RECONSIDERING THE PRIVILEGES AND IMMUNITIES OF MUNICIPAL COUNCILS

Abstract

Privileges and immunities of elected assemblies protect freedom of speech and
promote vigorous debates in these assemblies. South Africa is ahead of the United
Kingdom (UK) and Canada regarding the law on privileges of municipal councils, in
that municipal councils in South Africa enjoy absolute privilege, whereas in the UK
and Canada they enjoy qualified privileges. Yet, the absolute privilege
notwithstanding, the law regarding privileges of municipal councils is not precise or
clearly stated. The Constitution entrusts Parliament with the power to provide for a
framework, and – to give content to this – provincial legislatures with the power to
provide for privileges and immunities in municipal councils. However, it does not
provide minutiae and details on the nature and extent of such privileges and
immunities. The provision of municipal privileges by fragmented provincial legislation
may result in disparity in municipal councils. Freedom of speech may require uniform
legislation that applies across the nation. Thus, the Constitution should be amended
to entrust Parliament to provide for uniform legislation on the privileges of municipal
councils.