THE STATE OF PARLIAMENTARY FREE SPEECH Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 487 (CC)

Abstract

The last two years have been challenging for the South African Parliament (comprising the National Assembly and the National Council of Provinces). Some of the issues experienced include: wide-ranging disruptions during the President’s 2015 State of the Nation Address; the forceful removal of Members of Parliament (members) from the parliamentary Chamber by the police; cell-phone signal jamming in the Chamber; a failure by the Assembly to fulfil its constitutional obligations in terms of sections 55(2) and 181(3) of the Constitution of the Republic of South Africa, 1996 by not holding the President accountable to the Public Protector’s findings in the Nkandla saga ; members ignoring the rulings of the Speaker and the Chairperson of the NCOP; a challenge to the legitimacy of Parliament’s broadcasting policy and rules (Primedia) and the use of various forms of “unparliamentary” language by members in Parliament (Chairperson of NCOP). Whilst confrontation and robust debate in Parliament are not uncommon and to be expected, incidents such as these are becoming more frequent and have required the repeated intervention of the Courts.
The Constitutional Court judgment in Democratic Alliance v Speaker of the National Assembly raises important questions concerning the nature and scope of the parliamentary privilege in section 58(1)(b) of the Constitution. It also demonstrates the difficulty of maintaining a balance between the importance of upholding the guarantee of freedom of speech in Parliament, on the one hand, and the need to ensure internal order and discipline during parliamentary sittings, on the other. There have been a number of recent judgments concerning the internal functioning of Parliament. These judgments illustrate that the South African Constitution is a work in progress and that our constitutional jurisprudence is maturing. As recently observed by retired Constitutional Court Justice, Sandile Ngcobo, “This is not a bad thing … Our Constitution is still a young one and through constitutional adjudication it will generate constitutional rules and principles that will form the core of our constitutional law”. The purpose of this note is to explore the constitutional principles underlying parliamentary privilege, with specific reference to the decision in Democratic Alliance.