Removing MPs from Parly ‘inconsistent with Constitution’

The Western Cape High Court on Tuesday ruled that the Speaker of Parliament may not have MPs arrested on the floor of the house as this violated their right to free speech. In response to an application by the Democratic Alliance, Judge Andre le Grange ruled that section 11 of the Powers and Privileges Act ran counter to the parliamentary privileges enshrined in the Constitution and gave the legislature 12 months to amend the law.

Le Grange found that the section “in the true sense of the word violates a member’s constitutional privilege to freedom of speech and freedom from arrest”.

“The provision in section 11 is overbroad and as a result constitutionally flawed.”

Section 11 was memorably invoked by Speaker Baleka Mbete and National Council of Provinces Thandi Modise on February 12 to send police into a joint sitting of Parliament ahead of the state of the nation address to forcibly remove all MPs present from the Economic Freedom Fighters.

It was the second time in four months that Mbete had resorted to calling on police to clear the EFF benches and resulted in a fistfight between riot police and MPs.

The DA sought a declaratory ruling that section 11 was unconstitutional and could not be applied to members of the legislature, but only to any ordinary person who disrupted a sitting.

It argued that the provision not only constituted a severe infringement of MPs’ right not to be arrested or sued for anything they say in the chamber but also violated the separation of legislative and executive powers.

Advocate Jeremy Gauntlett appeared for Parliament and argued that the proper reading of section 11 was that its reference to ”a person” must include an MP because if this were not so it would undermine the authority of the institution. He added that the intervention of the police when MPs disrupted a sitting “rather facilitates the proper functioning of Parliament as opposed to impeding it”.

Sean Rosenberg, acting for the DA, contended that section 11 lacked constitutionality because the supreme law made it plain in sections 58 and 71 that MPs cannot be arrested or sued for anything they said or which flowed from a pronouncement of theirs in the legislature.

Le Grange said he could not fault Rosenberg’s argument, terming it “far more plausible and constitutionally acceptable than the contention made by Mr Gauntlett”. He rejected Gauntlett’s further argument that the National Assembly and NCOP would be impeded in its functions and members would be allowed to disrupt sittings with impunity if section 11 were not allowed to stand.

“Parliament has more than sufficient tools to maintain order in its precincts. It has the power to hold members in contempt,” the judge said, and added that section 4 of the same law allowed security forces to enter Parliament and take action to prevent danger to life or damage to property.

The judge suspended his ruling for 12 months to give Parliament time to amend this section of the law. However, he ordered the remedy of a notional severance which leaves the text unchanged in the interim but limits its application in that an MP may not be arrested for any action protected under sections 58 and 71 of the Constitution.

Section 58 (b) (i) protects MPs from arrest for anything they say in the National Assembly and its committees, and section 71 extends the same protection to members of the National Council of Provinces.

DA council chairperson James Selfe said the party was “delighted” with the judgment.

“It is the outcome we wanted because we believed that it was highly offensive to the Constitution.”

Selfe said he did not expect Parliament to appeal the ruling — delivered in one of 16 cases of DA litigation currently before the courts — because “it is quite clear”.

Le Grange did not pronounce on whether calling police into Parliament violated the separation of powers, deeming it unnecessary given his ruling on the first part of the party’s application. He awarded costs in favour of the DA. – ANA


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