Economic Freedom Fighters and Others v Speaker of the National Assembly and Others

The Economic Freedom Fighters (EFF) party members, who are the applicants, disrupted the State of the Nation Address (SONA) in 2015 and 2017 by raising spurious points of order, shouting down proceedings, and refusing to obey the instructions of the presiding officers (the Speaker and Chairperson) to desist and withdraw. Their intention was to prevent the then President from delivering these addresses. As a last resort, security personnel, including members of the South African Police Service seconded for crowd control, were instructed to physically remove the disruptive members. The applicants claimed they were subjected to gratuitous violence during their removal. The respondents argued the members had to be ejected to restore order and that they were not instructed to assault them. The applicants delayed launching proceedings for over seven years (five years after the second incident) without seeking condonation. The applicants did not challenge the constitutionality of the parliamentary rules or the legislation granting immunities to the respondents.

• Whether the applicants made out a cause of action for a declarator that their ejectment from parliamentary proceedings was unconstitutional due to alleged gratuitous violence.
• Whether the applicants' claims for constitutional damages were competent where a common law remedy in delict was available.
• Whether the applicants' claims had prescribed due to the effluxion of time.
• Whether the immunity provision in section 22 of the Powers, Privileges and Immunities Act 4 of 2004 barred the applicants' claims.
• Whether the applicants complied with the statutory notice requirements under the Legal Proceedings Against Certain Organs of State Act 40 of 2002.
• Whether freedom of speech in Parliament is absolute and includes the right to disrupt parliamentary proceedings.

The application was dismissed with costs. The first applicant (EFF) was ordered to pay the costs of the application on a party-and-party scale, including the costs of two counsel where employed. Senior counsel costs were set on scale C and junior counsel on scale B. Costs incurred before 12 April 2024 were to be determined by the taxing master unless otherwise agreed.

1. Constitutional damages are not available where an effective common law remedy (such as a delictual claim) exists to vindicate the rights in question. A claimant must first have recourse to the common law remedy. 2. Freedom of speech in Parliament is not absolute; it is governed by parliamentary rules and regulations, and members do not have the right to disrupt parliamentary proceedings or resort to self-help. 3. A claim for constitutional damages framed as a declarator cannot be used to camouflage the true cause of action (in delict) in order to circumvent prescription and statutory immunity provisions. 4. Where legislation provides immunity for acts done in good faith under parliamentary authority, this immunity extends to all damages claims, including constitutional damages, and excludes liability even for delictual claims.

The court observed that the rule of law can be distilled into at least eight basic principles: laws must be general, publicly accessible, forward-looking, clear, non-contradictory, not impossible to comply with, stable, and congruent with how officials enforce them. The court also noted that parliamentary rules are essentially agreements between political parties regulating democratic debate and that the applicants' actions infringed the rights of all parliamentary members and voters. The court further remarked that the applicants' approach of framing the claim as constitutional damages was a 'disguised and chameleonic' attempt to circumvent statutory hurdles, including prescription and immunity provisions.

This case is significant in South African constitutional law as it clarifies the limits of freedom of speech in parliamentary proceedings, affirming that the right is not absolute and must be exercised within the framework of parliamentary rules. It reinforces the principle that constitutional damages are a remedy of last resort and cannot be claimed where the common law provides an effective remedy. The judgment also affirms the immunity of parliamentary presiding officers and security personnel acting in good faith under the Powers, Privileges and Immunities Act. It underscores the importance of the rule of law in parliamentary democracy and confirms that deliberate disruption of parliamentary proceedings is not protected constitutional conduct.