Earlier this year, the Western Cape High Court handed down a significant judgment which emphasises the primacy of free speech in the context of parliamentary debates.

The Democratic Alliance (DA) approached the Court in response to the use of security forces to remove Members of Parliament (MPs) from the joint sitting of Parliament at which President Jacob Zuma was giving the annual State of the Nation Address. The MPs were removed in terms of section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (Act). This section allows the Speaker of the National Assembly or the Chairperson of the National Council of Provinces to order a parliamentary staff member or the security services to arrest and remove any person who creates or joins a disturbance during a sitting of Parliament. (This also applies to disturbing a sitting of a House or a Committee.)

The DA challenged the constitutionality and meaning of section 11 of the Act on what the Court characterised as two pillars. Firstly, the DA argued that section 11 is contrary to sections 58 and 71 of the Constitution, which guarantee members of Parliament freedom of speech in the National Assembly and National Council of Provinces. Secondly, the DA challenged the section on the basis that it violates the fundamental principle of the separation of powers as enshrined in the Constitution. Ultimately, the court did not find it necessary to consider whether the section violates the principle of separation of powers.

The Court held that, although Parliament is entitled to conduct its own affairs, freedom of speech is vital to enable Parliament to perform its function of conducting unrestrained debate about matters of public importance. Accordingly, the Court declared that section 11 of the Act was inconsistent with the Constitution and invalid, but only to the extent that it permits a member to be arrested for conduct that is protected under the Constitution. The Court seemingly left room for the option that the section may allow for the removal of members without arrest.

In our view, this case highlights the fundamental importance of freedom of speech in a constitutional democracy. Ultimately, the right of expression which was limited by this section was not merely the right of the MPs concerned, but the right of their constituents to partake in the governance of the country. Our courts have long recognised the importance of the ability of MPs to articulate the needs, views and political and economic attitudes of their constituency freely and without fear.

The declaration of invalidity by the High Court is still subject to confirmation by the Constitutional Court. The Constitutional Court heard argument by the parties on 5 November 2015 and judgment is awaited.

Submitted by Webber Wentzel