish contempts appears to have had serious consequences for freedom of political expression in Sri Lanka. In 1997 an amendment to the Act was passed which restored the original position. The power to impose punitive sanctions or fines and the competence to deal with more serious contempts was again made the exclusive province of the Supreme Court. (The Schedule to the Sri Lankan Act is attached as Annexure B.)

 

6.2 FAIR PROCEDURES

 

If Parliament is to deal with any form of contempt, fair procedures must be adopted. This section considers the legal standards that Parliament must observe when engaged in investigating and disciplining or punishing a person who has committed a contempt. The following section deals with the sanctions that may be imposed for contempt of Parliament.

Since contempts by outsiders and members are, in principle, identical it follows that the same procedures may be adopted by Parliament for dealing with contempts by both classes of person. However, different levels of procedural fairness will be required for different sanctions. For instance, an individual facing the possibility of imprisonment or a fine is entitled to the full range of natural justice rights. If the sole sanction available is a reprimand, the demands of procedural justice will not be as high.

Four common criticisms of the power to punish contempts are noted in Odgers' Australian Senate Practice, but the impact on the rights of the accused is singled out as the one with the most substance. The emphasis is therefore on treating the accused in contempt proceedings fairly. Fairness in proceedings manifests itself through adherence to the principles of natural justice. These principles or tenets encompass what are essentially a number of procedural rights. They are procedures aimed at ensuring that a person's legal rights are protected when decisions are made which impact on those rights.

 

The rules of natural justice are not immutable rules at all, but rather a collection of procedural devices that can be tailored to fit different contexts. They have been summed up in the Parliamentary contexts as follows:

'In essence natural justice imports the right to a fair impartial hearing, a right to be heard, a right to know the case put against one and to test it, and a right to confront adverse witnesses.'

What follows is an attempt to set out how the rules of natural justice can be applied in the context of parliamentary contempt proceedings.

 

6.2.1 The decision-maker: the rule against bias

This principle holds that no-one should be a judge in his or her own cause. The decision-maker is required to be impartial. The usual practice of Commonwealth Parliaments is to have a Standing Committee on Privilege which investigates breaches of privilege (contempts) and makes recommendations to the House. The House then considers the committee's recommendations and decides whether to accept them or not. At present our Parliament does not have such a committee and privilege matters are dealt with on an ad hoc basis.

A criticism frequently levelled at contempt proceedings is that Parliament acts as complainant, prosecutor and judge. This is clearly the case when the House decides whether or not a person is guilty of contempt of the House. However, if one accepts that the courts have the power to punish contempts directed at them, there is in principle no reason why this power should be denied Parliament. What is important is to put procedures in place that are conducive to fair results and allow Parliament to act credibly when hearing cases. There is likely to be a political element in most cases of contempt of Parliament . But this is not necessarily a reason for removing all decision-making power from Parliament. On the contrary, it may be argued that members of Parliament will be able to make decisions appropriate to the needs and pressures of Parliament and thus should decide matters of contempt - or at least those involving other members and parliamentary proceedings.

Nevertheless, decision-making along party lines does constitute bias and can result in unfairness. To counteract this, the composition of any committee dealing with contempt and the role of the House in confirming decisions need to be considered carefully.

 

The committee:

A standing committee to deal with contempt or privileges issues can enhance fairness. This is because it is important to avoid ad hoc procedures by the committee conducting the investigation/hearing. In the United Kingdom, Australia and New Zealand, standing committees on privilege are appointed for the duration of the Parliament. This leads to consistent and uniform application of the law and rules of Parliament. Procedures for conducting hearings can be fine-tuned and a body of precedents built up.

The composition of the disciplinary committee is obviously an area of special concern. Bloc voting along party lines is a strong indication that the matter was not judged on the merits and that the decision-makers were biased even though the matter might have been of a political nature.

 

The issue of partisan decision-making is a difficult one. Most Commonwealth parliaments do not appear to set special requirements for party representation on privileges committees. One option is to fill some of the places on the committee with outsiders, such as judges who will, it is argued, give it additional independence. Elsewhere, the practice is to appoint a senior backbencher with considerable parliamentary experience as chairperson and to fill a number of places on the committee with lawyers.

Committee composition which makes it difficult for a single party to determine the outcome will contribute towards the appearance of impartiality and fairness. This will be particularly important where there is an existing perception that decisions on privilege issues are made along party lines.

The rule against bias also requires that persons who have expressed a firm opinion on the subject under investigation or have some other vested interest that may be seen to affect their impartiality ought not to sit on the committee. In the Demicoli case it was held that, because the members who had raised the complaint of breach of privilege took part in the contempt proceedings against him, Mr Demicoli had been denied the right to be tried by fair and impartial tribunal.

The fact that a committee hearing a privilege matter does not formally make any decisions but merely makes recommendations and does not formally 'charge' or 'try' a person does not detract from the strict requirements of procedural fairness. The consequences of appearing before a committee may be severe. Quite aside from the punishments that may be imposed, considerable damage to reputation may also result.

The house:

Some attention might also be given to the procedure after the report of the Privileges Committee is presented to the House. To what extent ought the House be obliged to follow the recommendations of the Committee? At present, the House is in no way obliged to follow committee recommendations. It could agree to the committee's proposal or change it. Questions of due process will arise when the house summarily overturns a committee's recommendation and imposes a more severe sanction for contempt without itself hearing the matter properly. To avoid this it may be appropriate to limit the powers of the House in the Rules. For instance, it might be entitled to reject committee findings or reduce the sanction but not increase the sanction.

 

6.2.2 The second pillar of natural justice: The right to be heard

 

Along with the rule against bias, the right to be heard forms a cornerstone of natural justice. Where a person's rights will be affected by a decision, he or she should be heard by the decision-maker prior to the decision being taken. The Australian Senate and the New Zealand Parliament have taken the lead in adapting this basic rule to the parliamentary context. In those legislatures there was an attempt to set up procedures to ensure that all witnesses before committees were treated fairly.

In the Australian Senate the decision was taken that contempt proceedings would not be strictly modelled along the lines of criminal trials. It was recognised that the proceedings of a priviges committee are inquisitorial and not adversarial in nature, and that often it would not be clear at the outset of the proceedings who the 'guilty' party might be. Therefore the commission of enquiry model was adopted, but increased rights were afforded to all persons appearing before the committee. In many respects many of these were already being extended to witnesses before ordinary committees.

In New Zealand, when allegations are made in a select committee which may seriously damage the reputation of a witness, the committee is required to accord the witness reasonable opportunity to respond by making a written submission and by appearing before the committee. A committee is also obliged to furnish to a witness material, provided it is not secret, that contains allegations that may seriously damage the witness's reputation. Further provisions, such as the automatic right to be assisted (not represented) by counsel of a witness's choice, have also been introduced. Along with additional safeguards for persons apearing as witnesses in contempt proceedings, the procedures used by ordinary committees are also followed by the privileges committees in their work.

6.2.2.1 The right to know the case and test evidence

Allegations: A facet of the right to be fair hearing is the right know the full extent of the allegations against one and, where possible, the particulars of any evidence which has been given.

Sufficient notice of the hearing should be given, so that the affected person has the opportunity to prepare adequately. At the hearing the affected person must be given a reasonable opportunity to refute the allegations by making written or oral submissions, having evidence placed before the committee and calling witnesses before the committee. Where witnesses are called against people, they should be permitted to cross-examine them. As far as is possible a person against whom allegations have been made should be permitted to be present when evidence is given that deals with her.

Right to legal counsel: Permitting legal representation safeguards the rights of the persons who are being investigated. It thus contributes to the fairness of the process. In its 1989 Report the South African Committee recommended that the committee on privileges should be empowered to permit legal representation, or in the case of a member, assistance by another member. It was felt that legal representation should, however, be granted only in exceptional cases. This is also the position in the United Kingdom.

The Australian Senate and the Parliament of New Zealand have moved to a position where persons appearing before a privileges committee have an automatic right to be assisted by counsel. It is submitted that the right to have counsel present to advise on the answering of questions and examination of witnesses is essential for the proceedings to be fair. Under certain circumstances the committee may wish to permit counsel to undertake cross-examination on behalf of the witness. Counsel could also be permitted to make subimissions and address the committee at the outset of the inquiry about the procedures to be followed.

Refusal to answer questions: The 'accused' in a contempt hearing should have the right to refuse to answer in open session questions that the committee believes may incriminate him or her.

6.2.2.1 Submissions on findings

The right to make submissions on the findings adds to the fairness of the procedure because it gives the affected person antother chance to state her case and possibly draw attention to any defects in the proceedings. As soon as possible after reaching a decision on its findings, the committee should inform the affected person of these findings and give him or her reasonable opportunity to make submissions in response. The submissions must be taken into account before the final report is presented to the House.

6.3 Procedures for raising contempts

In South Africa the raising of an alleged contempt appears to occur by way of a motion, which is voted on by the House. If the House decides to institute an investigation, its decision will also contain the terms of reference of the committee and its powers, such as those of calling witnesses.

A general framework for raising breaches of privilege and contempt of Parliament needs to be worked out. In this regard an issue that requires consideration is whether there ought to be a time limit for the raising of an alleged contempt. In most parliaments where the notion of contempt exists, the rule is that the complaint must be raised at the first opportunity after the conduct complained of took place, although this rule is not universal. This rule places emphasis on timing rather than on the merits of the complaint.

The procedure followed in New Zealand and the Australian Senate represents what can be regarded as 'best practice' in as far as the procedure for raising matters of privilege and contempt is concerned. Instead of being raised in the House and accorded precedence by the Speaker if he or she finds that there was a prima facie case of contempt, complaints are now raised with the Speaker in writing. The Speaker then has the opportunity to consider the matter off the floor and take advice before deciding whether to accord the matter precedence. In this way the matter is removed from the heated atmosphere of the House.

To avoid the impression that the matter has been pre-judged, the Speaker no longer rules on whether there is a prima facie case but rather decides whether or not the allegation is serious enough to be passed on to the committee. This procedure offers the opportunity to vet applications and filter out frivolous ones.

6.4 Punishment

Punishments that are or have been used to punish contempt of Parliament include imprisonment, fines and reprimands, and, for members, in addition, expulsion and suspension. This part of the Report considers each of these.

6.4.1 Imprisonment

Section 10(1) the Powers and Privileges of Parliament Act envisages imprisonment for contempt where the fine or other punishment specified for a contempt enumerated in section 10(3) is not paid or carried out. Furthermore, section 32(1) states that any persons adjudged guilty of a contravention of the of the Act may, in addition to any other penalty to which they are liable under the Act, be sentenced to imprisonment for a period during the current session of Parliament.

Imprisonment also appears to remain a competent penalty for the common-law contempts (for example defamatory contempt).

The deprivation of liberty is a serious inroad into the rights of the individual. This means that a fair trial, with the possibility of review or appeal, is a pre-requisite. It is unlikely that Parliament will be able to meet the standards ordinarily set for criminal trials or that 'trial by Parliament' followed by imprisonment will be considered a situation in which limitation of the right to fair trial is justified.

Whether or not Parliament's power to imprison will be considered to be constitutional, the process necessary to imprison will be a burden on Parliament while probably also being very damaging to the public perception of Parliament. It may well be asked whether a power that cannot be practicably exercised, even if it is constitutional, should be retained.

The power by Parliament itself to imprison for contempt is not widely shared by other Parliaments across the world. Successive reports from the UK where the practice originated have recommended that it be abolished.

If the power to imprison is retained, the wording of section 10(2) needs to be altered since it makes provision for the imprisonment of an offender 'for a period ending not later than the last day of the then current session'. As Parliament no longer sits in sessions, a maximum period of imprisonment should be provided for.

6.4.2 Fines

Section 10(1) of the Powers and Privileges of Parliament Act allows Parliament to adopt Rules which give it the power to fine people who commit the contempts listed in sub-section (3). In terms of Rule 217 of the Standing Rules of the National Assembly, the maximum fine that may be imposed is R200. The 1989 South African Report recommended that the Standing Rules should be amended to increase the fine that can be levied to an amount not exceeding R5 000 in respect of natural persons and an amount not exceeding R50 000 in respect of juristic persons. We are not aware of any instance where Parliament has exercised the power to impose a fine for contempt.

The power to fine may exist for common-law contempts (ie those not listed in the Act). However, the last occasion on which the House of Commons imposed a fine was in 1666 and this power may have been abrogated by disuse.

It should be noted that Parliament may not under the guise of privilege attempt to do something that infringes a member's rights. Thus it was held that an attempt by the Zimbabwean Parliament to withhold Mr Ian Smith's parliamentary salary, in response to an alleged contempt of Parliament, was not permitted. The South African Code of Conduct in regard to Members' Financial Interests permits the Committee on Members' Interests to recommend a reduction of salary as a sanction (article 28). This needs to be reconsidered or regularised by including it in legislation and ensuring that (i) the procedure followed before such a penalty imposed meets the standards required of administrative action and (ii) that the penalties contemplated ones that Parliament is authorised to impose.

 

6.4.3 Reprimands and admonitions

 

In cases where the offence is not so grave as to warrant committal of the offender, he or she is generally directed to be reprimanded or admonished by the Speaker. If the offender is not in attendance, he or she may be ordered to be taken into the custody of the Serjeant and brought to the bar the following or some later day, to be reprimanded and discharged. In South Africa the practice of summoning persons to the bar to be reprimanded has been used fairly frequently against journalists who have offended Parliament.

This sanction for contempt may seem attractive at first glance. However, since it ultimately works only if a person can be made to appear before the Bar of the House or forced to apologise because the 'stick' in the form of contempt proceedings (punishable with a fine or imprisonment) has been waved, it raises the same problems associated with imprisonment. Some of the problems associated with the imposition of penal sanctions by Parliament could be avoided by transferring the trial of persons who do not appear at the Bar of the House to the ordinary courts. The frequent use of such a sanction may contribute towards a perception that Parliament is heavy-handed.

 

6.4.4 Expulsion

 

Expulsion is a sanction against a member for a severe contempt. We are of the view that expulsion is not a competent punishment for Parliament to impose on a member in terms of our Constitution. An exception is expulsion in terms of the Rules and Orders contemplated by section 47 (3)(b) of the Constitution - 'absence without leave'.

Background

There are two possible sources for Parliament's right to expel members. Section 36 of the Powers and Privileges of Parliament Act confers upon the South African Parliament the same powers as were held by the House of Commons in 1910. As far as we can ascertain, no member has ever been expelled under these powers. In addition, the Constitution stipulates that members loose their seats if they are absent without permission 'in circumstances for which the rules and orders of the Assembly prescribe loss of membership'. Section 62(4)(e) is a similar provision applying to permanent delegates to the NCOP. Rule 14(1) of the Preliminary Rules of the NCOP provides that a person ceases to be a delegate if she is voluntarily and without leave absent from the Council on each of 15 consecutive sitting days of the Council. At present the Rules of the National Assembly do not provide for the expulsion of a member at all.

An initial question is whether the constitutional provision replaces the traditional common-law right to expel members granted to Parliament by the Powers and Privileges of Parliament Act. We think that it does that and that the power to expel members for contempt under section 36 of the Powers and Privileges of Parliament Act has been implicitly excluded by the Constitution.

Under the tricameral Constitution of 1983, members had to vacate their seats if

(i) they became subject to a list of disabilities set out in section 54, which served as disqualifications from office;

(ii) they ceased to be qualified as required by law; or

(iii) they were absent for a whole ordinary session of Parliament without special leave from the House concerned.

The disqualification on absenteeism operated automatically, without being subject to a decision of the House.

The interim Constitution provided (in section 43) that members were to vacate their seats on substantially the same grounds: if they ceased to be eligible, or if they were absent from the sittings of the Assembly or other parliamentary forum for 15 consecutive days without leave in accordance with the rules and orders. In addition, members lost their seats if they ceased to be a member of the party which nominated them. The 1996 Constitution retains the general grounds for loss of seat contained in the 1993 Constitution.

The idea of representative democracy means that it is for the electorate to select its representatives and decide on the desirability of them holding public office. Therefore it can be argued that the grounds on which a representative can be removed from office by any other means than elections should be limited. Furthermore, a number of reasons exist to suggest that the power to expel has been abolished by the pertinent provisions of the Constitution. Firstly, the very specificity of section 47 of the Constitution seems to indicate that it exhausts the grounds on which members may lose office. Section 47 describes in detail when a person is eligible to be a member and specifies two circumstances when a person loses membership: (i) when a member is absent without permission and the Rules and Orders prescribe loss of membership (section 47(3)(b)); and (ii) when the person ceases to be eligible in terms of s 47(1). The extreme specificity of (i) suggests that absence from proceedings is the only circumstance in which loss of membership can result from the application of the rules and orders.

The specific grounds for loss of membership in the South African Constitution can be contrasted with countries such as the United Kingdom where specific constitutional provisions do not exist and Parliament has the power to expel members. May lists some of the following examples of members expelled from the House of Commons: being in open rebellion, as having been guilty of forgery, of perjury, and misappropriation of public money. The power of the House of Commons to expel fulfils a necessary function - in South Africa it would not, since our Constitution already prescribes automatic loss of membership for members sentenced and convicted in the manner set out in section 47(1)(e).

Other countries - the right to expel is uncommon

It is difficult to obtain comprehensive information for other countries. The Inter-Parliamentary Union's Parliaments of the World tabulates the practice relating to privilege of 83 countries. For only eight is a power to expel mentioned (Australia, where the power has subsequently been abolished by statute, Canada, Egypt, India, Nicaragua, Philippines, UK and USA). However, the information for many other countries is incomplete.

Australia

The Australian Select Committee considered the question of expulsion and recommended that it be abolished (recommendation 25 para 7.96). This conclusion was based to a large degree on the existence of specific constitutional provisions, which dealt in some detail with the loss of membership. Section 8 of the Parliamentary Privileges Act states that a House of the Federal Parliament does not have the power to expel a member from membership of a House for contempt.

New Zealand

As is the case with the South African Parliament, the New Zealand House is vested with the powers enjoyed by the British House of Commons, including the power to expel members. Since the Electoral Act does not include expulsion as one of the grounds causing a seat to become vacant some doubt remains about the power to expel. In any event the power has never been exercised and the Standing Orders Committee has recently recommended that any power to expel be abolished.

Germany

Article 41 read in conjunction with the Federal Electoral Act (Bundeswahlgesetz) provides that Parliament is competent to review the lawfulness of election results. It may also decide whether a member ought, as a consequence of its enquiry into the election results, lose his or her membership of the house. A review of Parliament's decision by the Federal Constitutional Court is possible. Expulsion on other grounds is not envisaged.

United Kingdom

It appears that the power to expel members continues to exist. Griffith and Rye state:

'There have been two expulsions since 1945. In 1948 Mr Garry Allinghan was found to have lied to a committee (he had wrongly accused fellow MPs of accepting money for disclosing to the press proceedings of private party meetings when that was precisely what he had done himself) and generally to have behaved dishonourably in a way that amounted to aggravated contempt.... [t]he House ... ordered his expulsion....In 1954, Mr Peter Baker was convicted of forgery after pleading guilty, and was sent to prison for seven years; the House expelled him.'

The Joint Select Committee on Parliamentary Privilege (1966-7) recommended abolishing the power to expel a member. The Committee based this recommendation on the possibility of abuse and on the consideration that it was for the electorate, and not Parliament, to decide on the composition of Parliament.

 

United States of America

 

The authority of Congress to judge and punish members rests on two clauses in Article I of the Constitution. Clause 1 of Article I Section 5 essentially provides that each House is the judge of the validity of the election of its members and their qualifications for membership. The wide powers hereby granted to the Houses are fettered by the requirements elsewhere in the Constitution regulating the election of members and the necessary qualifications for membership.

The second clause, clause 2 of Article I section 5, which is relevant to the expulsion states: 'Each House may determine the Rules of its Proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member.' The requirements for eligibility are very basic and there is no automatic disqualification from office if the member is convicted of even a serious criminal charge. The disciplinary powers of Congress have been frugally used: as of late 1991, the Senate had expelled only 15 members, and the House of Representatives only four. Most cases of expulsion or attempted expulsion have concerned corruption or charges of rebellion stemming from the Civil War. The first member of the House to be expelled in the hundred years since the Civil War met his fate after being caught accepting a bribe in a FBI trap.

For offences of lesser gravity members have been censured, which amounts to a denunciation or condemnation by a House and requires a majority vote. Besides the public humiliation, consequences such as loss of chairmanship may also follow censure. Suspension, as found in the practice of other Parliaments, does not exist. However, where a member of the House of Representatives has been indicted or convicted on a criminal charge, he or she is barred from voting in the House or in committee.

 

Zambia

 

The Zambian Parliament retains the power of expulsion. It has recently exercised this power. Mr Akashambatwa Mbikusita-Lewakanika was expelled on 20 May 1996 for criticising the decision of the House to commit three journalists for contempt. The member won the right, on appeal, to have the decision reviewed only to abandon the case.

6.4.5 Suspension

The Standing Rules of the National Assembly make provision for the suspension of a member for a serious contravention of the Rules governing order in meetings (Rule 85). This Rule derives its validity either from section 57(1)(a) of the Constitution, which states that the National Assembly controls its internal arrangements and proceedings (but see De Lille v The Speaker CPD 1998) or from the common-law. The source of the common law power to suspend is found in section 36 of the Powers and Privileges of Parliament Act (this section essentially endows our Parliament with the privileges enjoyed by the House of Commons).

The power to suspend members who disrupt proceedings or defy the authority of the Chair is an undoubted right of a deliberative body - it is a power very necessary to the carrying out of a legislatures functions. The power to suspend contemptuous members, on the other hand is largely shared by the countries of the Commonwealth and those that have a British legacy: Australia, Canada, India, Ireland and New Zealand. The Sri Lankan Parliament is competent to deal with less serious contempts and may admonish or suspend a member.

A factor to be considered in relation to suspension is the disproportionate impact it can have on smaller parties. It will deprive the party and the voters it represents of their representative. Accordingly, it has been argued that suspension is incompatible with an electoral system based on proportional representation with closed party lists. However, it is clear that our system of representative government is also committed to accountable and responsible government. A power to suspend may be necessary for legislatures to fulfil their functions properly.

6.4.6 Loss of Privileges

In addition to other milder forms of punishment for members such as reprimands or censure, the US Congress also denies members the right to vote, strips offenders of chairmanships, and levies fines.

6.5 Penal jurisdiction of Provincial legislatures

A number of provincial legislatures have enacted. The Gauteng Powers and Immunities of the Provincial Legislature Act is illustrative of such legislation. It sets out what constitutes contempt of the legislature.

According to section 8 members are guilty of contempt if they -

• wilfully refuse to obey any ruling, order or resolution of the Provincial Legislature;
• commit an offence under the Act; or
• are guilty of an act or omission which in terms of the standing orders constitutes contempt of the legislature.

The Act gives the Gauteng legislature jurisdiction over contempts involving its members but gives the ordinary courts jurisdiction over contempts committed by outsiders.

Section 9 covers the disciplinary action that may be taken against members who commit contempt of the legislature. Members may be cautioned or reprimanded, fined a sum not exceeding R5 000, or suspended for a maximum period not exceeding 30 sitting days.

Section 10 makes it an offence for any person to create or join a disturbance whereby the proceedings of the legislature are likely to be interrupted. Any act which is calculated to hold the legislature or its proceedings in contempt is also an offence. A person found guilty by a court is liable to a fine or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.

Chapter 7

MISCELLANEOUS ISSUES

The preceding chapters are not comprehensive and a number of other matters still need to be considered. Amongst these are the power of Parliament to summons people and enforce its rules, financial arrangements of Parliament, and the protection given to evidence before parliamentary committees. Some notes on evidence before committees follow.

Evidence before committees

The issue here is whether freedom of speech in proceedings extends to oral evidence given in committees and reports or documents submitted to Parliament and its committees. The question really is when should witnesses receive immunity for the statements made by them before Parliament. The procedures for questioning persons is also raised - can committees compel persons to answer self-incriminating questions without granting some form of immunity?

A second and related question is to what use the evidence given in committees may be put. Can persons who gave evidence before Parliament be examined in court on their statements?

Protection of witnesses

Compelling witnesses to give self-incriminating evidence should be undertaken cautiously and only in deserving circumstances. Where a witness has incriminated himself he will probably be entitled to immunity in ordinary court proceedings in terms of section 23. Recent cases in the US involving the granting of similar immunity by Congress have shown that such action may have disastrous effects for prosecutions proceeding parallel to enquiries by the legislature. When Parliament undertakes an investigation and in the process gives immunity the case of the prosecution may be destroyed. Such problems can be minimised by respecting the different roles of the branches of government and by weighing up the pros and cons of granting immunity.

Nevertheless, when Parliament does demand testimony form witnesses, ensuring that they will testify freely is of great importance. They are unlikely to do so if they believe that they will suffer detriment as a result of coming forward to give evidence. Firstly, as a result of their testimony witnesses could be faced with legal action, either criminal or civil. Secondly, the careers or professional lives of witnesses may suffer if they have acted as 'whistleblowers'. Thirdly, in the process of appearing before a parliamentary the rights of witnesses may be violated in that they may be subjected to allegations and injury to their character as well as being compelled to incriminate themselves.

Whether civil or criminal liability arises from what witnesses say before a committee will depend on whether the witnesses evidence receives the same protection as statements made by members in debate. This is the case in England and Australia. The reason is that giving evidence is taking part in the proceedings of a House, and such proceedings may not be questioned outside Parliament. Therefore a witness may not be prosecuted nor are they subject to an action for defamation based on what they have said.

The general rule that witnesses enjoy protection has been altered by the Powers and Privileges of Parliament Act. Section 2 of the Act re-states the words of article 9 of the Bill of Rights which guarantee the freedom of speech and debate and proceedings. However, according to section 2(3) 'the provisions of subsection (1) shall not apply to any person, other than a member, giving evidence before Parliament or any committee'.

Protection for the witness takes the form of a certificate, which is issued by the presiding officer where he or she believes that the witness has answered fully and faithfully and the answers were relevant (section 23(1)). Section 23(2)(a) provides that:

'On the production of such certificate in any court of law, such court shall stay any civil or criminal proceedings, except for a charge of perjury, against such witness for anything said or done by him in the course of giving his evidence before a House or any committee or for any act or thing done by him before the time and revealed by his evidence….'

Proceedings which have been so stayed are deemed to be finally determined.

Importantly, if a presiding officer is satisfied with the conduct of the witness the certificate must be issued. The decision to issue it is not discretionary. The issuing of the certificate is not a mere formality - in the opinion of the presiding officer the witness's conduct must have been satisfactory. For this reason the South African Act offers less protection to witnesses than the law in other jurisdictions. On the other hand, the protection offered appears to extend further than the common law protection, being more in the nature of a full immunity. A witness who answers truthfully will be shielded from criminal prosecution not only in relation to what he has said, but also to the extent that crimes revealed by his testimony cannot be prosecuted.

 

Section 22 states that the rules relating to privileged evidence which are observed by the Supreme (now High) Court of South Africa shall be observed in the case of evidence before a House or committee. There exists a common-law right against self-incrimination before or during a trial. Therefore, it is proper that a mechanism exists, through the stay of proceedings on production of the certificate, to protect a witness who has been compelled to incriminate himself.

A second aspect of the protection of witnesses is the detriment they may suffer for having acted as 'whistle-blowers' etc. The House of Commons and the Australian Senate have resolutions which state that a witness who has assisted them will be entitled to the protection of House. Experience shows that contempt proceedings will quite frequently arise from attempts to influence or intimidate witnesses. This issue is discussed in Chapter 5 (5.2.2.2) where it is suggested that section 10(3)(i) of the Powers and Privileges of Parliament Act which protects witnesses due to give evidence, should be revert to its earlier formulation and also cover witnesses who have given evidence.

 

Use of evidence given before Parliament: The effect of the protection of freedom of speech in Parliament is that the courts will not question or inquire into proceedings in Parliament. The difficulty arises in relation to the examination in the courts of evidence given or statements made by members or witnesses during proceedings in Parliament. This question came to a head in Australia and led to the passage of the Parliamentary Privileges Act 1987.

Two judgments by the New South Wales Supreme Court considerably narrowed the ambit of Article 9 of the Bill of Rights, which contains the classic formulation of freedom of speech in debate and proceedings. The principal prosecution witnesses had given evidence before a select committee of the Australian Senate as had the defendant. In the course of the trial the witnesses and defendant were subjected to cross-examination on the truthfulness and the motives behind their evidence before the committee as well as before the court. In addition, in camera evidence given before the committee was also admitted by the court. The position of the Senate was that the evidence put before the committees could not be used in the trials for the purpose of supporting the prosecution or the defence, and neither was it permissible to use it to attack the evidence of the witnesses or the accused whether given before the committees or before the court.

In response to the judgments the Parliamentary Privileges Act was passed to reaffirm the wide protection granted by Article 9 to proceedings in Parliament. Section 16(1) and (2) restate Article 9 and define certain matters as proceedings in Parliament. Sub-section (3) indicates the wider application of the Article and states:

"(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of -

(a) questioning or relying on the truth, motive, intention or the good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

 

ANNEXURE A

List of recommendations of the Australian Joint Select Committee on Parliamentary Privilege concerning clarification of contempt of Parliament

 

The Committee recommended that guidelines should be adopted pointing out that certain matters may be treated as contempt. The Committee organised its recommendations, which are reproduced below, under five headings.

 

A: Independence of members

 

(Recommendation 27)

 

Interference with the Parliament
A person shall not improperly interfere with the free exercise by a House or a committee of its authority, or with the free performance by a Member of his duties as a Member.

 

Improper influence of Members
A person shall not, by fraud, intimidation, force or threat of any kind, by the offer or promise of any inducement or benefit of any kind, or by other improper means, influence a Member in his conduct as a Member, or induce him to be absent from a House or a committee.

 

Molestation of Members
A person shall not inflict any punishment, penalty or injury upon or deprive of any benefit a Member on account of his conduct as a Member or engage in any course of conduct intended to influence a Member in the discharge of his duties as a Member.

 

Contractual arrangements, etc.
A Member shall not ask for, receive or obtain, any property or benefit for himself, or another, on any understanding that he will be influenced in the discharge of his duties as a Member, or enter into any contract, understanding or arrangement having the effect, or which may have the effect, of controlling or limiting the Member's independence and freedom of action as a Member, or pursuant to which he is in any way to act as the representative of any outside body in the discharge of his duties as a Member.

 

B: Orders of the House and committees

 

(Recommendation 28)

 

Disobedience of orders
A person shall not, without reasonable excuse, disobey a lawful order of either House or of a committee.

 

Obstruction of orders
A person shall not interfere with, or obstruct, another person, who is carrying out a lawful order of either House or of a committee.

 

Interference with witnesses
A person shall not, by fraud, intimidation, force or threat of any kind, by the offer or promise of any inducement or benefit of any kind, or by other improper means, influence another person in respect of any evidence given or to be given before either House or a committee, or induce another person to refrain from giving such evidence.

 

Molestation of witnesses
A person shall not inflict any penalty or injury upon or deprive of any benefit another person on account of any evidence given or to be given before either House or a committee.

 

Offences before committees
A person before either House or a committee shall not:

(a) without reasonable excuse, refuse to make an oath or affirmation

(b) without reasonable excuse, refuse to answer any relevant question put to him when required to do so; or

(c) give any evidence or furnish any information which he knows to be false or misleading in a material particular.

A person shall not, without reasonable excuse:

(a) refuse or fail to attend before either House or a committee when summoned to do so; or

(b) refuse or fail to produce documents or records, or to allow the inspection of documents or records, in accordance with a requirement of either House or of a committee.

A person shall not wilfully avoid service of the summons of either House or of a committee.

A person shall not destroy, force or falsify any document or record required to be produced by either House or by a committee.

 

C: Unauthorised publication of material and false reports of proceedings

 

(Recommendation 29)

 

Publication of in camera evidence
A person shall not publish any evidence taken in camera by either House or by a committee without the approval of that House or committee.

 

Premature publication of reports
A person shall not publish any report or draft report of either House or a committee, without the approval of that House or committee.

 

False reports of proceedings
A person shall not wilfully publish any false or misleading report of the proceedings of either House or of a committee.

 

D: Protection of the Houses from physical disturbance and disruption

(a) Direct disruption

 

(Recommendation 30)

 

Disturbance of Parliament
A person shall not wilfully disturb a House or a committee while it is sitting, or wilfully engage in any disorderly conduct in the precincts of a House or a committee tending to disturb its proceedings or impair the respect due to its authority.

 

(b) Indirect disruption

 

(Recommendation 32)

 

Service of writs, etc.
A person shall not serve or execute any criminal or civil process in the precincts of either House on a day on which that House sits except with the consent of that House, provided however that criminal process may be served or executed where the consent of the Presiding Officer in question has first been obtained.

 

E: Other

 

(Recommendation 33)

 

Attempts and conspiracies
Generally, attempts or conspiracies made or entered into in respect of matters set out in the foregoing recommendations may be dealt with as contempts.

 

ANNEXURE B

 

SRI LANKA: PARLIAMENT (POWERS AND PRIVILEGES ACT)

SCHEDULE

PART A : OFFENCES TO BE PUNISHABLE ONLY BY THE SUPREME COURT

1. Assaulting, insulting or wilfully obstructing any member coming to or going from the House or on account of his conduct in the House or any committee, or endeavouring to compel any member by force, insult or menace to declare himself in favour of or against any proposition or matter depending or expected to be brought before the House or any committee.

2. Sending to a member any threatening letter or challenging a member to fight on account of his conduct in the House or committee.

3. Tampering with, deterring, threatening, beguiling or in any way unduly influencing any witness in regard to evidence to be given by him before the House or any committee.

4. Presenting to the House or to any committee any false, untrue, fabricated or falsified document with intent to deceive the House or any committee.

5. Wilfully publishing any false or perverted report of any debate or proceedings of the House or a committee or wilfully misrepresenting any speech made by a member in the House or in committee.

6. Wilfully publishing any report of any debate or proceedings of the House or a committee the publication of which has been prohibited by the House or committee.

7. The publication of any defamatory statement reflecting on the proceedings and the character of the House.

8. The publication of any defamatory statement concerning any member in respect of his conduct as a member.

9. The offering to or acceptance by any member or officer of the House of a bribe to influence him in his conduct as such member or officer, or the offering to or acceptance by any member or officer of the House of any fee, compensation, gift or reward for or in respect of the promotion of or opposition to any Bill, resolution, matter, rule or thing submitted to or intended to be submitted to the House or any committee.

10. The printing of a copy of any Act or Ordinance or of any report, paper, minutes or notes or proceedings of the House or any committee, which purports to have been printing by the Government Printer or by or under the authority of the House or any committee but which in fact has not been so printed or the tendering in evidence of any such copy as aforesaid.

11. The abetment of any act or omission specified in any of the preceding paragraphs.

PART B: OFFENCES TO BE PUNISHABLE EITHER BY THE HOUSE OR THE SUPREME COURT

1. The wilful failure or refusal to obey any order or resolution of the House under this Act, or any order of the President or Speaker or any member which is duly made under this Act.

2. Wilful disobedience to any order for attendance or for production of papers, books, records, or documents made by the House or any committee duly authorised in that behalf unless such attendance or production be excused as provided in section 13 and section 15.

3. Refusing to be examined before or to answer any lawful and relevant question put by the House or any such committee, unless such refusal be excused as provided in section 13 and section 15.

4. Assaulting, insulting or wilfully obstructing any member in the House or in committee or in the precincts of the House.

5. Assaulting or resisting or wilfully interfering with n officer of the House in the Chamber or in committee or in the precincts of the House.

6. Creating or joining in any disturbance in the Chamber or in committee or in the vicinity of the House while the House or any committee is sitting, knowing or having reasonable grounds to believe that proceedings of the House or committee are or are likely to be interrupted.

7. Disrespectful conduct in the precincts of the House.

8. Prevarication or other misconduct as a witness before the House or in committee.

9. The publication of any proceedings in a committee of the House before they are reported to the House.

10. The abetment of any act or omission specified in any of the preceding paragraphs.

 

ANNEXURE C

 

[a91y1963]POWERS AND PRIVILEGES OF PARLIAMENT ACT 91 OF 1963

 

To consolidate and amend the law defining and declaring the powers and privileges of Parliament, securing freedom of speech and debate or proceedings in Parliament, and giving protection to persons employed in the publication of Parliamentary papers, and to provide for matters incidental thereto.

 

[a91y1963s1]1 Definitions

(1) In this Act, unless the context otherwise indicates-

 

'committee' means any committee consisting of members of a House or of members of each of the Houses and appointed for or in connection with the business and proceedings of Parliament;

 

'Constitution' means the Republic of South Africa Constitution Act, 1983 (Act 110 of 1983);

 

'House' means a House of Parliament mentioned in section 37 of the Constitution;

 

'journals' means the minutes of proceedings of a House or of the Houses sitting jointly;

 

'member' means a member of a House and includes a Minister or Deputy Minister who is not such a member;

 

'officer of Parliament' means the Secretary to Parliament, and any other person who may be appointed to the staff of Parliament;

 

'Parliament' means the Parliament mentioned in section 37 of the Constitution (irrespective of whether the Houses, if in session, are sitting separately or jointly), or, as the circumstances may require, a House;

 

'Secretary' means the Secretary to Parliament or the person acting as such on the authority of the Speaker;

 

'Speaker' means the person elected in terms of section 58 of the Constitution to be the Speaker of Parliament;

 

'standing orders' means-

 

(a) the rules and orders made by a House in connection with the order and conduct of its business and proceedings and, in so far as they have not been amended, replaced or repealed by a House concerned, the rules and orders mentioned in section 102 (6) (a) of the Constitution;

 

(b) the rules and orders approved by the Houses as joint rules and orders in connection with the order and conduct of their business and proceedings and, in so far as they have not been amended, replaced or repealed by the Houses, the joint rules and orders mentioned in section 102 (6) (b) of the Constitution; and

 

(c) the rules and orders mentioned in section 67 (4) of the Constitution.

(2) No provision of this Act shall be construed as derogating from the provisions of section 67 (5) of the Constitution.

 

[a91y1963s2]2 Freedom of speech and debate

(1) There shall be freedom of speech and debate or proceedings in or before Parliament and any committee, and such freedom shall not be liable to be impeached or questioned in any court or place outside Parliament.

(2) Anything said by any member in or before Parliament or a committee, whether as a member or as a witness, shall be deemed to be a matter of privilege as contemplated in section 5.

(3) The provisions of subsection (1) shall not apply to any person, other than a member, giving evidence before Parliament or any committee.

 

[a91y1963s3]3 Powers and jurisdiction of a House or the Houses

For the purposes of this Act a House or the Houses shall, subject to the provisions of this Act, possess such powers and jurisdiction as may be necessary for enquiring into, judging and pronouncing upon the commission of any act, matter or thing herein declared to be a contravention of this Act, and imposing and carrying into execution the punishment provided therefor by this Act.

 

[a91y1963s4]4 Rights and privileges of a House or the Houses sitting as court

A House or the Houses sitting as a court, shall subject to the provisions of this Act have all such rights and privileges of a court of law as may be necessary for the purpose of summarily enquiring into and punishing any act, matter or thing herein declared to be a contravention of this Act.

 

[a91y1963s4A]4A Speaker or committee may act on behalf of a House or the Houses

(1) Any act which may under a provision of this Act be performed by-

 

(a) a House, may be performed by the Speaker or a committee consisting of members of such House, if authorized thereto by such House, subject to the standing orders (according to paragraph (a) of the definition of 'standing orders'); or

(b) the Houses, may be performed by the Speaker or a committee consisting of members of each of the Houses, if authorized thereto by the Houses, subject to the standing orders (according to paragraph (b) of the definition of 'standing orders').

(2) For the purposes of the performance of an act by the Speaker or any such committee under subsection (1), the Speaker or such committee shall have the powers, rights, privileges and jurisdiction with which a House or the Houses, as the case may be, is or are invested in terms of this Act for the performance of that act.

 

[a91y1963s5]5 Stay of proceedings in connection with matter of privilege

At any stage of any civil or criminal proceedings instituted for or on account or in respect of any matter of privilege, upon production to the court or judge by the defendant or accused, of a certificate by the Speaker or, in his absence or other incapacity, by the Secretary, stating that the matter in question is one which concerns the privilege of Parliament, that court or judge shall immediately stay such proceedings, which shall thereupon be deemed to be finally determined.

 

[a91y1963s6]6 Attendance of members before a House

No member shall, without the consent or order of the House of which he is a member, or, during any adjournment or recess, or after any dissolution, of that House, without the consent of the Speaker in pursuance of any request, attend before another House or a committee of such other House.

 

[a91y1963s7]7 Members and officers exempted from certain obligations

(1) No member or officer of Parliament shall be required, while in attendance on Parliament, to attend as a witness in any civil proceedings in any court unless that court holds its sittings at the seat of Parliament.

(2) No civil proceedings in which a member or officer of Parliament is a defendant shall, while that member or officer is in attendance on Parliament, be brought to trial in a court that holds its sittings elsewhere than at the seat of Parliament.

(3) A certificate by the Speaker stating that a member or officer of Parliament is in attendance on Parliament shall be sufficient proof of such attendance.

 

[a91y1963s8]8 Members not liable to proceedings

Notwithstanding the provisions of this or any other Act, no member shall be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of any matter or thing which he may have brought by petition, bill, resolution, motion or otherwise or may have said before or in Parliament or any committee.

 

[a91y1963s9]

 

9 Persons not liable for acts done under authority of Parliament

No person shall be liable in damages or otherwise for any act done under the authority of Parliament and within its legal powers, or under any warrant issued by virtue of those powers.

 

[a91y1963s10]10 Parliament empowered to punish for contempt

(1) There may for or in respect of any offence mentioned in subsection (3), whether committed by a member or by any other person, summarily be imposed a penalty for contempt by fine or otherwise as provided by the standing orders or by this Act, and any such penalty shall be imposed-

 

a) by a House, in the case where the offence was committed before or in that House or a committee of that House, or in respect of an order, rule or resolution of that House or such a committee, or by or in respect of a witness before that House or such a committee, or by or in respect of a person ordered to appear before that House or such a committee, or by or in respect of a member of that House; or

 

(b) by the Houses, in any other case.

(2) If any fine or punishment imposed in terms of subsection (1) is not immediately paid or undergone the offender shall be committed to the custody of the person in charge of any prison or of an officer of Parliament in such place as the relevant House or the Houses, as the case may be, may direct, for a period ending not later than the last day of the then current session or until the payment is made or the punishment is undergone.

(3) The offences referred to in sub-section (1) shall be-

 

(a) disobedience to any order made by a House or any committee duly authorized thereto, for the attendance before or the production of any paper, book, record or document to that House or committee, except where the person concerned has been excused from such attendance or production in terms of section 20;

 

(b) refusing to be examined before, or to answer any lawful and relevant question put by, a House or any committee, unless such refusal has been excused in terms of section 20;

 

(c) wilful failure or refusal to obey any rule, order or resolution of a House or the Houses;

 

(d) offering to or acceptance by any member or officer of Parliament of a bribe to influence him in his conduct as such member or officer, or offering to or acceptance by any member or officer of Parliament of any fee, compensation, gift or reward for or in respect of the promotion of or opposition to any bill, resolution, matter, rule or thing submitted or proposed to be submitted to Parliament or any committee;

 

(e) assaulting, obstructing or insulting any member proceeding to or going from Parliament, or on account of his conduct in Parliament, or endeavouring to compel any member by force, insult or menace to declare himself in favour of or against any proposition or matter depending or expected to be brought before Parliament;

 

(f) assault upon, interference with or resistance to an officer of Parliament in the execution of his duty or while proceeding to or going from Parliament in the course of or in connection with his official duties;

 

(g) sending any threatening letter to a member, or challenging him to fight, on account of his conduct in Parliament;

 

(h) while Parliament is sitting, creating or joining in any disturbance in Parliament or in the vicinity of Parliament, whereby the proceedings of Parliament are or are likely to be interrupted;

 

(i) tampering with, deterring, threatening, beguiling or in any way unduly influencing any witness in regard to evidence to be given by him before a House or any committee;

 

(j) presenting to a House or any committee any false, untrue, fabricated or falsified document with intent to deceive that House or committee;

 

(k) prevarication or other misconduct as a witness before a House or any committee;

 

(l) the publication of any false or scandalous libel on any member touching his conduct as a member; and

 

(m) any contempt from time to time set forth, and declared to be such, in the standing orders.

 

 

[a91y1963s11]11 Member not to vote upon any matter in which he has a direct pecuniary interest

(1) Subject to the provisions of sub-section (3), a member shall not in or before Parliament or any committee vote upon or take part in the discussion of any matter in which he has a direct pecuniary interest.

(2) Any member who contravenes subsection (1) may be adjudged guilty of contempt of Parliament by the House of which he is a member and shall be liable to the penalties provided in this Act for such contempt.

(3) The provisions of sub-section (1) shall not apply to any vote or discussion concerning any remuneration or allowance to be received by members in their capacity as such, or to any interest which a member may have in any matter in common with the public generally or with any class or section thereof.

 

[a91y1963s12]12 Issue of warrants for arrest and imprisonment

For the purpose of any punishment for any of the contempts of Parliament named in this Act the Speaker may issue a warrant under his hand for the arrest and imprisonment of any person sentenced to imprisonment or who fails to pay a fine or undergo a punishment to which he has been sentenced.

 

[a91y1963s13]13 Form of warrant

(1) Every warrant referred to in section twelve shall contain a statement that the person therein mentioned has been adjudged guilty of contempt of Parliament and shall specify the nature of such contempt.

(2) Any such warrant shall be sufficient if it can be reasonably inferred therefrom that the person mentioned therein has been adjudged guilty of any of the contempts of Parliament named in this Act, and it shall not be necessary to observe any particular form in any such warrant.

 

[a91y1963s14]14 Arrest without warrant

Any person creating or joining in any disturbance in Parliament during its actual sitting may be arrested without warrant on the verbal order of the Speaker and may be kept in the custody of an officer of Parliament, designated by the Speaker, until a warrant can be issued for his imprisonment.

 

[a91y1963s15]15 Execution of warrants and verbal orders

Every sheriff and his deputies and their officers and all police officers, constables and other persons shall assist in the arrest and detention of any person in pursuance of any such verbal order as is referred to in section fourteen and shall aid and assist in the execution of any warrant issued in terms of section twelve or thirty-two and where any such warrant directs that the person mentioned therein shall be imprisoned in any gaol or other place, the person in charge thereof shall on production to him of such warrant receive such person into his custody in the said gaol or other place and there imprison him according to the tenor of the warrant.

 

[a91y1963s16]16 Breaking open of doors and searching of premises in execution of warrants

Any person charged with or assisting in the execution of any warrant under the hand of the Speaker, may in day time break open any door or search any premises in which the person for whose arrest such warrant was issued may be or may reasonably be suspected of being concealed.

 

[a1y1963s17]17 Order to attend before a House or committee

A House, or any committee authorized to require the attendance of persons or the production of documents or papers, may, subject to the provisions of section 6, order any person to attend before that House or committee and to produce any paper, book, record or document in his possession or under his control.

 

[a91y1963s18]18 Summonsing of witnesses

(1) An order to attend or to produce any document before a House or any committee shall be notified to the person required to attend or to produce the document, by a summons under the hand of the Secretary issued on the direction of the Speaker.

(2) In every summons referred to in sub-section (1) there shall be stated the time and the place at which the person summonsed is required to attend, and the particular document, if any, which he is required to produce.

(3) A summons referred to in sub-section (1) shall be served on the person mentioned therein either by delivering to him in person a copy thereof or by leaving such copy with some adult person at such first-mentioned person's usual or last known place of residence in the Republic.

(4) A person summonsed in terms of subsection (3) may be paid such sum for his expenses as may be approved by the Speaker in accordance with the standing orders.

 

[a91y1963s19]19 Examination of witnesses

A House or any committee may require that any fact, matter or thing relating to the subject of enquiry before that House or committee be verified or otherwise ascertained by the oral examination of any witness, and may cause any such witness to be examined upon oath which the Speaker, the chairman of such committee or a person specially designated by the Speaker for that purpose, may administer: Provided that any person who is in terms of any provision of this Act required to make and subscribe an oath may in lieu of such oath make and subscribe a solemn affirmation in corresponding form.

 

[a91y1963s20]20 Refusal to answer questions or to produce documents

If any person ordered to attend or to produce any paper, book, record or document before a House or any committee, refuses to answer any question that may be put to him or to produce any such paper, book, record or document, on the ground that it is of a private nature and does not affect the subject of enquiry, the Speaker may report such refusal with the reasons therefor, and the House concerned, or if it is a committee consisting of members of each of the Houses, the Houses, may thereupon excuse such person from answering that question or producing that paper, book, record or document, or order that he be required to answer that question or produce that paper, book, record or document.

 

[a91y1963s21]21 False answers to questions

Any person who, after being duly cautioned as to his liability to punishment under this section, whether or not he has been sworn or has made a solemn affirmation, wilfully and corruptly gives before a House or any committee a false answer to any question which is material to the subject of enquiry and which may be put to him in the course of any examination, shall be guilty of an offence and liable on conviction by any court of competent jurisdiction to the penalties prescribed by law for perjury.

 

[a91y1963s22]22 Privileged evidence

The rules relating to privileged evidence which are for the time being observed by the Supreme Court of South Africa shall be observed in the case of evidence before a House or any committee.

 

[a91y1963s23]23 Stay of proceedings for anything said by witness or anything done by witness and disclosed by his evidence

(1) If a witness before a House or any committee, in the opinion of the presiding officer, answers fully and faithfully all questions put to him by that House or committee and his replies are relevant to such questions, he shall be entitled on application to receive a certificate under the hand of the presiding officer stating that such witness was upon his examination so required to answer and did so answer all such questions: Provided that in the case of a witness before a committee, such certificate may be signed by the Speaker.

(2) (a) On production of such certificate in any court of law, such court shall stay any civil or criminal proceedings, except for a charge of perjury, against such witness for anything said by him in the course of giving his evidence before a House or any committee or for any act or thing done by him before that time and revealed by his evidence, and may in its discretion award to such witness the expenses to which he may have been put in consequence of such civil or criminal proceedings.

 

(b) Proceedings which have been so stayed shall thereupon be deemed to be finally determined.

 

[a91y1963s24]24 Giving of evidence elsewhere of proceedings before a House or committee

(1) No member, officer of Parliament or reporter employed to take minutes of evidence given before a House or any committee, shall give evidence elsewhere in respect of the contents of any evidence given or of any manuscript or document laid before a House or any committee, or in respect of any proceedings or examination at the Bar of a House or before any committee, without first having obtained the special leave of the House concerned, or if it is a committee consisting of members of each of the Houses, the Houses.

(2) After a dissolution or during a recess or an adjournment of Parliament such leave may be given by the Speaker or, in his absence or other incapacity, by the Secretary.

 

[a91y1963s25]25 Powers of provincial councils in relation to certain enquiries

Unless the provincial council of any province has by ordinance, rule or resolution otherwise provided, the powers conferred by this Act and the standing orders in relation to enquiries by committees shall mutatis mutandis apply to enquiries by such provincial council into matters that require to be dealt with by a Private Act of Parliament as provided in section 87 of the Provincial Government Act, 1961 (Act 32 of 1961), and that may have been referred to such provincial council by resolution of a House or the Houses.

 

[a91y1963s26]26 Certain persons prohibited from receiving compensation for promotion of or opposition to proceedings in Parliament

(1) No member and no attorney, law agent or Parliamentary agent who in the practice of his profession is a partner or in the service of any member, shall accept or receive, either directly or indirectly, any fee, compensation, gift or reward for or in respect of the promotion of or opposition to any bill, resolution, matter, rule or thing submitted or proposed to be submitted to Parliament or any committee for its consideration.

(2) Any person who contravenes the provisions of sub-section (1) shall be guilty of an offence and liable on conviction by a court of competent jurisdiction to a penalty not exceeding two thousand rand and in addition to repay the amount or the value of the fee, compensation, gift or reward accepted or received by him.

 

[a91y1963s27]27 Admissibility as evidence of journals

Upon any enquiry relating to or affecting the privileges, immunities and powers of Parliament or of any member, any copy of the journals printed or purporting to have been printed by order of a House, the Houses or the Speaker, shall be admitted as evidence of such journals in all courts and places in the Republic without any proof being given that such copy was so printed.

 

[a91y1963s28]28 Penalty for printing or tendering in evidence matter falsely purporting to have been printed under Parliamentary authority

Any person who prints or causes to be printed as purporting to have been printed by the Government Printer or the Parliamentary Printer or by order or under the authority of a House, the Houses, any committee or the Speaker, a copy of any law in force or a copy of any report, paper, minutes or minutes of proceedings of Parliament or any committee that have not been so printed, or who tenders in evidence any such copy as purporting to have been so printed, knowing that it was not so printed, shall be guilty of an offence and liable upon conviction by a court of competent jurisdiction to imprisonment for a period not exceeding three years.

 

[a91y1963s29]29 Protection as regards Parliamentary publications

A defendant or an accused in civil or criminal proceedings instituted for or on account or in respect of the publication by him or his servant, by order or under the authority of a House, the Houses, any committee or the Speaker, of any report, paper, minutes or minutes of proceedings, may, on giving to the plaintiff or the prosecutor, as the case may be, 24 hours' written notice of his intention to do so, bring before the court in which such civil or criminal proceedings are being held, a certificate under the hand of the Speaker or the Secretary stating that the report, paper, minutes or minutes of proceedings in respect of which such proceedings have been instituted, were published by such person or his servant by order or under the authority of a House, the Houses, any committee or the Speaker, together with an affidavit verifying such certificate, and such court shall thereupon immediately stay such civil or criminal proceedings, which, together with every process issued therein, shall thereupon be deemed to be finally determined.

 

[a91y1963s30]30 Protection as regards the publishing of extracts from Parliamentary publications

If in any civil or criminal proceedings instituted for publishing any extract from or abstract of any report, paper, minutes or minutes of proceedings referred to in section 29, the court is satisfied that such extract or abstract was published bona fide and without malice, judgment shall be entered for the defendant or accused.

 

 

 

[a91y1963s31]31 Financial arrangements in respect of Parliament

(1) The control of the expenditure and the appropriation of moneys for the services of Parliament shall be vested in the Speaker, and his authorization for such expenditure and appropriation of moneys, as well as receipts issued by the accounting officer referred to in subsection (2) on his behalf, with reference to all matters affecting those services shall, notwithstanding anything to the contrary contained in any law but subject to the provisions of this section, be taken to be in all respects good, valid and effectual.

(2) Subject to the provisions of this Act, and unless otherwise directed by the Speaker, the Secretary shall be the accounting officer charged with the collection, receipt, custody and payment of moneys for the services of Parliament, as well as the receipt, custody and control of property acquired for the administration of Parliament, and the Secretary shall keep proper accounts of all moneys received and paid out by him, and of all his financial transactions.

(3) The Secretary shall requisition the moneys required for the services of Parliament on the Treasury.

(4) The Secretary shall maintain at a deposit-taking institution registered as such under the Deposit-taking Institutions Act, 1990 (Act 94 of 1990), and approved by the Speaker an account into which shall be deposited all moneys received by him and from which all payments shall be made by him, and the Secretary may authorize a person or persons in the employ of Parliament to sign the necessary cheques for the said payments.

(5) Notwithstanding anything to the contrary contained in any law, the Speaker may approve that a saving under a main division of the vote Parliament in an appropriation Act may be applied towards the defrayment of excess expenditure under another main division, or of expenditure under a new main division of that vote: Provided that amounts appearing in 'Column 2' of a schedule to such an appropriation Act in respect of the said vote shall not be exceeded, and the savings thereon shall not be applied for a purpose other than that for which the money was granted as indicated in such schedule.

(6) At the end of each financial year the Secretary shall cause statements of account to be prepared showing in detail the moneys received by him, and the expenditure incurred by him during the financial year in question.

(7) At the end of a financial year the Secretary shall surrender to the Treasury for redepositing in the Exchequer Account, any unexpended balance of moneys received from the Treasury.

(8) The provisions of sections 7, 14, 33 and 34 of the Exchequer Act, 1975 (Act 66 of 1975), and no other provisions of Chapters I, II, III and V of that Act, shall mutatis mutandis apply in respect of the services, vote, accounts, moneys and property of Parliament, and in such application-

(a) any reference in sections 14, 33 and 34 to an accounting officer shall be deemed to be a reference to the Secretary;

(b) any reference in section 33 (1) (c) to the Treasury shall be deemed to be a reference to the Speaker;

(c) any reference in section 34 to the responsible Minister and the Treasury shall be deemed to be a reference to the Speaker; and

(d)any reference in section 34 to a person who is or was in the employ of a department of State, shall be deemed to be a reference to a person who is or was in the employ of Parliament.

(9) The accounts of Parliament shall, subject to the provisions of subsection (1), be investigated, examined and audited by the Auditor-General, and in the carrying out of such an audit the provisions of sections 5 (1), 5 (7) (a) and (b) and 5 (8), 6 (1) (a) and (2), 7 and 14 (1) of the Auditor-General Act, 1989 (Act 52 of 1989), shall mutatis mutandis apply, and in such application the references in sections 5 (1) and 6 (1) (a) to an accounting officer and to persons in the public service shall be deemed to be references to the Secretary and to persons in the employ of Parliament, respectively.

(10) For the purposes of this section the expressions-

(a) 'Auditor-General' in subsection (9);

(b) 'Exchequer Account' in subsection (7);

(c) 'financial year' in subsections (6) and (7);

(d) 'Treasury' in subsections (3) and (7); and

(e) 'vote' and 'appropriation Act' in subsection (5),

shall bear the respective meanings assigned thereto in section 1 (1) of the Exchequer Act, 1975.

 

[a91y1963s32]32 Imprisonment for contravention of Act

(1) Any person adjudged guilty of a contravention of this Act may, in addition to any other penalty to which he is liable under this Act or any other law, be sentenced to imprisonment for such period during the then current session of Parliament as a House or the Houses, whichever enquires into such contravention, may determine.

(2) A person sentenced to imprisonment in terms of subsection (1) shall be imprisoned under warrant given under the hand of the Speaker.

(3) The provisions of sections thirteen and fifteen shall apply to warrants given under this section.

 

[a91y1963s33]33 Prosecution before courts of law for contraventions of Act and recovery of penalties

(1) The attorney-general within whose area of jurisdiction a contravention of or offence under this Act has taken place may, if requested to do so by resolution of a House or the Houses, cause any person accused of such contravention or offence to be summonsed for preparatory examination before the court of competent jurisdiction over such person for such examination with a view to prosecution before the appropriate provincial or local division of the Supreme Court of South Africa, and any such division shall in such a case have and exercise the powers and jurisdiction conferred by this Act or any other law.

(2) All penalties and other moneys payable under this Act may be recovered in the provincial or local division of the Supreme Court of South Africa having jurisdiction, at the suit of the Minister of Justice, if authorized by a House or the Houses to take proceedings for the recovery thereof.

(3) Any sum so recovered and any fine imposed for a contravention of or offence under this Act which is recovered shall be paid into the Consolidated Revenue Fund.

 

[a91y1963s34]34 Application of Act in case of committee meeting beyond seat or during recess of Parliament

In so far as may be necessary for the achievement of the objects of this Act in the case of a committee which in terms of any authority conferred upon it performs its functions beyond the seat of Parliament or while Parliament is prorogued, the provisions of this Act shall apply as if the premises in which the committee meets for the performance of its functions were within the precincts of Parliament, or as if Parliament were in session, as the case may be.

 

[a91y1963s35]35 Removal of Secretary from office

The Secretary shall be removable from office only in accordance with a resolution adopted by each of the Houses.

 

[a91y1963s36]36 Extent of privileges and powers of Parliament, members and officers

Save as is otherwise expressly provided by this Act, Parliament, a member and an officer of Parliament, respectively, shall have all such privileges, immunities and powers as at the time of the promulgation of the Constitution were applicable in the case of the House of Assembly referred to in the Republic of South Africa Constitution Act, 1961 (Act 32 of 1961), and any member or officer thereof, and also such privileges, immunities and powers as are from time to time conferred by any law of the Republic.

 

[a91y1963s37]37 Privileges and powers to be part of law

The privileges, immunities and powers of Parliament, a member and an officer of Parliament, respectively, shall be part of the law of the Republic, and it shall not be necessary to plead them, but they shall be judicially noticed in all the courts of the Republic.

 

[a91y1963s38]38 Repeal and savings

(1) Subject to the provisions of sub-section (2) the Powers and Privileges of Parliament Act, 1911 (Act 19 of 1911), is hereby repealed.

(2) Any right acquired, power exercised, obligation or liability incurred or thing done under any provision of the law repealed by sub-section (1), shall be deemed to have been acquired, exercised, incurred or done under the corresponding provision of this Act.

 

[a91y1963s39]39 Short title

This Act shall be called the Powers and Privileges of Parliament Act, 1963.

 

 

ANNEXURE D

BIBLIOGRAPHY

This bibliography list many, but not all, of the materials used in compiling the Report.

BOOKS

Abraham & Hawtrey's Parliamentary Dictionary (Butterworths, London: 1970)

Ameller, M Parliaments: A comparative study on the structure and functioning of representative institutions in fifty-five countries (Cassell, London)

Bourinot, J G Parliamentary Procedure and Practice in the Dominion of Canada, with historical introduction and an appendix 3ed (Canada Law Book Co, Toronto: 1903)

Browning, A R (ed) House of Representatives Practice (Australia) 3ed

Burchell, J M The Law of Defamation in South Africa (Juta, Cape Town: 1985)

Butterworths Books on Screen Constitutional Law, Vol 5 part 3 1995-1996

Campbell, E Parliamentary Privilege in Australia (Melbourne Univ Press)

Carle, R H Rules of the House of Representatives (US: 1995)

Clough, EMO The South African Parliamentary Manual (Whittaker & Co, London: 1909)

Congressional Quarterly's Guide to Congress 4ed

De Smith, S & R Brazier Constitutional and Administrative Law 6ed (Clays Ltd: 1989)

Evans, H (ed) Odgers' Australian Senate Practice 8ed (1997)

Griffith, J A G & M Ryle Parliament: Functions, Practice and Procedures, Chapter 3: Parliamentary Privilege (Sweet and Maxwell, London: 1989)

Hansen, J V et al Rules: Committee on Standards of Official Conduct US House of Representatives (1997)

Kashyap, S C (ed) Practice and Procedure of Parliament (with particular reference to Lok Sabha) 4ed (Metropolitan for Lok Sabha Secretariat: 19 )

Kilpin, R Parliamentary Procedure in South Africa: A short guide to the Rules and Practices of the Union House of Assembly 3ed (Juta & Co Ltd: 1955)

Maingot, J Parliamentary Privilege in Canada (Butterworths)

McGee, D Parliamentary Practice in New Zealand 444

More, SS Practice and Procedure of Indian Parliament (Thacker & Col Ltd, Bombay)

Nickels, I B 'Words Taken Down: Unparliamentary Language in the House' (CRS Report for Congress: 1990)

 

Parliaments of the World: A comparative reference Compendium 2ed The International Centre for Parliamentary Documentation of the Inter-Parliamentary Union (Gower)

Redlich, J, A E Steinthal & C Ilbert The Procedure of the House of Commons: A Study of its History and Present Form Vols II & III (Archibald Constable & Co. Ltd: 1903)

Reid, GS & M Forrest Australia's Commonwealth Parliament 1901-1988 (Melbourne University Press: 1989)

The American Society of Legislative Clerks & Secretaries Mason's Manual of Legislative Procedure (West Publishing Co., St Paul, Minnesota: 1989)

Wilding, N & P Laundy An Encyclopaedia of Parliament 4ed

 

ARTICLES

'Court overrules Parliament in Cook Island privilege case' The Parliamentarian October 1994, p 260

'Personal Allusions and Unparliamentary Expressions' Rules governing the contents of Speeches 380

Amer, M 'House Committee on Standards of Official Conduct: A Brief History of its Evolution and Jurisdiction' (CRS Report for Congress: 1997)

Amer, M 'Sections of House Committee on Standards of Official Conduct: A brief history of its evolution and jurisdiction' (CRS Report for Congress: 1997)

Article 19 'An Agenda for Change: The right to freedom of expression in Sri Lanka' October 1994

Best, R 'Freedom of speech in Parliament: Constitutional safeguard or sword of oppression?' (1994) 24 Victoria University of Wellington Law Review 91

Bradley, A W 'Parliamentary Privilege, Zircon and National Security' 1987 Public Law 488

Campbell, E 'Investigating the Truth of Statements Made in Parliament. The Australian Experience' 1998 Public Law 125

Chatterjee, SS 'Privilege: Preserving Parliament's traditional rights' The Parliamentarian

Chibesakunda, NM 'Privileges, immunities and the powers of Parliament' The Parliamentarian October 1994, p 238

Chibesakunda, NM 'Separation of Powers: The power relationships between Parliament and the judiciary in Zambia' The Parliamentarian April 1997, p 181

Davis, R K F 'Parliamentary Privilege - Parliament and the Western Australian Royal Commission (1993) 67 The Australian Law Journal 671

Devenish, GE 'The "imperial presidency" and the powers and privileges of parliament' (1988) 3 SA Public Law 167

Goldblatt, RE 'The power to punish for "Breach of Privilege": A juridical anachronism' SALJ 13

Griffiths, C 'In Defence of Parliamentary Privilege' (1994) 24 Western Australian Law Review 247

Harders, C 'Parliamentary Privilege - Parliament versus the Courts: Cross-examination of Committee Witnesses' (1993) 67 The Australian Law Journal 109

Harris, M 'New Zealand House of Representatives: Natural justice procedures and select committees' (1998)

Harris, M 'New Zealand House of Representatives: Natural justice procedures and select committees' (1998)

Harris, M 'Sharing the Privilege: Parliamentarians, Defamation, and Bills of Rights' (1996) 8 No.1 Auckland University Law Review 45

Inglis, K 'Parliamentary Speech' (1996) 12 Australia Journal of Law and Society 14

Joseph, Philip A 'Parliamentary Privilege: Cushing v Peters 1996 New Zealand Law Journal 287

Kahn, E 'Constitutional and administrative law' Annual Survey of SA Law 1

Leopold, P M 'Parliamentary privilege and the broadcasting of Parliament' (1989) 2 Legal Studies 53

Lock, G F 'Labour Law, Parliamentary Staff and Parliamentary Privilege' (1983) 12 Industrial Law Journal 28

Lock, G F 'Parliamentary Privilege and the Courts: The Avoidance of Conflict' 1985 Public Law 64

Makower, A & P Helme 'Privilege and the Canadian Charter of Rights and Freedoms' (1993) 61 The Journal of the Society of Clerks-at-the-Table in Commonwealth Parliaments 56

Marshall, G 'The House of Commons and its Privileges' in Walkland, SA The House of Commons in the Twentieth Century: Essays by Members of the Study of Parliament Group 204 (Clarendon Press: 1979)

McGee, D 'Freedom of Speech - the Case of Prebble v Television New Zealand Limited' 63 The Table 1885

McGee, D Parliamentary Practice in New Zealand, Ch 43: Parliamentary Privilege (Government Printer, Wellington: 1994)

Nickels, I B 'Words taken down: Unparliamentary language in the House' (CRS Report for Congress: 1990)

Palmer, G 'Parliament and privilege: Whose justice?' 1994 New Zealand Law Journal 325

Pelletier, M R 'Privilege in the Canadian Parliament' The Parliamentarian 143 (19 )

Rosenberg, M 'Investigative oversight: An introduction to the law, practice and procedure of congressional inquiry' (CRS Report for Congress: 1995)

Rosenberg, M 'Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry' (CRS Report for Congress: 1995)

Simon, The Rt Hon the Lord, of Glaisdale 'The crisis of the Bill of Rights' The Parliamentarian 121 (April 1997)

 

CASES

South Africa

 

Bloem and Another v State President of the Republic of South Africa and Others 1986 (4) SA 1064 (O)

 

De Lille and Another v The Speaker of the National Assembly High Court of South Africa (CPD) Case No. 760/98 (unreported)

 

Kahn v Time Incorporated and Another 1956 (2) SA 580 (W)

 

Nasopie en Andere v Minister van Justisie en Andere (2) 1979 (4) SA (NC)

 

National Media Limited and Others v Bogoshi Nthedi Morole Supreme Court of Appeal 29 September 1998, Case No. 579/ 96 (unreported)

 

Poovalingham v Rajbansi 1992 (1) SA 283 (A)

 

Strydom v Derby-Lewis 1988 (4) SA 513 (T)

 

Foreign

 

Attorney General v Chipeta [1996] 1 LRC (Malawi Court of Appeal)

 

Attorney-General v Nadesan (1978-80) Sri Lanka Law Reports 377 (SC)

 

Attorney-General v Siriwardena (1978-80) Sri Lanka Law Reports 377 (SC)

 

C O Williams Construction Ltd v Blackman and Another [1990] LRC (Const) (Barbados SC)

 

Castells v Spain 14 EHRR 445 (1992)

 

Chikerema and Others v The United African National Council and Another 1979 (4) SA (ZS)

 

D A Carty v Leroy Rogers Eastern Caribbean Supreme Court in the High Court of Justice Anguilla Circuit (Suit No. 83 of 1994) dated 27 February 1995

 

Demicoli v Malta 1991 EHRR 47

 

Dungey v McCallum 3 NZLR 551 [1993]

 

Fotofili and Others v Siale [1988] LRC (Const) 102 (Privy Council on appeal from Tonga Court of Appeal)

 

In re Under Art 143, Constitution of India (1965) All India Reporter 745 (Sct)

 

Maha v Kipo [1994] (Papua New Guinea Supreme Court)

 

Mutasa v Makombe NO 1997 (6) BCLR 841 (ZS)

 

Nkomo and Another v Attorney-General, Zimbabwe, and Others 1994 (3) SA 34 (ZS)

 

Pepper (Inspector of Taxes) v Hart (1993) AC 593 (HL)

 

Rost v Edwards & others [1990] 2 All ER 641 QBD

 

Said W Musa v The Sepaker of the House of Representatives and Others (Supreme Court of Belize: 22 January 1998)

 

Sanft v Fotofili [1988] LRC (Const) 110 (Privy Council on appeal from Tonga Court of Appeal)

 

Smith v Mutasa and Another NNO 1990 (3) SA 756 (ZS)

 

Speaker of the House of Assembly v Canadian Broadcasting Corp et al (New Brunswick Broadcasting Corp v Nova Scotia) 100 DLR (4th) 212 (SC)

 

Television New Zealand Ltd v Prebble 3 NZLR 513 [1993]

 

Wright and Advertiser Newspapers Limited v Lewis 53 South Australian State Reports 416 (1990)

 

OTHER

'Commonwealth Newsletter' (House of Commons: July 1989)

'Parliamentary Privilege' House of Representatives (Australia) Factsheet (1994)

'Sources of Procedural Authority' ex House of Representatives Practice 3ed (Australia: 1997)

'Standing Order' ex Abrahams & Hawtrey Parliamentary Dictionary 3ed (London: 1970)

'Standing Order 26: Whenever any matter of privilege arises, it shall be taken into consideration immediately' ex MacMinn, E G Parliamentary Practice in British Columbia 3ed (1997)

'Unparliamentary Expressions' ex List of Expressions Declared Unparliamentary (SA Parliament: 1993)

Defamation Bill (HL) 7 May 1996 18

Gauteng Provincial Legislature 'Rules Committee: Submission: 'Differences between a disciplinary committee and a privileges committee' (1997)

Parliament (Powers and Privileges) Act (Sri Lanka)

Parliamentary Privileges Act No 21 of 1987 (Australia)

Powers and Privileges of Parliament Act, no. 91 of 1963 (South Africa)

Rosenberg, M 'Memorandum regarding the validity of Committee receipt and dissemination of Grand Jury materials' to Henry Hyde, Chairman - House Judiciary Committee (1998)

Rosenberg, M 'Validity of Committee Receipt and Dissemination of Grand Jury Materials' Memo to The Hon Henry Hyde, October 2, 1998

 

PARLIAMENTARY PUBLICATIONS

 

Effective Select Committee Membership: A Guide for Chairpersons and Members of Parliament Office of the Clerk of the House of Representatives (New Zealand: 1997)

House of Lords Official Report (Tuesday 2 April 1996; Tuesday 16 April 1996; 7 May 1996; 21 May 1996)

 

Joint Rules of Parliament (South Africa: 1997)

 

Joint Select Committee on Parliamentary Privilege: Final Report (Australia) (October 1984)

 

Preliminary Rules of the National Council of Provinces (NCOP: 1997)

 

Report from the Select Committee on Parliamentary Privilege (UK) (Her Majesty's Stationery Office: 1967)

 

Report of the Joint Committee on Parliamentary Privilege (South Africa) (1988)

 

Rules of the Committee on Standards of Official Conduct (1997)

 

Rules of the House of Representatives: relevant sections: effective for the 104th Congress (1995)

 

Standing Orders of the House of Representatives (New Zealand: 1996)

 

Standing Rules for the National Assembly and for Joint Business and Proceedings of the National Assembly and the Senate (South Africa: 1995)