REVIEW OF THE POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES ACT, 2004 (PPIPPLA)- Sections highlighted for Possible Review Date: 29 November 2017

Purpose of presentation Our instruction: following the last presentation made to the Committee, which only focused on the provisions of PPIPPLA directly impacted on by the majority judgment in the DA v the Speaker of the NA, CCT 86/15 (“the DA judgment”), we were tasked with reviewing the entire Act, beyond the implications of the DA judgment, with a view to highlighting other sections of the Act for possible review and amendment.

Purpose of presentation cont Process followed: Perused relevant judgments that either dealt with, challenged or referred to PPIPPLA and those that dealt with parliamentary free speech; Requested input via email: from relevant officials within Parliament; from the legal advisers in the provincial legislatures; (but very limited input received); Requested input via the Chairperson from political parties (no responses received);

Purpose of presentation To highlight sections of PPIPPLA that could possibly raise challenges, are vague or ambiguous, or that merely require correction – for consideration by the Committee. The sections highlighted are based on our own views and observations and also the majority judgment in the applicable DA judgment as well as the input received from provinces.

Recap of key findings in the DA judgment The word “PERSON” in the Act includes a member- → unless the context dictates otherwise (section 5 of Act); → or where the provision specifically excludes a member (section 25(1)). Parliamentary free speech contained in section 58(1)(a) and 71(1)(a) are subject only to RULES AND ORDERS (and may not be regulated in an ACT).

Recap cont CC held that as section 11 allows for the arrest of a member, it constitutes an infringement of parliamentary free speech (51(1)(a)) and directly infringes the immunities from criminal proceedings, arrest and imprisonment (s 51(1)(b)). Section 11 of the Act was therefore found to be constitutionally invalid to the extent that it applies to members. The CC read in the words “other than a member” after the word “person” in section 11.

Sections to review Section 7(e) Prohibited acts in respect of Parliament and members 7. A person may not— (e) while Parliament or a House or committee is meeting, create or take part in any disturbance within the precinct; Comment: Section 7(e) must be read with sections 13 (Conduct constituting contempt of Parliament) and 27 (Offences). Section 13 provides that a member is guilty of contempt of Parliament if the member, inter alia, contravenes section 7 (which includes 7(e) – creating or taking part in a disturbance); Section 27 provides that a person, including a member, who contravenes section 7 commits an offence and is liable to a fine or to imprisonment for a period not exceeding 3 years or to both a fine and the imprisonment.

Sections to review – Cont. Hence, the word “person” in section 7 includes a member. It must be noted that “precinct” as described in the Act, includes the area of land and every building or part of a building under Parliament’s control including, inter alia, the chambers; forecourts, yards or gardens outside the chambers; committee rooms and other meeting places; every other building used in connection with the proceedings of Parliament where a House or a committee convenes. Parliamentary free speech is protected for what is said by a member only in the Assembly, the Council or committee meeting. Section 7(e), read with section 13 and 27, can be seen as a limitation on, or regulating parliamentary free speech contained in section 58(1) and section 71(1) where such disturbance occurs in the Assembly, the Council or a committee in an ACT.

Sections to review cont Reasons: The effect of section 13, which provides that a member may be in contempt of Parliament for creating or taking part in a disturbance (iow contravening section 7(e)), is that it limits a members freedom of speech in an ACT – this should be contained in the RULES and ORDERS where such disturbance occurs in a House or a committee. The effect of section 27 is that a member can be held criminally liable for creating or taking part in a disturbance – this impacts on the freedom of speech (which should be regulated in the RULES and ORDERS and not in an Act where such disturbance occurs in a House or a committee) and also impacts on the immunities protected in section 58(1)(b) and 71(1)(b) of the Constitution.

Sections to review – Cont. Option 1 - Proposed amendment and wording for section 7: Delete section 7(e) from the section 7; Renumber section 7 as section 7(1); Insert a new section 7(2) and 7(3) to read as follows: 7(2) A person, other than a member, may not while Parliament or a House or committee is meeting, create or take part in any disturbance within the precinct; 7(3) (a) A member may not while Parliament or a House or committee is meeting, create or take part in any disturbance within the precinct. (b) The disturbance referred to in paragraph (a) does not include any act which amounts to the exercise of freedom of speech in the Assembly, in the Council or its committees as contemplated in sections 58(1) or 71(1) of the Constitution. Option 2 – amend definition of “disturbance” in section 1 to exclude any act that amounts to the exercise of freedom of speech in the Houses or committees as contemplated in sections 58(1) and 71(1).

Sections to review – Cont. Section 7(f)(i) Prohibited acts in respect of Parliament and members 7. A person may not— ( f ) fail or refuse to comply with an instruction by a duly authorised staff member regarding— (i) the presence of persons at a particular meeting in the precincts; or Comment: Section 7(f)(i) appears to be vague. It is not clear what is meant here and which person is being referred to and when this will be applicable.

Sections to review – Cont. Persons creating disturbance  11. A person, other than a member, who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services. This provision is the “read-in” provision provided by the Constitutional Court in the DA judgment. It is proposed that section 11 be amended as per the court’s read-in.

Sections to review – Cont. Section 12(5)(f) Disciplinary action against members for contempt 12 (5)  When a House finds a member guilty of contempt, the House may, in addition to any other penalty to which the member may be liable under this Act or any other law, impose any one or more of the following penalties: (a) A formal warning; (b) a reprimand; (c) an order to apologise to Parliament or the House or any person, in a manner determined by the House; (d) the withholding, for a specified period, of the member’s right to the use or enjoyment of any specified facility provided to members by Parliament; (e) the removal, or the suspension for a specified period, of the member from any parliamentary position occupied by the member; ( f ) a fine not exceeding the equivalent of one month’s salary and allowances payable to the member concerned by virtue of the Remuneration of Public Office Bearers Act, 1998 (Act No. 20 of 1998); (g) the suspension of the member, with or without remuneration, for a period not exceeding 30 days, whether or not the House or any of its committees is scheduled to meet during that period.  Comment: It is suggested that the word “or” be added at the end of paragraph (f).

Sections to review – Cont. Liability for acts done under the authority of Parliament 22. No person is liable in damages or otherwise for any act done in good faith in terms of this Act, or under the authority of a House or committee and within the legal powers of the House or committee, or under any order or summons issued by virtue of those powers. Comment: Section 22 contains the phrase “liable in damages…”. The phrase more widely used in SA legislation is “No person is liable for damages…”. (Phrase “liable in damages” is used in the Fencing Act, Act No. 31 of 1963). Suggest that the phrase be changed to “liable for damages.”

Sections to review – Cont. Section 23(2)(a) Civil proceedings against Parliament 23. (2) For the purposes of subsection (1), where appropriate, a reference in the State Liability Act, 1957, to the Minister of a department must, where the proceedings are against— (a) Parliament or a House, be construed as a reference to the Speaker or the Chairperson, or to both the Speaker and the Chairperson, as the case requires; (b) a committee, be construed as a reference to the chairperson of the committee. Comment: It is suggested that the word “or” be added at the end of paragraph (a).

Sections to review cont Section 24(a) Duty of criminal courts in respect of members 24. When a member of the National Assembly or a permanent delegate to the National Council of Provinces has been convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine – (a) the registrar or clerk of the court sentencing that person must in writing inform the Speaker or the Chairperson, as the case requires, of the nature of the offence and sentence imposed; and (b) …… Comment: - It is suggested that the word “person” in section 24(a) be changed to “member or that permanent delegate” so that the provision is clear.

Sections to review – Cont. Protection of members of public. 25. (1)  A person, other than a member, who feels aggrieved by a statement or remark made by a member or a witness in or before a House or committee about that person, may submit a written request to the Secretary to have a response recorded. (2)  The committee referred to in section 12(2) must, subject to the standing rules, consider the request and, if approved, publish the response of the person in the appropriate parliamentary paper. Comment: It is not clear as to who the “person” in section 25(2) refers to – does it refer to the member, the witness or the aggrieved person?

Sections to review – Cont. NA Table explained the purpose of this section is to afford members of the public who feel aggrieved by certain statements or allegations made against them by members during debates in the House or Committees, an opportunity to submit their responses to these statements or allegations to Parliament. In other words, it provides a form of a redress mechanism, and an opportunity for the `other side to be heard’. It is suggested that the section 25(2) be redrafted to read as follows: Protection of members of public. 25. (1)  A person, other than a member, who feels aggrieved by a statement or remark made by a member or a witness in or before a House or committee about that person, may submit a written request to the Secretary to have a response recorded. (2)  The committee referred to in section 12(2) must, subject to the standing rules, consider the request and, if approved, publish the response of the aggrieved person in the appropriate parliamentary paper.

Sections to review – Cont. Section 28(2)(e) Application of Act to provincial legislatures 28. (2) In such application, a reference in those sections to— (a) Parliament or a House, must be construed as a reference to the provincial legislature concerned; (b) a committee, must be construed as a reference to a committee of the provincial legislature; (c) the Speaker or the Chairperson, must be construed as a reference to the Speaker of the provincial legislature; (d) a member, must be construed— (i) as a reference to a member of the provincial legislature; and (ii) except in sections 12 and 13, as including a permanent delegate of the province to the National Council of Provinces; (e) the Secretary, must be construed as a reference to the Secretary of the provincial legislature; (f) standing rules, must be construed as a reference to the rules made by the provincial legislature in terms of section 116 of the Constitution. Comment: It is suggested that the word “and” be added at the end of section 28(2)(e).

Sections to review – Cont. Section 29(2)(a) Civil proceedings against provincial legislatures 29. (2) For the purposes of subsection (1), where appropriate, a reference in the State Liability Act, 1957, to the Minister of a department must, where the proceedings are against— (a) a provincial legislature, be construed as a reference to the Speaker of the legislature; (b) a committee of a provincial legislature, be construed as a reference to the chairperson of the committee. Comment: It is suggested that the word “or” be added at the end of paragraph (a).

Sections to review – Cont. Section 30(a) Duty of criminal courts in respect of members of provincial legislatures. 30. When a member of a provincial legislature has been convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine— (a) the registrar or clerk of the court sentencing that person must in writing inform the Speaker of the provincial legislature of the nature of the offence and the sentence imposed; and (b) …………. Comment: It is suggested that the word “person” in section 30(a) be changed to “member” so that the provision is clearer.

Sections to review – Cont. Short title 32. This Act is called the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2003. Comment: The Act Number is “Act No. 4 of 2004”. The Act was gazetted in June 2004. It is suggested that the year “2003” in section 32 be corrected to “2004” so that it is consistent with the Act number and does not cause confusion.

Comments received Section 3 and 28: A comment was received that section 3 of the PPIPPLA also be made applicable to the provincial legislatures by including reference thereto in section 28. Section 3 of PPIPPLA provides: “3. The Speaker and the Chairperson, subject to this Act, the standing rules and resolutions of the Houses, exercise joint control and authority over the precincts on behalf of Parliament.” Section 28 provides: “28. (1) Section 2, 4, 5, 7, 8, 9, 10 ,11, 12, 13, 18, 19 , 20, 21, 22, 25, 26 and 27 apply, with the necessary changes, to provincial legislatures as well.” Comment: It is not clear as to why section 3 was omitted from being made applicable to the provincial legislatures. There would be no harm UNLESS there are reasons for its exclusion.

Comments received cont Section 12: A comment was received to make provision for an internal appeals mechanism and appeals process. Clarity was sought from the provincial legislature that proposed this to explain what they envisaged and to motivate for the need thereof. Comment: The House as a collective would take a decision in terms of section 12. There is no higher decision-making body within Parliament to hear an appeal.

Comments received cont Section 12 – standing committees: A comment was received that small legislatures cannot establish a standing committee contemplated in section 12. It is not always practical for a provincial legislature to have a standing committee dealing with matters provided for in section 12. In small legislatures, in order to avoid conflicts of interest, the membership of a disciplinary committee must often be changed each time a disciplinary matter is heard. Some legislatures may, of course, choose to have standing committees. It was suggested that the type of committee to be used is a matter to be determined by each legislature as an internal arrangement (as provided for in section 116 of the Constitution). Proposal: one way to address this is to include a subsection into section 28 which reads as follows: “28(3) – For the purposes of section 12, a provincial legislature may choose to either appoint a standing committee or establish an ad hoc committee.”

Conclusion These are merely sections highlighted for possible review by the Committee. Once Committee decides on which sections to amend – then consideration will be given to the most appropriate manner in which to amend the relevant sections of the Act in an Amendment Bill and also include any consequential amendments.

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