Sueanne S. Isaac Parliament of RSA Legal Services DEMOCRATIC ALLIANCE VS SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS (CCT 86/15) Sueanne S. Isaac Parliament of RSA Legal Services

JUDGMENT Decision of the CC: Madlanga J for majority (with Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo J concurring). Concurring judgment: Nugent AJ (qualified concurrence). Minority judgment: Jafta J (Nkabinde J concurring).

 OVERVIEW ‘Person’ in section 11, read in the context of PPIPPLA as a whole, was interpreted to include a member of Parliament. Parliamentary free speech is subject only to rules and orders in terms of section 58(1)(a) and 71(1)(a) of the Constitution. Members of Parliament have an absolute immunity from arrest in terms of section 58(1)(b) and 71(1)(b) of the Constitution . Section 11 of PPIPPLA is constitutionally invalid to the extent that it applies to members of Parliament.

MAJORITY JUDGMENT ARREST: The creation of or taking part in a disturbance by a member is a criminal offence in terms of PPIPPLA . The possibility of a member being arrested and subject to criminal processes has a chilling effect on robust speech. And thus this constitutes an infringement of parliamentary free speech. Section 11 directly infringes the immunities from criminal proceedings, arrest and imprisonment enjoyed by members in terms of sections 58(1)(b) and 71(1)(b) of the Constitution.

MAJORITY JUDGMENT REMOVAL OF A MEMBER FOR CAUSING A DISRUPTION To warrant removal from the Chamber, interference or disruption must go beyond what is the natural consequence of robust debate. Interference and disruption that may be sufficient for the removal of a member must be of a nature that hamstrings and incapacitates Parliament from conducting its business.  Even so, there must be no anticipation of resumption of business within a reasonable time.  

CONCURRING JUDGMENT Nugent J agreed with the Majority Judgment that: ‘Person’ in section 11 of PPIPPLA applies to members. Section 11 of the Act, in its application to members, infringes the right of parliamentary free speech and is inconsistent with the Constitution. Proscribed disturbances created by members must be regulated by rules and orders.

  CONCURRING JUDGMENT Nugent J contended that the constitutional prohibition on arrest is wider than what was held in the majority judgment. He was of the view that: Arrest in its ordinary meaning is not confined to arrest with the objective of prosecution but includes seizure or forcible restraint. Legislation that permits physical restraint being placed on members for whatever objective, including mere removal, for what they say in NA or the NCOP offends the Constitution.  The power to ‘arrest’ in section 11 is to enable a member to be seized to remove them from the NA.

  CONCURRING JUDGMENT The prospect of being arrested for criminal prosecution would undoubtedly have a chilling effect on debate.  The prospect of being ‘seized’ or ‘forcibly restrained’, with any objective, would be just as chilling.  The powers conferred by section 11, both to ‘arrest’ and to ‘remove’ a member, whether viewed conjunctively or separately, are constitutionally offensive. This is because any forcible restraint being placed upon a member, if only with the objective of removal, is prohibited by section 58(1)(b). 

MAJORITY JUDGMENT Madlanga J disagreed with Nugent J: ‘Whilst I do not quarrel with the literal and wide meaning the qualified concurrence ascribes to the word “arrest”, I doubt that in section 58(1)(b) “arrest” bears that meaning.  I do not think it includes any forcible restraint, even if not for the purpose of prosecution.  If that were what it meant, a removal from the Chamber in terms of rules and orders made under sections 57(1)(b) and 70(1)(b) would infringe the immunity from arrest contained in sections 58(1)(b) and 71(1)(b).  The upshot of that would be that Parliament would never be able to remove from the Chamber a member causing a disruption.  Needless to say, that would negate the power given to Parliament to: “determine and control its internal arrangements, proceedings and procedures” in terms of sections 57(1) and 70(1); and make rules and orders subject to which members would exercise free speech:’ (para 54)

MINORITY JUDGMENT Jafta J did not agree that the word ‘person’ in section 11 of PPIPPLA includes a member. In his view the section does not apply to members of Parliament and consequently it was not constitutionally objectionable. He reasoned that: ‘Person’ may reasonably be construed to include a member of Parliament. But ‘person’ has different meanings in PPIPPLA indicated by the context of a particular provision. For instance, in section 5, 11, 25 ‘person’ is used differently. In some instances it includes members and in other instances it excludes members. The word ‘person’ in section 11 should be read down so that it excludes members. On this reading, section 11 was constitutionally valid.

MINORITY JUDGMENT INTERPRETATION Legislation must be read through the prism of the Bill of Rights. When the validity of legislation is challenged, the court must examine the objects and purports of the Act and must read provisions, as far as its reasonably possible, in conformity with the Constitution. Legislation may be read down to make it constitutionally compliant: Reading-down is a principle of constitutional interpretation used when legislation is overboard.

MINORITY JUDGMENT Reading-down: ‘The Constitution, in requiring that legislation be read in conformity with it, authorises courts to read legislation restrictively if doing so would bring an overbroad provision within the bounds of the Constitution.’ ‘Where it is reasonably possible to construe a statute in such a way that it does not give rise to constitutional invalidity, such a construction should be preferred to another construction which, although reasonable, would give rise to such inconsistency.’

MINORITY JUDGMENT ‘Person’ in section 11 is used in different contexts and does not bear the same meaning. In the first context ‘person’ refers to someone who creates or participates in a disturbance in Parliament. In the second context ‘person’ refers to someone to whom the power to issue an arrest order is delegated by the Speaker and the Chairperson. That may be a staff member or a member of Parliament. Section 11 is in Chapter 3 of PPIPPLA. Chapter 3 seeks to protect members and Parliament. If ‘person’ in the first part of section 11 includes member, it defeats the objective of protecting members of Parliament. However, reading ‘person’ to exclude members advances the objective of protecting members and Parliament.

MINORITY JUDGMENT Chapter 3 of PPIPPLA seeks to protect Parliament and members by creating offences. However, section 27 (Offences) makes no reference to section 11 and this suggests that its contravention was not regarded as an offence. Section 11 authorises the removal of a person from the precincts. When applied to a member the result would be absurd. If a member is removed from the precincts, they would be prevented from going to their offices and from using other facilities. However, the NA and NCOP has the power to exclude disruptive members from proceedings for limited periods in terms of its rules and orders. Section 11 must be interpreted purposively to protect Parliament and its members by affording members privileges and immunities, but also in a manner that promotes the members’ right to freedom of speech.

MINORITY JUDGMENT The ‘arrest and removal’ in section 11 limits a members’ right to free speech and freedom of security. Arrest is in conflict with section 58(1)(b). It is also inconsistent with privilege of members in section 58(1)(a). Statutory provisions that limit rights must be read through the lens of the Bill of Rights. Section 11 to the extent that it limits a members right to free speech is inconsistent with the Constitution. In terms of section 39(2) of the Constitution, section 11 must be ascribed a narrower meaning to remove the inconsistency and preserve the section. Properly construed, ‘person’ in section 11 of the Act does not include a member. To the extent section 11 authorises the arrest and removal of persons, it does not apply to members. It is therefore not unconstitutional.

. Thank You