Opposition MP Takes on Parliament

Suspension a Violation of Free Speech, rules Court

THE SOUTH AFRICAN High Court, Hlope J presiding with King DJP concurring, ruled that The Speaker of the National Assembly could not give effect to a resolution of the House suspending a Member for utterances made in the course of a parliamentary debate as this would violate the Member's right to freedom of speech and the right of those who elected her to be represented. It also ruled that the Constitution was supreme and any law that placed parliamentary conduct above judicial scrutiny was unconstitutional.

Facts
Patricia De Lille is a Member of the South African Parliament representing the Pan Africanist Congress of Azania (PAC), one of the many minority political parties in the National Assembly. During an interpellation debate in Parliament in October 1997, Mrs. De Lille said that the PAC had information regarding twelve members of the African National Congress (ANC), the majority party in the National Assembly, who had been accused of having been spies for the previous apartheid regime. She sought to know whether the accusations were true and called on the government to disclose the names of those "who received blood money to betray the genuine struggle of the African people and betrayed the soul of the nation." The Speaker of the House intervened and requested De Lille to withdraw these remarks on the basis that they were unparliamentary. She withdrew them. The ANC proposed that the House appoint an ad hoc committee to report on De Lille's conduct 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.

This motion was opposed by almost all the minority parties represented in the Assembly, particularly as De Lille had already unconditionally withdrawn the allegations. But because of the ANC majority the resolution was adopted and the ad hoc committee was appointed. It comprised eight members of the ANC and seven members of the opposition parties. The ad hoc committee met in November 1997 with members from minority parties attacking the ANC members for various reasons. In court, De Lille alleged that it was "apparent that the hearings were a charade and that the ANC had from the outset made up its mind about the outcome." This was never disputed in court. The committee recommended that De Lille be directed to apologize for making the offending allegations and that she be suspended for 15 parliamentary working days. Once again only the ANC voted for De Lille's suspension both before the ad hoc committee and when the National Assembly adopted the recommen-dations on 25 November 1997. De Lille, supported by her party, the PAC, brought an application against the Speaker seeking an order setting aside and declaring the resolution by the National Assembly suspending her to be null and void, and directing the Speaker not to give effect to that resolution.

Decision
In a landmark decision, Hlope J, with King DJP concurring, found that the manner in which De Lille had been treated by the ANC violated the rules of natural justice. The ad hoc committee was also found to have acted mala fide. The court stated, "No one has the power to act mala fide, Parliament included. The Constitution does not intend to authorize bias." It had been argued on behalf of the Speaker that the National Assembly was merely exercising its privilege when it passed the resolution suspending De Lille. Moreover, if the court found that the proceedings were instituted in respect of a matter of privilege, that should be the end of the matter, the case should be stayed permanently, since such proceedings are immune from the purview of judicial review. This is a universally accepted phenomenon and reserves for Parliament the exclusive jurisdiction to enforce its privileges and to punish those who infringe them.

The court held that in terms of s 2, the Constitution is the supreme law of the Republic and any law or conduct inconsistent with it is invalid. Furthermore, s 8(1) also provides that the Bill of Rights applies to all law and binds the legislature, the executive and the judiciary and all organs of the state. Therefore any privilege inconsistent or incompatible with the Constitution is invalid. Otherwise Parliament would have a blank cheque to set the limits of its own powers. The court further found that the punishment imposed on De Lille was for the statements she made in the Assembly in the exercise of her freedom of speech protected by s 58(1) of the Constitution. This freedom is absolute in the sense that it is subject only to the rules and orders of the Assembly and not the limitation clause contained in s 36. De Lille's suspension was accordingly held to be unconstitutional and in violation of her right to freedom of speech. In addition it was found that De Lille's suspension affected her constitutional right to freedom of expression in terms of s 16 of the Bill of Rights. Violations of s 33 (just administrative action) and s 34 (access to courts) were also found and were not saved by the limitation clause in s 36.

Commentary
This is without doubt a landmark decision unprecedented in the history of South African constitutional law. Previously the courts have been unwilling to interfere in the internal workings of Parliament. But perhaps the best assessment of the judgment comes from a statement by the Speaker of the House of Assembly, Frene Ginwala, who, in a communication from the chair on 13 May 1998, said: "All South Africans need to walk the road from an autocratic and repressive system and its accompanying ways of thought and action, to a democracy governed by a Constitution. This institution [Parliament] and its members are no exception. We must welcome the light shed by the court in identifying some of the issues that need to be addressed, and on how power should be exercised within a constitutional democracy."

Cecil Burgess
Practising Attorney, Cape Town.