Steven Budlender, for the applicants, argued on Monday that even though the event was in the past, “the problem and unlawfulness” of the device went beyond its mistaken use during the address on February 12.
He said the use of the device by security services was unlawful because it was irrational, there was no legal authority to do so, it was in contrary to Parliamentary Power and Privileges Act, and it violated the right to an open Parliament.
The Act stated that security services could only perform any policing function on the precinct with the permission of the Speaker or chair of the National Council Of Provinces, unless there was an immediate danger to a person or property.
Because Parliament and State Security Minister David Mahlobo had admitted that Speaker Baleka Mbete did not know the signal jamming device would be used, it meant that they had failed to get her express permission in terms of the privileges act and its use on the precinct was thus unlawful, he argued.
“Jamming is such an unusual form of security. It directly affects the ability of the public and the media to communicate,” Budlender said.
He believed it necessary for the court to declare its use unlawful because neither Parliament nor Mahlobo had ruled out the possibility of the device being used again in future.
Jeremy Gauntlett, for Parliament, said he had never heard of someone applying for a declaratory order over a mistake.
“It was an abhorrent event which has happened. It has been explained and certainly, as far as the Speaker is concerned, a declaratory order serves no utility.”
He contended that Mbete had authorised security services to “enter upon” and “perform” their policing functions for the purposes of the State of the Nation.
Donald Jacobs, for Mahlobo, argued that the use of “signal disruptors” before the start of the State of the Nation address to protect the president, deputy president and dignitaries against the potential threat of a remote controlled explosive device could never be seen as unlawful.
He said its use during the Sona was a mistake and there was no reason to believe that such a device would be used during open sittings of Parliament in future.
On the applicant’s case he said: “This is a very clear cut of an academic argument, something which is abstract and which has no factual basis. They simply want some sort of advisory opinion.”
Media24, Primedia, the SA National Editors’ Forum and two other parties were also challenging a clause in Parliament’s broadcasting policy that dealt with coverage of unparliamentary behaviour and grave disorder.
The applicants wanted the court to find this clause unconstitutional and invalid, and for Parliament to be instructed to treat incidents of grave disorder in the same way as unparliamentary behaviour.
Presently, the policy gives a broadcasting director the discretion to use occasional wide-angle shots during cases of unparliamentary behaviour.
No provision is made for shots during a grave disturbance and the policy does not define what is considered a grave disturbance.
The full bench of the Western Cape High Court reserved judgment on the overall application on Monday.
The application followed the eviction of Economic Freedom Fighters MPs from the National Assembly during the State of the Nation address, which was not broadcast.
The parliamentary feed that day instead focused on Mbete and National Council of Provinces chairperson Thandi Modise.
Some journalists took cellphone footage of the incident, in contravention of Parliament’s policy, and had protested at the start when they were unable to file stories or use social media on their devices. – News24.com