Another week, another court case, another ANC defeat

Chairperson Thandi Modise said Julius Malema had used unparliamentary language, but the appeal court found her reasoning to be critically flawed. (David Harrison, M&G)

Chairperson Thandi Modise said Julius Malema had used unparliamentary language, but the appeal court found her reasoning to be critically flawed. (David Harrison, M&G)

Another week, yet another defeat in the courts for the ruling party. This time, it was indirect, by way of a judgment of the Supreme Court of Appeal, which dismissed an appeal from the chairperson of the National Council of Provinces. The case dealt with Economic Freedom Fighters (EFF) leader Julius Malema’s ejection from Parliament after the following exchange (reflected in Hansard, the parliamentary proceedings report):

Malema: “The president said a minimum wage shall be investigated.
There is no need to investigate. This House must show leadership and courage. The workers have already shown the way. For five months now, workers in the platinum belt have been on strike, which demonstrates their genuine determination. They were striking for R12 500, when the ANC massacred 34 of them two years ago for doing so. In honour of those who died in Marikana, let this House legislate for R12 500. This will be a sign of remorse and regret for the Marikana massacre. We also demand the establishment of a parliamentary commission on the conditions and salaries of mineworkers, including the auditing of the financial books …”

ANC MP Baleka Radebe rose on a point of order: “The speaker said the ANC government massacred people two years ago. Is that parliamentary? Is there any proof of that? Could you rule on that, chairperson?”

Malema was asked to withdraw his statement but refused. Chairperson Thandi Modise then ruled on the issue, a ruling that went against Malema. He was found to have used unparliamentary language and was thus required to withdraw his statement. When he refused, he was ordered to leave Parliament.

In what is now par for the contemporary political course, the EFF approached the high court on the matter. It ruled in his favour. On appeal, the appeal court carefully examined the basis of the chairperson’s ruling, in which she said: “I made it clear that the statements which I considered unparliamentary were those which suggested that the government, which is made up of members of the House, deliberately decided to massacre the people of Marikana. I went on to say that this did not only impute improper motives to those members of the House, but also accused them of murder.”

National Council of Provinces chair Thandi Modise. (David Harrison, M&G)

The appeal court found that this reasoning was critically flawed. Writing for a unanimous court, Justice Visvanathan Ponnan said: “It is plain that his [Malema’s] primary target was the ruling party, not members of Parliament. On any sensible interpretation of his words, he was criticising the government and its ruling party for the conduct of the police at Marikana. He did not target members of Parliament, either individually or collectively.”

Ponnan went on to deliver a stinging observation: “The implication of that [Modise’s] interpretation is that any criticism made against the government is also criticism against individual members of Parliament, who are members of the ANC (or at least the national executive). It means that members of Parliament may no longer freely accuse the government of any improper conduct. On the chairperson’s interpretation of the standing order, criticism of government would always constitute criticism of members of Parliament (and the executive). Such an interpretation serves censorship, not free expression.”

This dismissal of Modise’s appeal to the appeal court raises a couple of important issues. Of greatest significance is the finding that, far from protecting robust political debate between parties, the presiding officers apply a narrow scope to free expression in debates in Parliament when the ruling party is under the verbal cosh. The court focused its attention on the manner in which criticism of the government, when harshly expressed, is shut down on the basis of a tendentious conflation of party, government and members of Parliament – who, it should be noted, are mandated by the Constitution to ensure the executive’s accountability.

It is this inability to see the key differences between the party, the government and Parliament that leads inexorably to a truncated application of freedom of speech for our national representatives in Parliament. It is this flawed understanding, as highlighted in the judgment, that contributes to the speaker in the National Assembly and the chair of the National Council of Provinces failing to promote a Parliament filled with robust and vigorous, but fair, debate.

The judgment, at least by necessary implication, calls into question the quality of legal advice being given to the presiding officers of Parliament. After all, the Modise ruling so eviscerated by Ponnan was presumably prepared for the chairperson by a legal adviser, who should have grasped the essential difference between the government and members of Parliament, yet lamentably failed to do so.

It simply cannot be in the long-term interests of democracy in this country that only one arm of the state, the judiciary, has to take up the task of ensuring adherence to constitutional commitments because the legislature fails to hold the executive accountable – on the basis of fundamental misconceptions.

Serjeant at the Bar

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