1 September 1999
Hon. Members: I wish to inform the House of the Judgement of the Supreme Court of Appeal on 26 August 1999 and some of its implications for Parliament.
In 1997 the National Assembly appointed an ad hoc committee to report to the House on the conduct of a member, Ms P de Lille "in making serious allegations without substantiation against members of the House on 22 October 1997, and to recommend what, if any, action the House should take in the light of its report". On 25 November 1997 the Assembly adopted a report by the ad hoc committee recommending that Ms de Lille -
Ms de Lille applied to the Cape High Court challenging the resolution of the Assembly regarding her suspension.
At the commencement of the 1998 session the Speaker informed the House that implementation of the resolution suspending Ms de Lille had been deferred, in terms of an agreement between all parties represented in the Assembly, "until a court application regarding the matter ... has been finally determined by the Court".
The Cape High Court upheld Ms de Lille's application on 8 May 1998 and granted an order declaring void the relevant resolution of the Assembly. Thereupon, in a statement to the House, the Speaker confirmed that the decision to defer the implementation of the resolution suspending Ms de Lille remained applicable.
The judgement of the Cape High Court included a number of additional findings which had direct implications for how Parliament, as an independent arm of State, conducted its affairs in accordance with the Constitution. In view of these implications, it was decided to request leave to appeal.
The Supreme Court of Appeal delivered its judgement on the appeal on 26 August 1999. The Court limited its judgement to an enquiry whether or not the Assembly had the lawful authority to suspend Ms de Lille. For that purpose the Court examined the provisions of the Constitution to establish whether suspension in the circumstances that prevailed were constitutionally sanctioned.
In regard to section 57 of the Constitution, which provides that the Assembly "may determine and control its internal arrangements, proceedings and procedures," the Court remarked as follows : " There can be no doubt that this authority is wide enough to enable the Assembly to maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society. Without some such internal mechanism of control and discipline, the Assembly would be impotent to maintain effective discipline and order during debates".
The Court considered the question whether the Assembly had the authority to suspend the member "as a punishment or disciplinary measure for making a speech which was not in any way obstructive or disruptive of proceedings in the Assembly, but which was nevertheless open to justifiable objection" and came to the conclusion that the Assembly did not have such authority.
The Court based its findings on the fact that section 58(1) of the Constitution guarantees freedom of speech in the Assembly subject to its rules and orders. However, as we are aware and the court noted, the rules and orders of the House do not make specific provision for suspension of a member in the circumstances of this case.
The Court also examined whether there is legislation in terms of section 58(2) of the Constitution that authorises the suspension of a member. The Court found that there was none. In particular the Court found that section 36 of the Powers and Privileges of Parliament Act, 1963, which seeks to incorporate English parliamentary law by reference, does not constitute national legislation as envisaged in the section. In the absence of such legislation the Court found that the Assembly did not have the constitutional authority to suspend Ms de Lille from the Assembly in the circumstances disclosed in the case.
The effect of the Court's judgement is that the suspension of Ms de Lille by the House is set aside, but that the directive stands that she apologise to the members named by her and to the House for making the allegations concerned.
However, the resolution against Ms de Lille was taken in the House in November 1997, that is, in the previous Parliament. The Appeal Court judgement came only after the term of the first National Assembly had expired, and the resolution of the previous Assembly can be of no force or effect in the new Parliament, and this Assembly.
This Parliament must now, as I have indicated, urgently give consideration to the implications for Parliament of the substance of the judgement. I would therefore strongly recommend that the full text of the judgement and the principles related to that judgement be given priority attention by the Joint Subcommittee on Powers and privileges.
The Subcommittee was established to review existing legislation and the common law and practice relating to parliamentary powers and privileges, and to make recommendations to the Joint Rules Committee to transform the existing law and practice on parliamentary powers and privileges.