MEMBER OF LEGISLATIVE BODY’S FREEDOM OF SPEACH

DEMOCRATIC ALLIANCE v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS 2015 (4) SA 351 (WCC)
Constitutional law — Legislation — Validity — Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2000, s 11 — Arrest and removal of any person creating or joining disturbance during parliamentary, house or committee sittings — Provision violating Constitution by allowing arrest of members for what they may say at such sittings — Constitution, ss 58(1) and 71(1).
Parliament — Members — Privileges — Constitutional right to freedom from arrest for anything said in National Assembly or Council of Provinces or any of their committees — Violated by provision in s 11 of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2000 allowing arrest and removal of any person for what they may say at such sittings — Constitution, ss 58(1) and 71(1).

Section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2000 (the Act) allows the Speaker or the Chairperson of the National Council of Provinces (or a person designated by them) to order ‘a staff member or a member of the security forces’ to arrest and remove any person creating or taking part in a disturbance during parliamentary, house or committee sittings.
Section 58(1)(a) of the Constitution affords cabinet members, deputy ministers F and members of the National Assembly (the NA) a right to freedom of speech in the NA and its committees; and s 58(1)(b) protects such members against inter alia arrest or imprisonment or damages ‘for anything they have said in, produced before or submitted to the Assembly or any of its committees’. Delegates to the National Council of Provinces, participating local government representatives and members of the national executive are afforded the same privileges and powers by s 71 of the Constitution.
These constitutional privileges are violated by s 11 of the Act to the extent that it permits a member to be arrested for what he or she may say on the floor of a House. Because a member may not be arrested under s 11 if the conduct that led to the arrest is protected under ss 58(1)(b)and 71(1)(b), the most appropriate remedy to bring s 11 within constitutional bounds would be notional severance — leaving the text unaltered but limiting the extent of its application by subjecting it to a condition. The Western Cape Division of the High Court so held in an application challenging the constitutional validity of s 11 of the Act. Accordingly it declared s 11 of the Act inconsistent with the Constitution and invalid ‘to the extent that it [permitted] a member to be arrested for conduct that [was] protected by ss 58(1)(b) and 71(1)(b) of the Constitution’. (This declaration was suspended for a period of 12 months in order for Parliament to remedy the defect, and was referred to the Constitutional Court for confirmation.)

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