Democratic Alliance v Speaker of the National Assembly and Others

On 12 February 2015, during the State of the Nation Address, members of the Economic Freedom Fighters (EFF) rose to ask when the President would repay money spent on upgrades to his private residence at Nkandla, as required by the Public Protector's report. The Speaker ruled this was not the appropriate occasion for such questions. After the EFF members refused to desist and subsequently refused to leave when ordered, they were forcibly removed by security services (including police) under section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004. The Democratic Alliance (DA) protested, viewing this as unconstitutional and a breach of separation of powers, and its members left the Chamber voluntarily. The DA then launched proceedings in the High Court seeking a declarator that section 11 is constitutionally invalid or does not apply to members of Parliament. The High Court declared section 11 invalid to the extent it permits members to be arrested for conduct protected by sections 58(1)(b) and 71(1)(b) of the Constitution.

• Does the word 'person' in section 11 of the Act include members of Parliament?
• Does section 11 infringe the parliamentary privilege of freedom of speech guaranteed by sections 58(1)(a) and 71(1)(a) of the Constitution?
• Does section 11 infringe the immunities from arrest, imprisonment and criminal proceedings guaranteed by sections 58(1)(b) and 71(1)(b) of the Constitution?
• Can parliamentary freedom of speech be limited by means other than the rules and orders of the relevant House?
• What is the proper reach of the term 'disturbance' in section 11?
• What remedy is appropriate if section 11 is found to be unconstitutional?

The declaration of constitutional invalidity made by the High Court was not confirmed. The Constitutional Court declared that the omission of the words 'other than a member' after 'person' at the beginning of section 11 is inconsistent with the Constitution. Section 11 is to be read as though the words 'other than a member' appear after 'person'. The appeal and cross-appeal were dismissed. The respondents were ordered to pay the applicant's costs, including the costs of two counsel.

The binding legal principles established are: (1) Parliamentary freedom of speech guaranteed by sections 58(1)(a) and 71(1)(a) of the Constitution can only be limited by the rules and orders of the relevant House, not by Acts of Parliament; (2) This is because the rule-making power in sections 57(1) and 70(1) is wholly internal to Parliament, whereas Acts of Parliament involve Executive participation through Presidential assent, bill referral powers, and legislative initiation, which would impermissibly involve an external arm of state in limiting parliamentary speech; (3) The word 'person' in section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004, when interpreted in accordance with ordinary grammatical meaning, the context of the Act as a whole, and the purpose of the section, includes members of Parliament; (4) Section 11, insofar as it applies to members, is constitutionally invalid because it infringes both the privilege of freedom of speech and the immunities from arrest and criminal proceedings; (5) The term 'disturbance' in section 11 should be narrowly construed to mean only conduct that hamstrings and incapacitates Parliament from conducting its business with no reasonable prospect of resumption within a reasonable time, to avoid overbreadth that would capture legitimate robust parliamentary debate; (6) When constitutional interpretation principles permit reading-in as a remedy, courts should interfere as little as possible with legislation while ensuring constitutional compliance.

The majority judgment made several non-binding observations: (1) Madlanga J noted the importance of free speech to parliamentary democracy, pluralism, and meaningful participation by all parties and members in deliberative processes; (2) He emphasized that free speech enables better legislative outcomes by allowing all voices to be heard, and is essential for Parliament's oversight function over the Executive; (3) Madlanga J questioned the qualified concurrence's broader interpretation of 'arrest' in sections 58(1)(b) and 71(1)(b) to include any forcible restraint, suggesting this interpretation is problematic because it would mean even removal under parliamentary rules would infringe the immunity from arrest, though he deliberately refrained from deciding the issue definitively; (4) He noted that the present National Assembly rules do provide for forcible removal of members, and the constitutional validity of those rules may need to be determined in future cases; (5) Nugent AJ observed that authority to arrest members for criminal prosecution is already provided elsewhere in legislation (sections 4, 7, and 27 of the Act, together with the Criminal Procedure Act), suggesting section 11 was intended primarily for removal rather than prosecution; (6) Jafta J's dissent observed that if parliamentary rules do not adequately empower removal of defiant members, there is inadequacy in the rules that must be cured, as discipline of members should be maintained through rules in accordance with sections 58(1) and 71(1); (7) The dissent also noted that reading 'person' to exclude members does not leave a vacuum, as Parliament retains power through its rules to exclude disruptive members for temporary periods.

This case is significant in South African constitutional law for several reasons: (1) It clarifies the scope and protection of parliamentary privilege of freedom of speech under sections 58(1) and 71(1) of the Constitution; (2) It affirms that parliamentary freedom of speech can only be limited by the rules and orders of the relevant House, not by Acts of Parliament, thereby preserving parliamentary autonomy from Executive involvement; (3) It establishes that the immunities from arrest and criminal proceedings in sections 58(1)(b) and 71(1)(b) are absolute and not subject to rules and orders (per majority); (4) It demonstrates the application of constitutional interpretation principles, including reading legislation in conformity with the Constitution, purposive interpretation, and reading-in as a remedy; (5) It addresses the tension between maintaining order in Parliament and protecting robust parliamentary debate, which is essential to constitutional democracy; (6) It reinforces the separation of powers by preventing security services from being used to remove members for what they say in Parliament; (7) It narrows the meaning of 'disturbance' to prevent overbreadth that would chill legitimate parliamentary debate. The case has important implications for parliamentary procedure, the relationship between Parliament and the Executive, and the protection of minority voices in a pluralistic democracy.