Thandi Modise wont win this fight. Lets settle the Malema and parliament issue once and for all: The Constitution does not embrace the power to suspend a Member of Parliament as punishment for contempt. Such suspension, the court found, was inconsistent with the requirements of representative democracy, because it penalised not only the Member or her party, but also the electorate which voted for that party. The punishment of suspension, therefore, was unreasonable and unjustifiable in an open and democratic society based on freedom and equality, and accordingly failed the limitations test set in section 36 of the Constitution. In this regard, the court found also that parliamentary privilege does not qualify as a law of general application for the purposes of section 36. Finally, the High Court noted that section 58(1) of the Constitution, providing for freedom of speech in Parliament, was an absolute freedom, subject only to the rules and orders of the National Assembly, and that it was not a right subject to the limitations clause in section 36 The Supreme Court of Appeal (SCA) dismissed an appeal against the ruling of the High Court, but on narrower grounds. It noted that no national legislation or Rules or orders of Parliament provided for the suspension of a Member where she was not obstructing or disrupting or unreasonably impeding the management of orderly business within the Assembly, but merely making a non-obstructive and non- disruptive speech. Such a suspension, accordingly, had no constitutional authority, and was therefore void. Facts During an interpellation debate in the National Assembly, the first applicant, Patricia de Dille, named inter alia eight senior members of the majority party in the House, the African National Congress, as being accused of having been spies of the previous government. The respondent, the Speaker of the House, intervened and ruled that the reference to spies was unparliamentary. The first applicant unconditionally withdrew the statement she had made. Thereafter, and after having examined Hansard, the respondent found that the first applicant had made two further remarks which she considered to be unparliamentary. The first applicant also withdrew those allegations unconditionally. Supreme Court of Appeal On appeal, the decision of the Cape High Court was confirmed on the narrower ground that there was no legal authority permitting the Assembly to punish a member for making a speech by suspending that member from the proceedings of the Assembly. The court noted that section 58(1) expressly guarantees freedom of speech in the National Assembly (subject to its Rules and orders). It is, the court held, a crucial guarantee. The threat that a Member of the Assembly may be suspended for something said in the assembly inhibited freedom of expression in the Assembly, and must therefore adversely impact on that guarantee.[36] It is clear, the court found, that the respondent was not suspended because her behaviour was obstructing or disrupting or unreasonably impeding the management of orderly business within the Assembly, but as some kind of punishment for making a speech in the Assembly some days earlier which did not obstruct or disrupt the proceedings in the Assembly at the time.[37] In the result, continued Mahomed CJ, the appellant has failed to persuade me that the National Assembly had any constitutional authority to suspend the respondent from the National Assembly in the circumstances disclosed by the evidence adduced before the High Court.[38] Accordingly, the suspension of a Member of the Assembly in those circumstances did not have constitutional authority and was void. [39] en.wikipedia.org/wiki/ De_Lille_v_Speaker_of_the_Natio nal_Assembly De Lille v Speaker of the National Assembly - Wikipedia, the free encyclopedia en.wikipedia.org
Posted on: Sat, 21 Jun 2014 16:45:21 +0000
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