ConCourt: DA to argue arresting of MPs in Parliament is unconstitutional

The Democratic Alliance (DA) in its review application will argue that arresting Members of Parliament (MPs) for doing their work is at odds with the Constitution and the doctrine of separation of powers. The dictates of Section 58 read with Section 71 of the Constitution stipulate that Members of both Houses of Parliament are not “liable to…arrest…for anything that they have said in, produced before or submitted to the [NA or NCOP] or any of its committees.”

During this year’s State of the Nation Address (SONA) an entire Opposition party was remove from the National Assembly by members of the South African Police Service (SAPS). This was at the behest of the Presiding Officers who, as we contend, erroneously invoked Section 11 of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act.

To this end the Western Cape High Court ruled, in May 2015, that Section 11 of the Act is “inconsistent with the Constitution and invalid to the extent that it permits a member to be arrested for conduct protected by sections 58(1)(b) and 71(1)(b) of the Constitution.” Therefore, Section 11 in its current incarnation explicitly undermines the ability and duty of elected officials to speak truth to power.

The misapplication of this section by the Presiding Officers effectively criminalised the work being carried out by Members of Parliament by speaking truth to power as is their constitutional mandate.

Section 11 of the Act in its current form states that: 

“A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security service.”

Pursuant to the Western Cape High Court’s ruling, we believe that this is unconstitutional. Unsurprisingly, a vexatious ANC in Parliament, through the Speaker and Presiding Officers of Parliament, subsequently appealed the judgment. 

Therefore, tomorrow in the Constitutional Court, the DA will argue- in its heads of argument- that if Section 11 of the Act is left unchallenged, there is every possibility that the Executive will continue to interfere in what should be the business of Parliament which is inconsistent with the doctrine of the separation of powers. 

It is never desirable to approach the Judiciary to rule on parliamentary matters, but the extraordinary times we are in have made it necessary for us to do so.

Issued by James Selfe, Chairperson of the DA's Federal Executive, 4 November 2015