1998 (3) SA p430
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Citation
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Case No
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760/98
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Court
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Cape Provincial Division
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Judge
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King Djp, Hlophe J
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Heard
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April 3, 1998; April 6, 1998; April 7, 1998
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Judgment
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May 8, 1998
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Counsel
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WH Trengove (with him M Chaskalson and P Tredoux)
for the applicants
JC Heunis (with hinm V Ngalwana and AM Breitenbach) for the respondent |
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Annotations
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Constitutional
law - Constitution - Constitution of the Republic of South Africa Act 108 of
1996 - Parliament - Powers of - Parliamentary privilege - Parliamentary
privilege inconsistent or incompatible with Constitution invalid - Where F privilege breaching provisions of Constitution
aggrieved party entitled to seek redress from Courts - Task of ensuring
supremacy of Constitution entrusted to Courts.
Constitutional
law - Constitution - Constitution of the Republic of South Africa Act 108 of
1996 - Parliament - Powers of G -
Parliament not having power to act mala fide - Constitution not intending to
authorise bias on part of Parliament.
Constitutional
law - Constitution - Constitution of the Republic of South Africa Act 108 of
1996 - Parliament - Powers of - Section 57(1)(a) of Constitution not
embracing power to suspend a Member of Parliament as punishment for contempt -
Suspension of a Member for contempt not consistent with the requirements of
representative democracy - H Punishment
not only penalising Member or his or her party but also electorate who voted
for party - Punishment of suspension not reasonable and justifiable in an open
and democratic society based on freedom and equality and accordingly failing
limitations test in s 36 of the Constitution. I
Constitutional
law - Constitution - Constitution of the Republic of South Africa Act 108 of
1996 - Parliament - Parliamentary privilege - Parliamentary privilege not
qualifying as law of general application for purposes of s 36 of Constitution.
Constitutional
law - Constitution - Constitution of the Republic of South Africa Act 108 of
1996 - Parliament - The Speaker - Certificate issued J
1998 (3) SA p431
by
Speaker in terms of s 5 of Powers and Privileges of Parliament Act 91 of 1963 -
Certificate undermining A independence
of Courts and interfering with their functioning - Section 5 unconstitutional
to extent that it purported to place Parliamentary privilege beyond judicial scrutiny
and thus beyond supremacy of Constitution on mere ipse dixit of Speaker.
Constitutional
law - Constitution - Constitution of the Republic of South Africa Act 108 of
1996 - Parliament - Freedom B of speech
conferred by s 58(1) of Constitution an absolute freedom, subject only to rules
and orders of National Assembly - Right not subject to limitations clause in s
36 of Constitution.
During an
interpellation debate in the National Assembly ('the House') the first
applicant named, inter alia, eight senior members of the majority party
in the House, the ANC, as being accused of having been spies of the previous
government. The respondent, the Speaker of the House, intervened and ruled that
the reference to spies was unparliamentary. The first applicant unconditionally
withdrew the statement she had made. Thereafter, and D after
having examined Hansard, the respondent found that the first applicant had made
two further remarks which she considered to be unparliamentary. The first applicant
also withdrew those allegations unconditionally. Subsequent thereto a motion,
proposed by a member of the ANC, was adopted appointing an ad hoc
committee to report to the House on the conduct of the first applicant in
making serious allegations without E substantiation
against members of the House and to recommend what action, if any, the House
should take in light of its report. Only the ANC supported the motion.
The ad
hoc committee thereafter met under the chairmanship of D. The committee was
constituted in proportion to the parties' representation in the House, with the
ANC having eight members and the opposition parties seven. F When the meeting of the committee commenced the ANC
members attempted to exclude the first applicant. The first applicant insisted
on being present. At the first meeting of the committee D had announced that
the ANC had a motion which he wanted to put. He then started reading an ANC
proposal on the recommendation to be made to the House. An ANC member of the
committee then intervened to explain that the recommendation was G merely being put to the first applicant and was in
the nature of a charge rather than a conclusion. D refused to disclose the
document from which he was reading when called upon to do so and even tore up
some of his papers. Prior to the committee finalising its task C took over as
chairperson, in the absence of D, who was apparently overseas. C had explained
that the committee had been set up as he and his comrades had 'been H actually offended' by the first applicant's
statement and she had flouted a rule of Parliament.
The first
applicant had been formally charged with abusing her privilege of freedom of
speech and, secondly, with contravening s 10(3)(c) of the Powers and
Privileges of Parliament Act 91 of 1963, in that she wilfully failed to I obey a National Assembly resolution to the effect
that members should not impute improper conduct to others except by way of a
separate substantial motion. She was never formally found guilty by the
committee of the two charges against her. C had commented, when this was drawn
to his attention, that 'there is not anybody else who has said that [the first
applicant] is actually innocent in her conduct'. The committee recom- J
1998 (3) SA p432
mended to
the House, inter alia, that she be suspended from the House for 15
parliamentary working days. The A recommendations
were adopted by the House.
The
applicants applied to a Provincial Division for the resolution adopted by the
House to be set aside. The first applicant contended that she had not had a
fair hearing before the ad hoc committee, in that the ANC members B of the committee tried to exclude her from its
deliberations, they had prejudged the issue and they had never seriously
attempted to enquire into her conduct. Accordingly there was actual bias, or,
alternatively, a reasonable suspicion of bias, on the part of the ANC members
of the ad hoc committee. She further averred that she had not understood
the previous resolution of the House to be anything more than a ruling in a
particular matter and did not understand it to create a new rule or convention
in the House. C
It was
argued on behalf of the respondent that the ad hoc committee merely made
recommendations to the National Assembly, which took the ultimate decision.
Therefore it was not necessary for the ad hoc committee to give the
first respondent a hearing. The respondent further argued that the National
Assembly was merely D exercising its privilege when it
passed the resolution and, accordingly, it was not open to the Courts to
enquire into or pronounce upon the exercise of any such privilege. In the
alternative, it was argued that judicial review in such cases was limited to
caprice or mala fides.
The
respondent, in exercising her powers in terms of s 5 of the Powers and
Privileges of Parliament Act, issued a certificate stating that the present
application concerned the privilege of the National Assembly and that the
matter should be permanently stayed. E
Held, that
the ad hoc committee's investigation and subsequent recommendations had
led to a decision seriously affecting individual rights and interests. The ad
hoc committee could never have been sure that it was properly acquainted
with all the considerations relevant to its recommendations unless it had
properly heard the views of F everyone
involved. The first applicant had not been given a hearing at all in the
National Assembly whereas the purported hearing before the ad hoc
committee had violated the common-law rules of natural justice. She had been
entitled to be heard fairly by an unbiased committee and had been entitled to
make representations regarding the proposed sanction against her. The
common-law rules of natural justice applied unless the relevant G statute had expressly or by necessary implication
excluded them. These rules required that when a statute empowered a public
official or body to give a decision prejudicially affecting an individual's
rights, interests or legitimate expectations, such an individual must be heard
before the decision is taken or any serious recommendations prejudicially
affecting such rights, interests or legitimate expectations are made by the
body concerned. (At 443H/I--444C/D.) H
Held,
further, that there had also been a breach of the nemo iudex in sua causa
rule, which required that an affected party must be heard by an impartial and
unbiased tribunal. At no stage was the first applicant given a real and
meaningful hearing. The ANC was the complainant, then the prosecutor and
ultimately the judge in its own cause. This had violated the rules of natural
justice. In the circumstances of the case the inference that the ad hoc
committee was in fact biased was irresistible. (At 444E and 445A/B--C.) I
Held, further,
that the ad hoc committee had acted mala fide. No one had the
power to act mala fide, Parliament included. The Constitution of the
Republic of South Africa Act 108 of 1996 ('the Constitution') also did not
intend to authorise bias. (At 445C--D.)
Held,
further, that the committee had never enquired into the wilfulness of the first
applicant's conduct and, on the information before it, could not have J
1998 (3) SA p433
concluded
that she had deliberately disobeyed a rule, order or resolution which was to
her knowledge binding A upon her.
Accordingly she could not have been guilty of any 'wilful' disobedience. (At
442F.)
Held,
further, that in terms of s 2 the Constitution was the supreme law of the
Republic and any law or conduct inconsistent with it was invalid. Section 8(1)
also provided that the Bill of Rights applied to all law and bound the
Legislature, the Executive, the Judiciary and all organs of State. Thus any
privilege inconsistent or incompatible B with the
Constitution was invalid. The extent of privilege was inextricably bound with
the exercise thereof. The determination of the extent of privilege must relate
to its exercise, otherwise Parliament would have a blank cheque to set the
limits of its own powers. (At 446G/H--447B/C.)
Held,
further, that upon a proper interpretation of s 57(1)(a) of the
Constitution, the power to determine and C control
the National Assembly's internal arrangements did not embrace the power to
suspend a Member as punishment for contempt. The powers under s 57(1)(a)
of the Constitution were meant to facilitate the proper exercise of powers and
functions of the Assembly which the Constitution intended. Had Parliament
intended D otherwise the Constitution would say so in as many
words, particularly because the principles of representative democracy lay at
the heart of the Constitution. The suspension of a Member of the Assembly from
Parliament for contempt was not consistent with the requirements of
representative democracy. It would be a punishment calculated to have penalised
not only the Member for contempt, but also his or her party and those of the E electorate who voted for that party who are
entitled to be represented in the Assembly by their proportional number of
representatives. (At 449H/I--450E, paraphrased.)
Held,
further, that s 10(1) of the Powers and Privileges of Parliament Act dealt with
penalties for contempt but did not mention suspension from the National
Assembly as one of them. Furthermore, Rule 85 of the Standing Rules of
Parliament clearly did not envisage punitive suspension. It dealt with
protective suspension which may F have been
necessary in the event of a Member disrupting proceedings in Parliament. In
casu this was clearly not the case. The first respondent had already
withdrawn the offending statements that she made in Parliament. Therefore her suspension
was punitive not protective. (At 450E--F.) G
Held,
further, that the nature and exercise of Parliamentary privilege had to be
consonant with the Constitution. The exercise of Parliamentary privilege which
was clearly a Constitutional power was not immune from judicial review. If a
Parliamentary privilege was exercised in breach of Constitutional Provisions,
redress may have been sought by an aggrieved party from the Courts whose
primary function was to protect rights of individuals. (At 452C--D.) H
Held,
further, that the supremacy of the Constitution was recognised and vouchsafed,
not only in the Constitution itself, but also by the pronouncements of the
Constitutional Court in the interpretation, protection and enforcement of the
Constitution, with particular reference to the Bill of Rights. The task of
ensuring that the supremacy of the Constitution was recognised and enforced, by
all to whom it applied, including organs of State, I such as
Parliament, was entrusted to the Courts. This was not an interference with the
independence of Parliament and its right to control its own procedures and
discipline its members; the Court did not seek to dictate to Parliament and
could not have done so. It recognised the separation of powers and the desirability
thereof and that the proper exercise of parliamentary privilege was a matter
for Parliament alone. J
1998 (3) SA p434
However,
where the Court could, and had to, interfere was where Parliament had
improperly exercised that A privilege
and had acted mala fide or capriciously and in defiance of the
constitutionally inherent rights of a Member, such as the right to just
administrative action. (At 452G--453B.)
Held,
further, that the National Assembly had imposed a sentence of 15 days'
suspension without any prospect B of
discharge contemplated in the rules of Parliament. The punishment imposed on
the first applicant was for statements she made in the Assembly in the exercise
of her freedom of speech protected by s 58(1) of the Constitution. The
punishment of suspension was not authorised by the rules of Parliament. The
freedom of speech conferred by s 58(1) was an absolute freedom in the sense
that it was subject only to the rules and orders of the Assembly. It was not
subject to the limitations clause contained in s 36 of the Constitution.
Accordingly the first C applicant's
suspension was unconstitutional and in violation of her freedom of speech. (At
453E--G.)
Held,
further, that, to the extent that Rule 49(3) of the Standing Rules of
Parliament excluded matters of privilege from the jurisdiction of the
disciplinary committee of Parliament, it was incumbent on the National Assembly
to D create a disciplinary mechanism which was consonant
with the Constitution. The ad hoc committee was not and could not have
been an independent and impartial forum for the purposes of s 34 of the
Constitution because, unlike the disciplinary committee envisaged in the rules
of Parliament, it was dominated by the majority party. Its independence and
impartiality was significantly compromised. (At 453H/I--454B.) E
Held,
further, that the exercise of Parliamentary privilege which resulted in the
suspension of the first applicant had clearly affected her Constitutional
rights guaranteed in terms of ss 16, 33 and 34 of the Constitution. (At
454E/F--F.)
Held,
further, that the law of Parliamentary privilege did not qualify as a law of
general application for the purposes of s 36 of the Constitution. It was not
codified or capable of ascertainment. Nor was it based on a F clear system of precedent. There was no guarantee
of parity of treatment. It was essentially ad hoc jurisprudence which
applied unequally to all parties. Accordingly the law of Parliamentary
privilege failed the 'law of general application' leg of the limitations test
in s 36 of the Constitution. (At 454I/J--455B/C.)
Held,
further, that the punishment of suspension also failed the second leg of the
limitations test. It was not G reasonable
and justifiable in an open democratic society based on freedom and equality. This
was because the purpose served by an ex post facto punitive suspension
for unparliamentary remarks about members which had already been withdrawn was
not altogether clear. It was not designed to protect the proceedings of the
Assembly from disruption because it took place at a time when there was no
threat of disruption, particularly after an H unconditional
withdrawal of the offending allegations by the first applicant. (At 455C--E/F.)
Held,
further, that it could never be reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom for such
punitive power to be exercised in violation of the rules of natural justice. It
could never be justifiable in a democratic society to impose such a suspension
which would deprive innocent I members
of the electorate of their representation on Parliament when any such punitive
purpose served by the suspension could equally be served by other punishments
which did not compromise democratic representation. (At 455F--G/H.)
Held,
further, that s 57(1)(a) of the Constitution permitted the Assembly to
determine and control its internal arrangements, proceedings and procedures. It
did not, however, follow that the Assembly could do so in a J
1998 (3) SA p435
manner
inconsistent with the Constitution. The exercise of power conferred on the
Assembly by s 57(1)(a) A remained
subject to the Constitution and subject to constitutional review by the Courts.
Therefore the contention that the mere issue of a certificate obliged the Court
to stay proceedings which should thereupon be deemed to be finalised was
untenable. To the extent that s 5 of the Powers and Privileges of Parliament
Act purported to B place issues of Parliamentary
privilege beyond judicial scrutiny and thus beyond the supremacy of the
Constitution on the mere ipse dixit of the Speaker, it was undoubtedly
unconstitutional. (At 456B--D.)
Held,
further, that s 5 of the Powers and Privileges of Parliament Act was
inconsistent with s 1(c) of the Constitution and the rule of law as
founding values of the South African legal order. The rule of law did not C countenance the administrative issue of a
certificate to shield illegal and unconstitutional acts from judicial review.
The section was also at variance with s 2 of the Constitution which provided
that law or conduct inconsistent with the Constitution was invalid. There were
many other provisions of the Constitution which s 5 violated. Any certificate
issued under s 5 undermined the independence of the Courts and interfered with their
functioning. (At 456D/E--F/G.) D
Held,
accordingly, that s 5 of the Powers and Privileges of Parliament Act was
unconstitutional and invalid. No certificate issued under its purported
authority was of any effect. (At 456G.)
Held,
accordingly, that the resolution passed by the National Assembly purporting to
suspend the first applicant for 15 days was set aside. (At 457C/D--D.) E
Annotations
Reported
cases
Administrator,
Transvaal, and Others v Traub and Others1989
(4) SA 731 (A): applied
Anisminic
Ltd v Foreign Compensation Commission and Another [1969] 2 AC 147: referred to F
Board of
Education v Rice and Others [1911] AC 179: dictum at 182 followed
Bradlaugh
v Gosset (1884)
12 QBD 271: referred to
British
Railways Board v Pickin [1974] AC 765 (HL) ([1974] 1 All ER 609): referred
to
BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union
and Another1992 G (3)
SA 673 (A): dictum at 693I--J applied
Council
of Review, South African Defence Force and Others v M"nnig and Others1992
(3) SA 482 (A): applied
Ex parte
Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, 19961996
(4) SA 744 (CC): referred to H
Executive
Council, Western Cape Legislature, and Others v President of the Republic of
South Africa and Others1995
(4) SA 877 (CC): dicta at paras [61] and [62] applied
Federal
Convention of Namibia v Speaker, National Assembly of Namibia1994
(1) SA 177 (NSC): dictum at 191J--192A followed I
Harksen v
Lane NO and Others1998
(1) SA 300 (CC): considered
Hurley
and Another v Minister of Law and Order1985
(4) SA 709 (D): followed
Liversidge
v Anderson and Another [1942] AC 206 (HL) ([1941] 3 All ER 338): dictum
at 244 (AC) & 361B (All ER) approved
Mangawaro
Enterprises Ltd v Attorney-General [1994] 2 NZLR 451: referred to J
1998 (3) SA p436
HLOPHE J
Metropolitan
Properties Co (FGC) Ltd v Lannon and Others; Regina v London Rent Assessment
Panel A Committee, Ex Parte Metropolitan Properties Co
(FGC) Ltd [1969] 1
QB 577 (CA) ([1968] 3 All ER 304): dictum at 599F (QB) & 310D (All ER)
applied
Moch v
Nedtravel (Pty) Ltd t/a American Express Travel Service1996
(3) SA 1 (A): dictum at 8H--J applied
Mutasa v
Makombe NO1998
(1) SA 397 (ZS): referred to
New
Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) 1993 (1)
SCR 319: referred to
President
of the Republic of South Africa and Another v Hugo1997
(4) SA 1 (CC): applied
R v
Ngwevela1954
(1) SA 123 (A): applied
South
African Defence and Aid Fund v Minister of Justice1967
(1) SA 263 (A): compared
Sanderson
v Attorney-General, Eastern Cape1998
(2) SA 38 (CC) (1998 (1) SACR 227): dictum at paras D [26] and [27] referred to
Smith v
Mutasa and Another NNO1990
(3) SA 756 (ZSC) (1989 (3) ZLR 183 (SC)): approved and applied
Union
Government v Fakir 1923 AD 466: dictum at 471 applied.
Statutes
The Constitution of the Republic of
South Africa Act 108 of 1996, ss 1(c), 2, 8(1), 16, 34, 36, 57(1)(a),
58(1): E see Juta's Statutes of South Africa
1997 vol 5 at 1-171--1-173, 1-175, 1-179--1-180
The Powers and Privileges of Parliament
Act 91 of 1963, ss 5, 10(1) and 10(3)(c): Juta's Statutes of South
Africa 1997 vol 5 at 1-66--1-67.
Application to set aside a resolution
passed by the National Assembly, in terms of which the first respondent was F suspended from the National Assembly.
The facts appear from the reasons for judgment.
W H Trengove SC (with him M Chaskalson and P Tredoux) for the applicants.
J C Heunis SC (with him V Ngalwana and A M Breitenbach) for the
respondent. G
Cur adv vult.
Postea (8 May).
Hlophe J: H
A. INTRODUCTION
[1] The first applicant is Mrs Patricia
De Lille MP, an adult woman and one of the PAC members represented in the
National Assembly. She is a member of the National Executive Council of the
PAC, its highest executive, I administrative and disciplinary authority. She is also the Chief Whip of
the PAC in the National Assembly as well as the Chair of the National Assembly
Portfolio Committee on Transport. The second applicant is the Pan Africanist
Congress of Azania (PAC), a voluntary association and political party
registered in terms of s 19 of the Electoral Act 202 of 1993. The PAC is a
juristic person capable of suing in its own J
1998 (3) SA p437
HLOPHE J
name. The first applicant was duly
authorised by the second applicant to bring this application to court. Mr A Trengove SC, with him Messrs Chaskalson
and Tredoux, appeared for the applicants. The respondent is Dr Frene
Ginwala, an adult female parliamentarian. She is cited herein in her capacity
as the Speaker of the National Assembly of Parliament, Cape Town. The Speaker
is a member of the African National Congress (ANC), the B majority party in the National
Assembly. She is also a member of its National Working Committee. Mr Heunis
SC, with him Messrs Ngalwana and Breitenbach, appeared for
the respondent.
[2] The applicants are seeking an
order:
(i) setting
aside and declaring the resolution passed by the National Assembly on 5
November 1997 (in C terms whereof the first applicant
was suspended from the National Assembly for 15 days) to be null and void;
(ii) directing
the respondent not to give effect to that resolution; and
(iii) directing
the respondent to pay the costs of this application, such to include the costs
of two counsel. D
[3] The material facts giving rise to
this application, which are by and large common cause, may be summarised as
follows. During an interpellation debate in the National Assembly on 22 October
1997 Mrs De Lille said that the PAC had information regarding twelve members of
the ANC who had been accused of having been spies for E the apartheid regime. She said it was important to know whether those
accusations were true. Thereupon she called on the Government to tell the
public at large who the agents had been 'who received blood money to betray the
genuine struggle of the African people'. There were interjections challenging
her to name those ANC F officials accused of having been informers of the previous regime. She
then called on the Government to 'tell this country whether the following
people were spies or not', whereupon she named eight senior ANC officials, as
the people accused of having been spies of the apartheid regime. The Speaker
immediately intervened and ruled that whilst her question was 'in order',
reference to 'spies' was unparliamentary because unsubstantiated allegations G against the integrity of any members
are unparliamentary. As the record shows, at first Mrs De Lille offered to
withdraw her statement conditionally as she wanted to read the relevant rules
to enable her to take an informed decision. When the Speaker insisted on
unconditional withdrawal of the statement, Mrs De Lille withdrew same
unconditionally. Thereafter the Speaker said 'thank you very much'. The
question of unparliamentary remarks H was raised again by the Speaker on 27 October 1997 after she had
examined the unrevised Hansard, so that she could take additional corrective
steps at the next sitting of the House. Upon examination of the Hansard the
Speaker found that Mrs De Lille made two further remarks that she considered to
be unparliamentary. I Accordingly Mrs De
Lille was asked to withdraw unconditionally 'agents . . . who received blood
money to betray the genuine struggle of the African people' and people 'who
betrayed the soul of the nation' because these were unsubstantiated allegations
against members which cast serious reflections on their integrity and were
therefore 'unacceptable'. Mrs De Lille uncondition- J
1998 (3) SA p438
HLOPHE J
ally withdrew those offending
allegations. Thereupon the Speaker said the 'House has accepted the practice
that A members should not be attacked by name
in the House without prior notification to the member concerned'. She also
added that she wanted 'to encourage members to follow this practice in future'.*
[4] Mrs Pandor (ANC) proposed that the
House should appoint an ad hoc committee to report on the conduct B of Mrs De Lille in making serious
allegations against members of the House without substantiation and to
recommend what, if any, action the House should take in the light of its
report. Almost all the minority parties represented in the Assembly opposed the
draft proposal moved by Mrs Pandor for various reasons, including C that Mrs De Lille had already
unconditionally withdrawn those allegations and that the withdrawal had been
accepted by the Speaker. Mrs Pandor motivated her proposal further by saying
that the dignity of the House had been seriously undermined by the
unsubstantiated allegations of Mrs De Lille. Those allegations deliberately D overstepped the bounds of parliamentary
privilege. While those remarks had been withdrawn, those accusations were now
in the public domain and had been widely covered by the media and this made a
mockery of parliamentary privilege. The debate followed and in the end only the
ANC supported the resolution of the House. The House adopted the following
motion 'that the House appoints an ad hoc committee to report to the
House, E within seven days of its appointment, on
the conduct of Mrs P De Lille, in making serious allegations without
substantiation against members of the House in statements she made in the House
on 22 October 1997, and to recommend what, if any, action the House should take
in the light of its report'.*
[5] The ad hoc committee sat on
5 and 6 November 1997 under the chairmanship of Prof Du Toit (ANC). F Thereafter it sat on 25 November 1997
under the chairmanship of Mr Chikane (ANC). On that day, 25 November 1997, the ad
hoc committee completed its task and recommended that members should
refrain from making serious allegations against each other unless they do so by
way of substantive motion; that Mrs Patricia G De Lille be directed to apologise to the National Assembly and to the
members named by means of a letter addressed to the Speaker for making the
offending allegations; and that Mrs De Lille should be suspended for 15
parliamentary working days with effect from the next sitting day. As the record
shows, only ANC members H voted for Mrs De Lille's suspension. The said recommendations of the ad
hoc committee were adopted by the National Assembly on 25 November 1997.
Hence the present application before us.
B. UNDISPUTED FACTS
[6] The following facts are not
disputed by the respondent. I
1998 (3) SA p439
HLOPHE J
(i) The
membership of an ad hoc committee, unlike a disciplinary committee, is
constituted in proportion A to the
parties' representation in the National Assembly. The ANC as a majority party
in the National Assembly would accordingly also command a majority in the ad
hoc committee.
(ii) The ad
hoc committee appointed to investigate Mrs De Lille's conduct comprised
eight members of the B ANC and seven members of the
opposition parties. The ANC accordingly commanded the majority of the ad hoc
committee.
(iii) The ANC
chaired the ad hoc committee. The original chairperson was Prof D C du
Toit who was later replaced by Mr M M Chikane. The replacement of the chair was
never explained and the secretary of C the ad
hoc committee simply said that Prof Du Toit was overseas.
(iv) Mrs De
Lille alleged that when the ad hoc committee met on 5, 6 and 25 November
1997, it was 'apparent that the hearings were a charade and that the ANC had
from the outset made up its mind D about the
outcome'.
(v) She also
alleged that it was apparent from the outset that the ANC members on the ad
hoc committee were incapable of bringing an unbiased mind to bear on the
issue. E
(vi) The very
appointment of the ad hoc committee despite her withdrawal of the
essence of the accusations she had raised in the interpellation debate, was an
act of political reprisal for what was perceived to be an attack on the senior
leadership of the ANC. It is fanciful even to suggest that its representatives
on the ad hoc committee could approach the issue without bias. F
(vii) When the
meeting of the ad hoc committee commenced there was an attempt by the
ANC members to exclude Mrs De Lille from its transactions. However, she
insisted on being present thereat.
(viii) On the
first day of the hearing, 5 November 1997, after a few introductory comments,
the chairperson G proceeded with the business of
the committee by announcing that 'the ANC has a motion which I want to put
now'. Thereafter he started reading an ANC proposal of the recommendation to be
made to the National Assembly. He was however interrupted by astonished
minority party members of the committee who immediately realised that the ANC
members had made up their minds on the issue. H During
the hearing Miss Jana, an attorney and an ANC member of the committee,
interrupted the chair and told him that 'what you intended to do was to put
this to Mrs De Lille' and she suggested to him that what he was about to put
was in fact in the nature of a charge rather than a conclusion. The chair I was quick to agree with her.
(ix) When the
members of the minority parties on the committee called on the chair to
disclose the document from which he was reading, he refused to do so. Prof Du
Toit even tore up some of his papers. Mrs De Lille alleged that she had little
doubt that the J
1998 (3) SA p440
HLOPHE J
reason for his
reticence was that the document contained the committee's recommendation on
which the A ANC had already agreed.
(x) Mr Chikane
participated in the ensuing debate. He later took over as the chairperson of
the committee. He explained that the committee had been set up because he and his
comrades had 'been actually B offended
by the statement made by Mrs De Lille in Parliament'. He confirmed that the
'ANC has got a position' and stated further as a fact that 'the rule of
Parliament has been flouted by Mrs De Lille'. He added that all that was needed
was to investigate whether Mrs De Lille said what she had said in C Parliament and whether she intended to say that in
that particular way.
(xi) Mrs De
Lille alleged that the outcome of the ad hoc committee's investigation
was a foregone conclusion so much so that some of the minority parties withdrew
from the hearing.
(xii) The ad
hoc committee never formally found Mrs De Lille guilty as charged before it
deliberated on the D appropriate sanction. When this
irregularity was raised by Mr Rockman the chair replied 'there is not anybody
else who has said Mrs De Lille is actually innocent in her conduct'.*
[7] The allegations in para 6 above
were not denied by the respondent; the only response to certain of them is E para 6 of the respondent's answering
affidavit in terms of which she denied having attended a meeting referred to in
para 30 of the first applicant's founding affidavit which, as we shall see
later in the judgment, was subsequently struck out as inadmissible hearsay
evidence. Mr Chaskalson argued quite rightly in reply that there was no F reason for the Court to reject these
undisputed facts. In the absence of affidavits deposed to by the two
chairpersons explaining their conduct or denying the serious allegations
levelled against them, the Court had to accept these undisputed facts. Mr Heunis
did not suggest in his argument any reason for rejecting those undisputed
facts. There is simply nothing to gainsay them. G
C. ACTUAL BIAS/MALA FIDES?
Circumstances surrounding the
appointment of the ad hoc committee H
[8] When Mrs De Lille made the
unparliamentary remarks referred to above she was asked by the Speaker to
withdraw them. She withdrew them unconditionally. Therefore, in a sense, she
was punished by being ordered to withdraw her remarks publicly in the National
Assembly. Thus any threat to the proceedings or dignity of the I Assembly was removed when she
unconditionally withdrew her offending remarks. The ad hoc committee was
appointed on 27 October 1997 after Mrs De Lille had withdrawn her remarks. Only
the ANC members (the aggrieved party) voted for the appointment of the ad
hoc committee to report to the
1998 (3) SA p441
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Assembly on the first applicant's
conduct and to recommend what action should be taken in the light of its
report. A Almost all minority parties represented
in the Assembly objected to the appointment of the ad hoc committee
mainly because Mrs De Lille had unconditionally withdrawn her offending
allegations. The minority parties lost the vote and the ad hoc committee
was set up on 27 October 1997. B
(II) Composition of the ad
hoc committee and the role of the chairpersons
[9] In para 6 above we alluded to the
undisputed fact that the ANC as the majority party in the Assembly commanded a
majority in the ad hoc committee. The first chairperson, Prof Du Toit,
is a member of the ANC C and we were told during argument that he is a law professor. When the ad
hoc committee met for the first time on 5 November 1997, the chairperson,
after a few introductory remarks, said 'To proceed, then, the ANC has a motion,
which I want to put now. It reads as follows: It is proposed, by the ANC then,
that the committee D recommends to the
House to resolve that Mrs P De Lille. . . .'* Mr Rockman and Miss Jana
intervened and the chairman was quick to agree with them that it was not a
motion but rather a charge. On the last day of the ad hoc committee's
sitting on 25 November 1997 Prof Du Toit was replaced by Mr Chikane, a senior
ANC official. It is not in dispute that the replacement of the chair was never
explained save what the secretary said that he was E overseas. Mr Chikane was present when the ad hoc committee sat
previously on 5 and 6 November under the chairmanship of Prof Du Toit. It was
he who said that the ANC 'Comrades have been actually offended by the statement
made by Mrs De Lille in parliament . . . that we are unhappy about the position
and the method of F expression that Mrs
De Lille used in Parliament on this particular issue and that is the reason
why, ultimately, this ad hoc committee was set . . . ANC has got a
position and we formed this ad hoc committee not to try anybody else,
but to be able to assert on whether Mrs De Lille said what she said in
Parliament and she intended to say it in that particular way and from there
make a recommendation'.* G
(III) Proceedings of the ad
hoc committee
[10] The record is self-evident that
Prof Du Toit, who initially chaired the ad hoc committee, came with the
ANC's motion on recommendations to be made by the ad hoc committee to
the National Assembly on Mrs De H Lille's conduct complained of and steps to be taken in the light of its
report. Subsequent attempts by Mr Rockman and Miss Jana to explain that Prof Du
Toit intended to put charges to Mrs De Lille were too little too late. This is
borne out by what transpired thereafter. The chairperson was at pains to try to
convert the motion into a charge.* Thereafter some minority
parties' members of the ad hoc committee put it to the chairperson that I the ANC had prejudged the issue even
before
1998 (3) SA p442
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hearing the first applicant, which he
denied. In due course Mr Chikane intervened and stated the ANC's position, A namely that they were 'actually
offended by the statement made by Mrs De Lille in Parliament' and that 'the
rule of Parliament has been flouted by Mrs De Lille'.* Prof Du Toit also refused to
disclose the papers from which he was reading the ANC's motion to other members
of the ad hoc committee upon being requested to do B so. He even tore up some of his papers.
In due course a charge was formulated and put to the first applicant. This was
at a very advanced stage of the proceedings just before the meeting adjourned
for the day.*
[11] Mrs De Lille was formally charged
with abusing her privilege of freedom of speech by her conduct in C making serious allegations during the
interpellation debate on 22 October 1997, which allegations imputed improper
motives to other members and which resulted in irreparable damage to their good
names, standing and reputations. And, secondly, she was charged with
contravening s 10(3)(c) of the Powers and Privileges of D Parliament Act 91 of 1963 in that she
wilfully failed to obey a National Assembly resolution to the effect that
members should not impute improper conduct to others except by way of separate
substantive motion.* In relation to these charges Mrs
De Lille's undisputed evidence was that she never understood the Speaker's
statement on the Odendaal-Pahad matter on 17 September 1996 to be anything more
than a ruling in that E particular matter and a statement of future policy to be followed by the
chair. She did not understand it to create a new rule or convention within the
National Assembly.* Furthermore, the offence created
by s 10(3)(c) of the Act is the 'wilful failure or refusal to obey any
rule, order or resolution of a House'. She was not guilty of any F 'wilful' disobedience. The committee
never enquired into the wilfulness of her conduct and could not conceivably on
the information before it have concluded that she had deliberately disobeyed a
rule, order or resolution which was to her knowledge binding upon her.
[12] Mrs De Lille stated her position
clearly before the ad hoc committee. Her attitude was that the
resolution G passed by Parliament was unlawful
inasmuch as it interfered with her right to freedom of speech. She specifically
reserved her right to challenge same in Court. She also spelt out her right to
a fair hearing, inter alia, that she was entitled to be heard fairly by
a non-biased committee; that she was entitled to know what charges were H preferred against her; what evidence
was going to be led against her; the witnesses to be called against her; the
sanction that the ad hoc committee contemplated; and the fact that she
wanted to lead evidence and to call witnesses.*
[13] The record speaks for itself.
There was never a formal finding that
1998 (3) SA p443
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Mrs De Lille was guilty of any of the
two charges preferred against her. Mr Rockman raised this when he said A 'we are mixing finding and the sanction
together. I will humbly ask that we first talk about the finding . . . and then
go over to the sanction . . . could we do that please, Mr Chairperson?' The
chairman replied: 'There is not anybody else who has said Mrs De Lille is
actually innocent in her conduct.' Mr Rockman in turn said: 'I agree B with that, but it was not put formally
to all of us. We all have stated it, but it was not put formally.' The
chairperson proceeded: 'I don't want you to take me back and forth. Does anyone
believe that Mrs De Lille is innocent? Then we close this case and we don't
want to debate it further.'* In the end the ad hoc
committee C recommended that Mrs De Lille should be
directed to apologise to the members named and to the House in terms of a
letter addressed to the Speaker and that she should be suspended for 15
parliamentary working days. Only the ANC members of the ad hoc committee
voted for Mrs De Lille's suspension. The representatives of the minority
parties felt that an apology was enough. D
[14] Mr Chikane tabled the report of
the ad hoc committee in the Assembly on 25 November 1997. In motivating
it he said, inter alia, 'we believe that the sanction can afford some
way of showing our complete abhorrence of her conduct. Through this, we would
like to disinfect our people in Parliament, and even those E who are outside, from the accusation of
being spies.'* The report was adopted by the
National Assembly on the same day.
[15] Mr Trengove argued that Mrs
De Lille did not get a fair hearing at all before the ad hoc committee.
The F ANC members of the ad hoc
committee tried to exclude her from its deliberations. They came with a
prepared motion on the recommendations to be made to the National Assembly
regarding her conduct and appropriate steps to be taken in relation thereto.
They never attempted seriously to enquire into her conduct. They prejudged the
case before the hearing. Therefore there was actual bias on the part of the ANC
members of the ad hoc G committee. Alternatively, in this respect there was a reasonable
suspicion of a real likelihood of bias on the part of the ANC members
represented on the ad hoc committee. To counter this submission Mr Heunis
contended that the ad hoc committee merely made recommendations to the
National Assembly. It was the Assembly which ultimately took the decision.
Therefore it was not necessary for the ad hoc committee to hear the
first applicant. H With respect, Mr Heunis'
argument is devoid of substance. The ad hoc committee's investigation
and subsequent recommendations led to a decision seriously affecting individual
rights and interests. The ad hoc committee could never be sure that it
was properly acquainted with all the considerations relevant to its I recommendations unless it properly
heard the views of everyone involved. This is why Lord Loreburn LC quite
rightly considered a fair hearing to be 'a duty lying
1998 (3) SA p444
HLOPHE J
upon everyone who decides anything'.* Mrs De Lille was not given a
hearing at all in the National Assembly, A whereas the purported hearing before the ad hoc committee
violated the common-law rules of natural justice. She was entitled to be heard
fairly by an unbiased committee and she was entitled to make representations
regarding the proposed sanction against her. South African Courts have
repeatedly laid down that the B common-law rules of natural justice apply unless the relevant statute
has expressly or by necessary implication excluded them.* These rules require that when a
statute empowers a public official or a body to give a decision prejudicially
affecting an individual's rights, interests or legitimate expectations, such an
individual must be heard before the decision is taken or, I would add, before
any serious recommendations prejudicially affecting such C rights or interests or legitimate
expectations are made by the body concerned. Surely the exercise by a body of a
disciplinary power over one of its members is an obvious case in which fairness
requires that the rules of natural justice should be complied with. It follows
therefore that whatever the source of power that was exercised by the D Assembly to suspend the first applicant
it had to be done in accordance with the dictates of fairness and natural
justice.
[16] There is another fundamental breach
of the common-law rules of natural justice by the ad hoc committee, E namely the nemo iudex in sua causa
rule. This rule requires that an affected party must be heard by an impartial
and unbiased tribunal. For purposes of the rule there should not be a
reasonable suspicion that the ad hoc committee was biased.*
[17] It is not bias per se to
hold certain tentative views about a matter. It is human nature to have certain
prima F facie views on any
subject. A line must be drawn, however, between mere predispositions or
attitudes, on the one hand, and prejudgment of the issues to be decided, on the
other. Bias or partiality occurs when the tribunal or committee approaches a
case not with its mind open to persuasion nor conceding that exceptions could
be G made to its attitudes or opinions, but
when it shuts its mind to any submissions made or evidence tendered in support
of the case it has to decide. No one can fairly decide a case before him if he
has already prejudged it. Thus prejudgment of the issues to be decided (which
is in a sense prejudice) constitutes bias. The entire proceedings become
tainted with bias. The reason is self-evident: 'Justice must be rooted in H
1998 (3) SA p445
HLOPHE J
confidence; and confidence is destroyed
when right-minded people go away thinking: ''the Judge was biased''.'* A
[18] The record clearly reveals that at
no stage was the first applicant given a real and meaningful hearing. The ANC
was the complainant (the aggrieved party); then the prosecutor (through the ad
hoc committee which it B dominated); and ultimately the judge (through the National Assembly) in
its own cause. This violated the rules of natural justice. Even though the
Court would not likely infer or presume the existence of actual bias or mala
fides in any given case without the benefit of oral evidence, in casu
there are many undisputed facts which have been highlighted above. Mr Trengove
correctly argued that in all circumstances of the case the inference that the ad C hoc committee was in
fact biased was irresistible. On all fours the ad hoc committee acted mala
fide. No one has power to act mala fide, Parliament included. The
Constitution (Constitution of the Republic of South Africa Act 108 of 1996)
also does not intend to authorise bias.*
[19] In my view, on this ground alone,
the application should, subject to what follows with regard to the D submission concerning the ouster of the
Court's jurisdiction, succeed. However the case raises fundamental
constitutional questions as well. We propose to deal with them hereunder.
D. PARLIAMENTARY PRIVILEGE E
[20] Mr Heunis argued that the
National Assembly was merely exercising its privilege when it passed the
resolution suspending Mrs De Lille for 15 working days. Counsel submitted that
while it is open to the Courts to scrutinise the nature and extent of privilege
it is not, however, open to them to enquire into or to pronounce upon the
exercise of any privilege by the National Assembly. In the event of the Court
finding that the proceedings F were instituted for or on account of or in respect of a matter of
privilege, that should be the end of the matter. The Court is enjoined to stay
permanently any proceedings involving the exercise of privilege by Parliament
as the exercise thereof by definition is immune from the purview of judicial
review. This is a universally accepted G phenomenon. It is important that the exercise of privilege should be
exempt from judicial scrutiny in order to protect the authority and dignity of
Parliament.* Parliament has exclusive
jurisdiction to enforce its privileges and to
1998 (3) SA p446
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punish those who infringe them. This is
so because contempts generally are offences against the authority or A dignity of Parliament. It is
undesirable for the Courts of law to get steeped in politics. Thus it is the
traditional role of Parliament to determine and control its internal
arrangements, proceedings and procedures and to make rules and orders
concerning its business. This in turn is enshrined in s 57(1)(a) and (b)
of the Constitution. We were B referred to various English and Commonwealth authorities in support of
the proposition that Parliament must have inherent power to protect its
privileges and to punish those who violate them or who commit contempt of
Parliament. Such powers include suspension and expulsion of offenders.* Mr Heunis' alternative
argument was C that if the exercise of privilege by
the National Assembly is subject to judicial review, then this is limited to
cases of caprice or mala fides. But the substance of the decision of the
National Assembly in the exercise of its privilege cannot be called into
question in any Court. It is unnecessary to deal with this argument in view of
the finding made above, namely that the majority of the members of the ad
hoc committee acted mala fide. D
[21] In my judgment, it is important
that our Courts should borrow wisely from other jurisdictions. Comparative
research is generally valuable and is all the more so when dealing with
problems new to our jurisprudence but well-established in other jurisdictions.
Nevertheless we should be careful and borrow wisely because our own E Constitution is the product of South
African history and must be interpreted accordingly.* Thus the mere fact that
there may well be a need in other countries for the National Assembly to
exercise a punitive power over contempts does not necessarily mean that such
power is an incident of its general power to determine and control F its internal arrangements. Even during
the days of parliamentary sovereignty in this country, attempts by government
to turn Parliament into the 'High Court of Parliament' in the constitutional
crisis of the 1950s was struck down by the Appellate Division as
unconstitutional in the case of Minister of the Interior and Another v
Harris and Others.* G
[22] The difficulty with Mr Heunis'
argument is that he concedes that Parliament is subject to the Constitution. In
terms of s 2 the Constitution
1998 (3) SA p447
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is the supreme law of the Republic and
any law or conduct inconsistent with it is invalid. Section 8(1) also A provides that the Bill of Rights applies
to all law and binds the Legislature, the Executive, the Judiciary and all
organs of State. Thus any privilege inconsistent or incompatible with the
Constitution is invalid. Surely the extent of privilege is inextricably bound
with the exercise thereof. In other words, the determination of the extent of B privilege must surely relate to its
exercise. The contrary view is untenable. Otherwise Parliament would have a
blank cheque to set the limits of its own powers. The Constitution,
particularly s 2 thereof, enjoins us to ensure that the obligations imposed by
the Constitution - which is the supreme law - must be fulfilled. C
[23] There are many cases where the
Courts, including ours, have not hesitated to interfere with the exercise of
powers by Parliament in conflict with Constitutionally guaranteed rights. For
example, in the landmark decision of Minister of the Interior v Harris* , where
Parliament in the 1950s attempted to convert itself into the 'High D Court of Parliament', the Appellate
Division had no hesitation in striking down the relevant legislation as being
unconstitutional as it unlawfully interfered with a constitutionally guaranteed
right to vote of the Cape Coloureds. The High Court of Parliament Act 35 of
1952 was passed bicamerally and not in the manner prescribed by the second
proviso to s 152 of the Constitution (the South Africa Act). Centlivres CJ
stressed the fact that in E construing s 152 it was important to bear in mind that the section gave
the individual the right to call on the judiciary to help him resist any
legislative or executive action which offended against the constitution. The
section created rights in individuals and the duty of the Courts to enforce
such constitutionally guaranteed rights. The F Court was certainly not prepared to allow Parliament to assume the role
of a watchdog over its own actions. In Federal Convention of Namibia v Speaker,
National Assembly of Namibia and Others* Levy J
said the following:
'Where there are written
provisions in the Constitution which have to be complied with, that is
peremptory provisions, even G if such provisions relate to internal matters of one of the Houses of
Parliament, a Court of law will have jurisdiction to see to it that there is
such compliance unless such jurisdiction is specifically and lawfully ousted.'*
Similarly, in Smith v Mutasa and
Another NNO* the Zimbabwe
Supreme Court set aside the Speaker's H Certificate purporting to exclude the Court's jurisdiction to enquire
into the exercise of Parliamentary privilege under the Privileges, Immunities
and Powers of Parliament Act Chap 10 (Z). The issue in the Smith case was whether the deprivation by the House of Assembly of Mr Smith's
salary and allowances was a penalty authorised by the law. The Court held that
the claim by the I
1998 (3) SA p448
HLOPHE J
Speaker that the imposition of such a
penalty was one of the privileges of the House was wrong. It offended A against the Parliamentary Salaries and
Allowances Act [Chap 2:03] (Z), for under that law the member was entitled to
be paid his salary and allowances during the time of his suspension from
service of the House. The House was not empowered to impose an unlawful penalty
in the name of Parliamentary privilege. It had B exceeded its jurisdiction in doing so. Accordingly, the Speaker's
Certificate could not oust the jurisdiction of the Court.* Furthermore, the Court was of
the view that Mr Smith's proprietary right in terms of s 16(1) of the
Zimbabwean Constitution was a right which Parliament could not infringe without
inviting the intervention of the courts of law. In short, the Smith case
is certainly authority for the view that the Court has power to interfere C with the exercise of Parliamentary
privilege which conflicts with constitutionally guaranteed rights. A claim of
Parliamentary privilege does not defeat an action for the redress of an
infringed right.
[24] I agree with Mr Trengove
that the issue whether or not the exercise of constitutional power is subject
to D judicial review has now been finally
dealt with by the Constitutional Court in Ex parte Chairperson of the
Constitutional Assembly: In Re Certification of the Constitution of the
Republic of South Africa, 1996 and President of the Republic of South
Africa and Another v Hugo. The Constitutional Court made it quite clear E that our constitutional democracy is
based on the supremacy of the Constitution protected by an independent
judiciary and that the powers conferred by the Constitution have to be
exercised subject to the Constitution irrespective of the scope of analogous
powers in South African law prior to 1994.* In President of the F Republic of South Africa and Another v
Hugo Goldstone J said the following:
'The President, as an executive
organ of State, by reason of the supremacy clause, is subject to the provisions
of the interim Constitution. . . . Originating as they do from an executive
organ of State, acts of the President, under s 82(1), are subject to the provisions
of chap 3 of the interim Constitution. As a result the exercise by the
President of his powers G under s 82(1) may be subject to review by Courts of appropriate
jurisdiction in the same way as the exercise by him of other constitutional
powers would be subject to review. This conclusion is consistent with the
approach of this Court in the first Constitutional Certification judgment. . .
. The approach of the English Courts whereby the jurisdiction of the Courts to
review the exercise of prerogative powers depends upon the subject-matter of
the power is one that is not open H to us. The interim Constitution obliges us to test impugned action by
any organ of State against the discipline of the interim Constitution and, in
particular, the Bill of Rights. That is a fundamental incidence of the
constitutional State which is envisaged in the Preamble to the interim
Constitution. . . . In my view, it would be contrary to
1998 (3) SA p449
HLOPHE J
that promise if the exercise of
the presidential power is above the interim Constitution and is not subject to
the discipline A of the Bill of Rights. However, it may
well be that, because of the nature of a s 82(1) power or the manner in which
it is exercised, the provisions of the interim Constitution, and, in particular,
the Bill of Rights, provide no ground for an effective review of a presidential
exercise of such a power. The result, in a particular case, may be the same as
that in England, B but the manner in
which that result is reached in terms of the interim Constitution is a
different one. On the English approach the Courts, in certain cases, depending
on the subject-matter of the prerogative power exercised, would be deprived of
jurisdiction. Under the interim Constitution the jurisdiction would be there in
all cases in which the presidential powers under s 82(1) are exercised.'* C
[25] The reasoning in the Hugo
judgment is directly applicable to the present case. The National Assembly is
subject to the supremacy of the Constitution. It is an organ of State and
therefore it is bound by the Bill of Rights. All its decisions and acts are
subject to the Constitution and the Bill of Rights. Parliament can no longer
claim supreme power subject to limitations imposed by the Constitution. It is
subject in all respects to the provisions of D our Constitution. It has only those powers vested in it by the
Constitution expressly or by necessary implication or by other statutes which
are not in conflict with the Constitution. It follows therefore that Parliament
may not confer on itself or on any of its constituent parts, including the
National Assembly, any powers not conferred on E them by the Constitution expressly or by necessary implication.*
[26] Mr Heunis argued further
that the National Assembly has inherent common-law power to punish its members
for alleged breach of privilege. It is necessary to have such powers in order
to protect its authority and F dignity. Such powers include suspending or expelling Members from the
National Assembly. He referred us in argument to several (foreign) cases where
this was done in the past. Mr Heunis submitted that in terms of s 58(2)
of the Constitution other privileges and immunities of the National Assembly
may be prescribed by National legislation. He referred to s 36 of the Powers
and Privileges of Parliament Act of 1963 which incorporates G common law by reference.
[27] Mr Trengove disputed this.
He argued that common-law powers must be consonant with Constitutional
provisions. In terms of s 57(1)(a) and (b) of the Constitution
the Assembly has power to determine and control its internal arrangements,
proceedings and procedures and to make rules and orders concerning its business
with H due regard to representative and
participatory democracy. I am of the view that, upon a proper interpretation of
s 57(1)(a), the power to determine and control the Assembly's internal
arrangements does not embrace the power to suspend a Member as a punishment for
contempt. Clearly the powers under s 57(1)(a) of the I Constitution are meant to facilitate
the proper exercise of powers and functions by the Assembly which the
1998 (3) SA p450
HLOPHE J
Constitution intended. Had Parliament
intended otherwise, one would have certainly expected the Constitution to A say so in so many words, particularly
because the principles of representative democracy lie at the heart of our
Constitution. For example, s 1(d) of the Constitution states that the
Republic is one, sovereign, democratic state founded on values which include 'a
multi-party system of democratic government'. Section 42(3) provides that B the National Assembly is elected to
represent the people and to ensure government by the people under the
Constitution. And, moreover, s 57(1)(b) and 57(2)(b) require the
rules and orders of the National Assembly to be made with due regard to
representative and participatory democracy and to provide for the participation
in C the proceedings of the Assembly and its
committees of minority parties represented in the Assembly in a manner
consistent with democracy. It follows, therefore, that a suspension of a Member
of the Assembly from Parliament for contempt is not consistent with the
requirements of representative democracy. That would be a punishment which is
calculated to penalise not only the Member in contempt, but also his or her
party and those of the D electorate who voted for that party who are entitled to be represented
in the Assembly by their proportionate number of representatives. I am
fortified in this conclusion by the provisions of the Powers and Privileges of
Parliament Act of 1963. Section 10(1) of the Act deals with penalties for
contempt but does not mention E suspension from the National Assembly as one of them. Furthermore, Rule
85 of the Standing Rules clearly does not envisage punitive suspension. It
deals with protective suspension which may be necessary in the event of a
Member disrupting the proceedings in Parliament. In casu this was
clearly not the case. Mrs De Lille had already F withdrawn the offending statements that she made in Parliament.
Therefore her suspension was punitive and not protective.
[28] There are further reasons why Mr Heunis'
main argument cannot succeed. At common law there is a presumption against
ouster clauses which are considered to constitute an improper infringement upon
the role of the Courts. In Union Government v Fakir* Kotze JA said: G
'I should like, without
attempting to dictate to the Legislature, to point out the great danger
involved in departing from the well-known rule of constitutional law in all
civilised countries - namely, that the courts of law alone are entrusted with
deciding on the rights and duties of all persons who are within the protection
of the courts.' H
Corbett CJ said the following in Poovalingham
v Rajbansi: '[I]n this connection I would endorse the approach . . . that
in determining the ambit of Parliamentary privilege the Court should, while
giving full attention to the need for comity between the Courts and Parliament,
not be astute to find reason for the ousting of the jurisdiction of I the Court and for the limitation or
defeat of a litigant's legitimate claims.'*
1998 (3) SA p451
HLOPHE J
[29] There is a long history of
misplaced reliance on ouster clauses in this country, particularly in the field
of A security legislation and emergency
regulations. For example, under the Apartheid Regime it was not uncommon for
counsel appearing for the State to urge the Court to interpret ouster clauses
in a spirit of compliance rather than one of independent scrutiny. In Hurley
and Another v Minister of Law and Order* counsel for
the B respondents constantly reminded the
Court during the course of his argument that the Court was concerned with
security legislation and he referred to the detailed provisions of the
legislation. Implicit in his argument was the submission that the Court should
construe the Internal Security Act 74 of 1982 in favour of the Executive.* Leon C ADJP rightly rejected that argument and
reminded counsel of the dissenting speech of Lord Atkin of Aberdovey in
Liversidge v Anderson and Another,* where the learned Law Lord said:
'I view with apprehension the
attitude of Judges who, on a mere question of construction, when face to face
with claims involving the liberty of the subject, show themselves more
Executive minded than the Executive. Their function is to give D words their natural meaning. . . .'
[30] Ours is no longer a Parliamentary
state. It is a Constitutional state founded on the principles of supremacy of
the Constitution and the rule of law. A new political and Constitutional order
has been established in South E Africa. The new Constitution shows a clear intention to break away from
the history of Parliamentary* supremacy.
[31] There are many other provisions in
the Constitution which do not support Mr Heunis' contention. For
example: F
(i) s 1(c)
says the Republic of South Africa is a democratic state founded on the
supremacy of the Constitution and the rule of law;
(ii) s 2
provides that the Constitution is the supreme law of the Republic and law or
conduct inconsistent with it is invalid;
(iii) s 34
states that everyone has the right to have any dispute that can be resolved by
the application of the G law
decided in a fair public hearing before a Court of law or, where appropriate,
another independent and impartial tribunal or forum;
(iv) s 38
entitles anyone alleging that a right in the Bill of Rights has been infringed
or threatened to approach law courts for appropriate relief; H
(v) s 165(3)
provides that no person or organ of state may interfere with the functioning of
the courts;
1998 (3) SA p452
HLOPHE J
(vi) s 172(1)(a)
provides that when a Court decides a Constitutional matter within its power it
must declare A that any law or conduct that is inconsistent with
the Constitution is invalid to the extent of its inconsistency;
(vii) s 8
provides that the Bill of Rights applies to all law, and binds the Legislature,
the Executive, the Judiciary and all organs of State; and B
(viii) other
relevant sections include s 165(2), s 39(1)(a) and 39(2).
[32] I have already referred to the
Constitutional crisis of the 1950s.
[33] To conclude this section, the
nature and exercise of Parliamentary privilege must be consonant with the C Constitution. The exercise of
Parliamentary privilege which is clearly a Constitutional power is not immune
from judicial review. If a Parliamentary privilege is exercised in breach of
Constitutional provisions, redress may be sought by an aggrieved party from law
Courts whose primary function is to protect rights of individuals. There is D no provision for punitive suspension in
our Constitution. On the contrary, there are many provisions which envisage
representative democracy and participation in the proceedings of the National
Assembly and its committees of minority parties represented in the Assembly in
a manner consistent with our democracy. A close reading of foreign case law
suggests that the cases were decided in the light of their own Constitutional E provisions. Therefore it would be
incorrect to contend that the exercise of privilege by Parliament should not be
subjected to judicial scrutiny because that is what the Courts have held in
other jurisdictions. In Mutasa v Makombe NO above, Gubbay CJ, in
rejecting counsel's argument that the exercise of Parliamentary privilege
interfered with the applicant's right to freedom of expression, said: F
'Section 20(2)(b)(iii) of
the [Zimbabwean] Constitution places a specific limitation upon the protection
of freedom of expression where there exists a law which makes provision for the
purpose of maintaining the authority and independence of the courts or
tribunals or Parliament.'* G
[34] Quis custodiet ipsos custodes
- who shall keep the Keepers? The supremacy of the Constitution is recognised
and vouchsafed, not only in that august document itself, but also by the
pronouncements of the Constitutional Court in the interpretation, protection
and enforcement of the Constitution (s 167(7)), with H particular reference to the Bill of Rights (see President of the
Republic of South Africa and Another v Hugo above at para [29]). The task
of ensuring that the supremacy of the Constitution is recognised and enforced,
by all to whom it applies, including organs of State, such as Parliament, is
entrusted to the Courts (s 165(2) read I with s 172(1)(a)). This is not an interference with the
independence of Parliament and its right to control its own procedures and
discipline its members; the Court does not seek to dictate to Parliament and
may not do so (s 57(1)). It recognises the separation of powers and the
desirability thereof. It also acknowledges that the proper
1998 (3) SA p453
HLOPHE J
exercise of parliamentary privilege is
a matter for Parliament alone. However, where the Court can and must A interfere is where Parliament has
improperly exercised that privilege and has acted mala fide or
capriciously and in defiance of the constitutionally inherent rights of a
Member - such as the right to just administrative action.
E. FREEDOM OF SPEECH B
[35] Section 58(1) of the Constitution
provides that the members of the Assembly 'have freedom of speech in the
Assembly and in its committees, subject to its rules and orders' (my
emphasis). The rules and orders of the National Assembly provide for suspension
of members by the Speaker. Mr Heunis conceded that whereas Rule C 85(a) makes specific provision
for the suspension of a member by the Speaker, there is no rule which
specifically authorises the suspension of a member by the National Assembly
itself. However, he argued that the National Assembly has common-law powers to
suspend a member by resolution and to determine the duration of the suspension.
That power is based on the fact that the Assembly is the sole authority in
relation to its internal D proceedings, a common feature of most Parliaments, including those not
derived from the Westminster System. The answer to this argument is that Mrs De
Lille's suspension was not one in terms of the rules which provide for summary
suspension by the Speaker. She was suspended by the National Assembly itself.
The Assembly E imposed a sentence of 15 days'
suspension without any prospect of discharge contemplated in the rules.* The punishment imposed on the
first applicant was for statements she made in the Assembly in the exercise of
her freedom of speech protected by s 58(1). The punishment of suspension was
not authorised by the rules. The F freedom of speech conferred by s 58(1) is an absolute freedom in the
sense that it is subject only to the rules and orders of the Assembly. It is
not subject to the limitations clause contained in s 36. Accordingly, the first
applicant's suspension was unconstitutional and in violation of her freedom of
speech.
F. THE BILL OF RIGHTS G
[36] Mr Trengove argued that the
first applicant's suspension violated s 16 which guarantees freedom of
expression to everyone. It also violated s 33 which guarantees to everyone the
right to just administrative action, including procedural fairness where their
rights or legitimate expectations are affected or threatened. Furthermore H the suspension of the first applicant
violated her s 34 rights. Section 34 provides that everyone has a right to have
any dispute that can be resolved by the application of the law decided in a
fair public hearing before a court or, where appropriate, before another
independent and impartial tribunal or forum. To the extent that Rule 49(3)
excludes matters of privilege from the jurisdiction of the disciplinary
committee, it was incumbent on the National I Assembly to create a disciplinary mechanism which is consonant with
1998 (3) SA p454
HLOPHE J
the Constitution. The ad hoc
committee was not and could not be an independent and impartial forum for A purposes of s 34 because, unlike the
disciplinary committee envisaged in the rules, it was dominated by the majority
party. Its independence or impartiality was significantly compromised. Mr Heunis
countered this argument by suggesting, as discussed above, that there was no
need for the ad hoc committee to hear the B applicant because it merely made recommendations to the National
Assembly which could be adopted, amended or rejected by the latter. The
decision ultimately lay with the Assembly. It is not necessary to deal with
this argument any further in this context.
[37] Our Constitutional Court has held
that a law infringes the Constitution if either its purpose or effect is to C invade a Constitutional right. In President
of the Republic of South Africa and Another v Hugo above at para [42],
Goldstone J said: '. . . the fact that the President, in good faith, did not intend
to discriminate unfairly . . . is not sufficient to establish that the impact
of the discrimination . . . was not unfair'. Similarly in Harksen v Lane D NO and Others,* Goldstone J stated at para [51]
that: 'In the final analysis, it is the impact of the discrimination on the
complainant that is the determining factor regarding the unfairness of the
discrimination.' Our Constitution clearly envisages a two-stage enquiry. The
first stage of the enquiry is to ascertain whether a law by its intent or E impact infringes a right guaranteed by
the Constitution. If a law does infringe such right the second stage of the
enquiry ensues, namely whether the infringement is protected by the limitations
clause in s 36 of the Constitution. As to the first stage of the enquiry, I am
of the view that the exercise of Parliamentary privilege which resulted in F the suspension of the first applicant
clearly affected her Constitutional rights guaranteed in terms of ss 16, 33 and
34. The next enquiry is whether the violations were justified by the
limitations clause in s 36. Section 36 reads as follows:
'36. Limitation of rights
(1) The rights in the Bill of
Rights may be limited only in terms of law of general application to the extent
that the limitation G is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including -
(a) the
nature of the right;
(b) the
importance of the purpose of the limitation;
(c) the
nature and extent of the limitation;
(d) the
relation between the limitation and its purpose; and H
(e) less
restrictive means to achieve the purpose.
(2) Except as provided in ss (1)
or in any other provision of the Constitution, no law may limit any right
entrenched in the Bill of Rights.'
The suspension of the first applicant
fails the first leg of the limitations test because it did not take place in
terms of law of general application. There is no law of general application
which authorises such suspension. It is not I authorised by the Constitution, the Powers and Privileges of Parliaments
Act of 1963 or the Standing Rules of the National Assembly. The law of
Parliamentary privilege does not qualify as a law of general
1998 (3) SA p455
HLOPHE J
application for purposes of s 36. It is
not codified or capable of ascertainment. Nor is it based on a clear system A of precedent. Therefore there is no
guarantee of parity of treatment. It is essentially ad hoc jurisprudence
which applies unequally to different parties. As O Hood Phillips and Paul
Jackson Constitutional and Administrative Law 7th ed, point out:
'Offences against the authority or dignity of the House cannot be B enumerated, the power to punish for
contempt being discretionary. An act may be treated as a contempt even though
there is no precedent of the offence.'* Accordingly, the law of
privilege fails the 'law of general application' leg of the limitations test.
[38] The punishment of suspension also
fails the second leg of the limitations test. It is not reasonable and C justifiable in an open and democratic
society based on freedom and equality. This is because the purpose served by an
ex post facto punitive suspension for unparliamentary remarks about
members which have been withdrawn is not altogether clear. It is not designed
to protect the proceedings of the Assembly from disruption D because it takes place at a time when
there is no threat of disruption, particularly after an unconditional
withdrawal of offending allegations by the first applicant. The integrity and
standing of the Assembly can adequately be secured by the imposition of
punishments which do not compromise the representative democracy, such as the
imposition of a fine contemplated by s 10 of the Powers and Privileges of
Parliament Act. Surely the E need to maintain and enhance the integrity and standing of the Assembly
cannot be used to justify the suspension of the first applicant when the
disciplinary proceedings were instituted only after her offending statements
had been withdrawn. The integrity and standing of the Assembly can hardly be
said to be threatened by remarks which were immediately withdrawn at the
request of the Speaker. In my judgment, it can never be F reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom for such a
punitive power to be exercised in violation of natural justice rules. It can
never be reasonably justifiable in a democratic society to impose such
suspension which will deprive innocent members of the electorate of their G representation in Parliament when any
such punitive purpose served by the suspension could equally be served by other
punishments which do not compromise democratic representation.
G. THE SPEAKER'S CERTIFICATE H
[39] Section 5 of the Powers and
Privileges of Parliament Act 91 of 1963 reads as follows:
'5 Stay of the proceedings in
connection with matter of privilege - At any stage of any civil or criminal
proceedings instituted for or on account or in respect of any matter of
privilege, upon production to the court or Judge by the defendant I or accused, of a certificate by the
Speaker or, in his absence or other incapacity, by the Secretary, stating that
the matter in question is one which concerns the privilege of Parliament, that
court or Judge shall immediately stay such proceedings, which shall thereupon
be deemed to be finally determined.'
1998 (3) SA p456
HLOPHE J
The Speaker issued a certificate in
terms of s 5 in terms whereof she stated that the present application
'concerns, A in its entirety, the privilege of the
National Assembly of Parliament of exclusive control over matters affecting its
internal administration, including the right to determine and control its
internal arrangements, proceedings and procedures'.
[40] Section 57(1)(a) of the
Constitution permits the Assembly to determine and control its internal B arrangements, proceedings and
procedures. It does not, however, follow that the Assembly can do so in a
manner inconsistent with the Constitution. The exercise of power conferred on
the Assembly by s 57(1)(a) remains subject to the Constitution and
subject to constitutional review by the Courts. Therefore the Speaker's C contention in her answering affidavit
that the mere issue of a certificate obliges the Court to stay the proceedings
which shall thereupon be deemed to be finally determined is clearly untenable.
To the extent that s 5 of the Powers and Privileges of Parliament Act purports
to place issues of Parliamentary privilege beyond judicial scrutiny and thus
beyond the supremacy of the Constitution on the mere ipse dixit of the
Speaker, it is D undoubtedly unconstitutional.
[41] Section 5 is inconsistent with s 1(c)
of the Constitution and the rule of law as founding values of the South African
legal order. Surely the rule of law does not countenance the administrative
issue of a certificate to shield E illegal and unconstitutional acts from judicial review. The section is
also at variance with s 2 which provides that law or conduct inconsistent with
the Constitution is invalid. Section 2 cannot be circumvented by a certificate
which purports to prevent unconstitutional conduct from being enquired into and
declared invalid. There are many other provisions of the Constitution that the
said s 5 violates: s 34 which guarantees access to courts; s 38 dealing F with the enforcement of the Bill of
Rights through the Courts; and s 167, particularly s 167(3) which states that
no person or organ of the state may interfere with the functioning of the
courts. Any certificate issued under s 5 undermines the independence of the
courts and interferes with their functioning. Section 5 is accordingly G unconstitutional and invalid.
Accordingly, no certificate issued under its purported authority is of any
effect.
H. APPLICATION TO STRIKE OUT
[42] The respondent applied to strike
out paras [29]--[33] inclusive of first applicant's founding affidavit,
together with annexure 'FA 10' thereto, referred to in para [31] and being a
newspaper report which refers, inter alia, to H what is covered in the aforesaid paragraphs. The paragraphs objected to
contain a matter which was disclosed to first applicant by someone else; these
paragraphs were included in order to assert the truth of what was told to first
applicant; it is hearsay evidence and accordingly the probative value of the
contents of the paragraphs I depends upon the credibility of first applicant's informant (s 3(1) of
the Law of Evidence Amendment Act 45 of 1988). However, first applicant has
deliberately chosen to withhold the identity of her informant; first applicant
says that the disclosures were made to her in confidence and that she is 'in
honour bound' not to reveal this person's identity. That is as may be; the
result, however, is that it is impossible for the Court to J
1998 (3) SA p457
evaluate the evidence and assess its
reliability so as to decide whether to admit it in terms of s 3(1) of the Act A even though it is hearsay (see
particularly s 3(1)(c)(iv) of the Act). The contents of the
aforementioned paragraphs are clearly prejudicial to the respondent's case; it
is not enough that the applicants indicated, through counsel, that no reliance
would be placed thereon. B
[43] In the exercise of our discretion
in terms of s 3(1)(c) we order that paras [29]--[33] inclusive of the
first applicant's founding affidavit together with annexure 'FA 10' thereto,
are struck out, with costs including the costs of two counsel.
I. FINDINGS C
[44] In all circumstances of the case,
I am satisfied that the application should succeed. The resolution passed by
the National Assembly on 25 November 1997 purporting to suspend the first
applicant for 15 days should be set aside. The respondent should be directed
not to give effect to that resolution. Further, the respondent should be D directed to pay the costs of this application,
such to include the costs of two counsel.
J. ORDER
[45] It is ordered in terms of prayers
2.1, 2.3 and 2.5 of the notice of motion, such to include the costs of two
counsel. E
King DJP concurred.
Applicants' Attorneys: C V Burgess
& Associates. Respondent's Attorneys: State Attorney.
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* Mr Heunis
referred to this in argument as the rule of courtesy which is not the same as
the rule that requires serious allegations that impact on the integrity of a
member to be raised by way of substantive motion so that issues can be fully
ventilated.
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* Mr
Heunis referred to this in argument as the rule of courtesy which is not
the same as the rule that requires serious allegations that impact on the
integrity of a member to be raised by way of substantive motion so that issues
can be fully ventilated.
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* Record at p 207. The National
Assembly resolution of 17 September 1996 followed the Odendaal-Pahad matter,
as to which see the record at p 112.
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* Record
at p 207. The National Assembly resolution of 17 September 1996 followed the
Odendaal-Pahad matter, as to which see the record at p 112.
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* Her understanding of the
Odendaal-Pahad ruling accords with that of Mr Meyer, the Parliamentary legal
adviser, record at pp 226, 277, 295.
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* Her
understanding of the Odendaal-Pahad ruling accords with that of Mr Meyer, the
Parliamentary legal adviser, record at pp 226, 277, 295.
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* Board of Education v Rice
and Others [1911] AC 179 at 182. See Baxter Administrative Law at
542 footnote 51 for South African authorities adopting Lord Loreburn's
sentiments. See also the discussion in Baxter at 222--3, 573, 586--7.
Compare the majority decision of the Appellate Division in South African
Defence and Aid Fund and Another v Minister of Justice1967 (1) SA 263 (A).
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* Board
of Education v Rice and Others [1911] AC 179 at 182. See Baxter Administrative
Law at 542 footnote 51 for South African authorities adopting Lord
Loreburn's sentiments. See also the discussion in Baxter at 222--3, 573,
586--7. Compare the majority decision of the Appellate Division in South African
Defence and Aid Fund and Another v Minister of Justice1967 (1) SA 263 (A).
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* See R v Ngwevela1954 (1) SA 123 (A); Administrator,
Transvaal, and Others v Traub and Others1989 (4) SA 731 (A).
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* See
R v Ngwevela1954 (1) SA 123 (A); Administrator,
Transvaal, and Others v Traub and Others1989 (4) SA 731 (A).
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* See the following authorities: Council
of Review, South African Defence Force and Others v M"nnig and Others1992 (3) SA 482 (A) at 490;
BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied
Workers' Union and Another1992 (3) SA 673 (A) at
693I--J; Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service1996 (3) SA 1 (A) at 8H--J.
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* See
the following authorities: Council of Review, South African Defence Force
and Others v M"nnig and Others1992 (3) SA 482 (A) at 490; BTR
Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers' Union
and Another1992 (3) SA 673 (A) at
693I--J; Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service1996 (3) SA 1 (A) at 8H--J.
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* Metropolitan Properties Co (FGC)
Ltd v Lannon and Others; Regina v London Rent Assessment Panel Committee, Ex
parte Metropolitan Properties Co (FGC) Ltd [1969] 1 QB 577 (CA) at 599F.
See also the discussion in Wade and Forsyth Administrative Law 7th ed
(1994) at 481 et seq.
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* Metropolitan
Properties Co (FGC) Ltd v Lannon and Others; Regina v London Rent Assessment
Panel Committee, Ex parte Metropolitan Properties Co (FGC) Ltd [1969] 1 QB
577 (CA) at 599F. See also the discussion in Wade and Forsyth Administrative
Law 7th ed (1994) at 481 et seq.
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* Mr Heunis also argued
that Rule 49(3) of the Standing Rules of the National Assembly which provides
for a disciplinary committee excludes from its jurisdiction matters involving
the privilege of proceedings of Parliament. It was for that reason that the
De Lille matter was not referred to the disciplinary committee. Mr Trengove
quite rightly argued that it is for the National Assembly to provide for a
mechanism consonant with the provisions of the Constitution. The ad hoc
committee procedure was unfair inasmuch as it allowed the ANC (the majority
party) to dominate and this violated the applicant's constitutionally
guaranteed right to participate in the proceedings of the Assembly. We shall
deal with this argument in due course.
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* Mr
Heunis also argued that Rule 49(3) of the Standing Rules of the National
Assembly which provides for a disciplinary committee excludes from its
jurisdiction matters involving the privilege of proceedings of Parliament. It
was for that reason that the De Lille matter was not referred to the
disciplinary committee. Mr Trengove quite rightly argued that it is for
the National Assembly to provide for a mechanism consonant with the provisions
of the Constitution. The ad hoc committee procedure was unfair inasmuch
as it allowed the ANC (the majority party) to dominate and this violated the
applicant's constitutionally guaranteed right to participate in the proceedings
of the Assembly. We shall deal with this argument in due course.
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* Bradlaugh v Gosset (1884)
12 QBD 271; British Railways Board v Pickin [1974] AC 765 at 790; New
Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly)
1993 (1) SCR 319; Mangawaro Enterprises Ltd v Attorney-General [1994]
2 NZLR 451; Yardley Introduction to British Constitutional Law 6th ed
(1984) at 35--6; O Hood Phillips and Paul Jackson Constitutional and
Administrative Law 7th ed at 234 et seq. See also the discussion
in Tribe American Constitutional Law 2nd ed at 375 et seq.
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* Bradlaugh
v Gosset (1884) 12 QBD 271; British Railways Board v Pickin [1974]
AC 765 at 790; New Brunswick Broadcasting Co v Nova Scotia (Speaker of the
House of Assembly) 1993 (1) SCR 319; Mangawaro Enterprises Ltd v
Attorney-General [1994] 2 NZLR 451; Yardley Introduction to British
Constitutional Law 6th ed (1984) at 35--6; O Hood Phillips and Paul Jackson
Constitutional and Administrative Law 7th ed at 234 et seq. See
also the discussion in Tribe American Constitutional Law 2nd ed at 375 et
seq.
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* See Sanderson v
Attorney-General, Eastern Cape1998 (2) SA 38 (CC) (1998 (1)
SACR 227) at paras [26] and [27]; Executive Council, Western Cape
Legislature, and Others v President of the Republic of South Africa and
Others1995 (4) SA 877 (CC) at
para [61]. Compare ss 39(1)(c) and 233 of the Constitution.
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* See
Sanderson v Attorney-General, Eastern Cape1998 (2) SA 38 (CC) (1998 (1)
SACR 227) at paras [26] and [27]; Executive Council, Western Cape
Legislature, and Others v President of the Republic of South Africa and Others1995 (4) SA 877 (CC) at para
[61]. Compare ss 39(1)(c) and 233 of the Constitution.
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* 1952 (4) SA 769 (A). We
shall deal later with the importance of the constitutional crisis of the
1950s.
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* 1952 (4) SA 769 (A). We shall
deal later with the importance of the constitutional crisis of the 1950s.
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* 1990 (3) SA 756 (ZSC) (1989
(3) ZLR 183 (SC)), referred with approval in Mutasa v Makombe NO1998 (1) SA 397 (ZSC).
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* 1990 (3) SA 756 (ZSC) (1989
(3) ZLR 183 (SC)), referred with approval in Mutasa v Makombe NO1998 (1) SA 397 (ZSC).
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* 1996 (4) SA 744 (CC), paras
[45], [114]--[116]; 1997 (4) SA 1 (CC), paras
[10]--[13] and [28], respectively. In casu, the parties were agreed
that the National Assembly derived its powers from two provisions in the
Constitution, namely ss 57(1) and 58(2) of the Constitution. Section 58(2)
provides that other privileges and immunities of the National Assembly may be
prescribed by National legislation.
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* 1996 (4) SA 744 (CC), paras
[45], [114]--[116]; 1997 (4) SA 1 (CC), paras
[10]--[13] and [28], respectively. In casu, the parties were agreed that
the National Assembly derived its powers from two provisions in the
Constitution, namely ss 57(1) and 58(2) of the Constitution. Section 58(2)
provides that other privileges and immunities of the National Assembly may be
prescribed by National legislation.
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* Executive Council, Western
Cape Legislature, and Others v President of the RSA and Others1995 (4) SA 877 (CC) at
para [62].
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* Executive
Council, Western Cape Legislature, and Others v President of the RSA and Others1995 (4) SA 877 (CC) at para
[62].
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* 1992 (1) SA 283 (A) at
294D--E. One of the leading cases in English law on the subject of ouster
clauses is surely Anisminic Ltd v Foreign Compensation Commission and
Another [1969] 2 AC 147. See Denning's The Discipline of Law at 69
et seq; and H W R Wade Constitutional Fundamentals at 83 et
seq where he points out that there used to be an ancient saying that it
is part of the good Judge to extend his jurisdiction.
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* 1992 (1) SA 283 (A) at
294D--E. One of the leading cases in English law on the subject of ouster
clauses is surely Anisminic Ltd v Foreign Compensation Commission and
Another [1969] 2 AC 147. See Denning's The Discipline of Law at 69 et
seq; and H W R Wade Constitutional Fundamentals at 83 et seq
where he points out that there used to be an ancient saying that it is part of
the good Judge to extend his jurisdiction.
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* See Executive Council,
Western Cape Legislature v President of the RSA1995 (4) SA 877 (CC) at
para [61].
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* See
Executive Council, Western Cape Legislature v President of the RSA1995 (4) SA 877 (CC) at para
[61].
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* Rule 87 prescribes a sentence
of five days for a first offender and the Speaker has a discretion under Rule
88 to discharge the suspension after receiving a written apology from the
suspended member.
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* Rule
87 prescribes a sentence of five days for a first offender and the Speaker has
a discretion under Rule 88 to discharge the suspension after receiving a
written apology from the suspended member.
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thank you
ReplyDeleteThank you for making the case available for study
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