Home » Education » South Africa: Court Dismisses Application to Declare Na Rule Unlawful, Affirms Power to Maintain Internal Order and Discipline

Parliament welcomes a judgment of the Western Cape High Court yesterday dismissing an application by the leader of the Economic Freedom Fighters, Mr Julius Malema, for an order declaring rule 73 of the National Assembly (NA) Rules unconstitutional, unlawful and invalid.

In a strongly worded censure, the Court slammed conduct on the part of some Members which it referred to as " rather shameful, disgraceful and irresponsible not befitting the holders of the office of the Members of Parliament, who are the guardians of democracy."

Yesterday's judgment followed an application by Mr Malema after his ejection from the NA on 9 September, in terms of its Rule 73. The Member's removal followed his repeated disregard for the orders of the Speaker.

In its judgment, the Court noted that both the Supreme Court of Appeal and the Constitutional Court recognised that the NA had the authority and powers to maintain internal order and discipline in its proceedings, including the power to temporarily exclude from the NA any member for disrupting its proceedings or impairing unreasonably its ability to conduct its business, in terms of the Constitution.

The Court further stated that the Rules dealing with public meetings and rules of debate can be regarded as the internal mechanisms of control in the NA.

The court dismissed Mr Malema's argument that the Rule gave the Speaker "too much power", contravened the constitutional right Members have to free speech. Mr Malema requested the court to find that the Presiding Officer acted unlawfully.

The Court noted that the Speaker proved beyond any doubt that there are instances of interference and disruption that justify the removal of a Member who hamstrings and incapacitates Parliament from conducting its business.

The evidence of the Speaker indicated that it could not be the exercise of political free speech and activity as contemplated in the Constitution, to deliberately contravene the Rules of Parliament, behave in a grossly disorderly manner, to defy the authority of the Chairperson, to show contempt to a Chairperson or Presiding Officer, to deliberately and without legitimate reason raise purported points of order, or to stifle political free speech of another Member, the Court said.

"Such incidents and conduct can surely not be within the boundaries of the Constitution".

Rule 73 is applied only when a Member refuses to leave the chamber when ordered to do so by the Presiding Officer in terms of the Rules. This only happens in the case when the Presiding Officer is of the opinion that a Member is deliberately contravening the Rules, or that a member is disregarding the authority of the Chair, or that a member's conduct is grossly disorderly.

The Court further held that "clearly before a member is forcefully removed, none forceful measures are first exhausted. Then only is this forceful removal embarked upon, and only under circumstances where such member resists removal from the Chamber by the Sergeant-at- Arms".

Further "the forceful removal of a member, is not resorted to in an arbitrary and capricious manner and that it would be unrealistic and impractical to implement the audi alteram partem principle as outlined in section 12(3) of the Powers Privileges and Immunities of Parliament and Provincial Legislatures' Act ("PPI Act") under these circumstances", the Court said.

The Court however declared invalid, the automatic suspension of a Member removed from the House in terms of Rule 73.

While no cost order was awarded a notable exception was made by the Court in respect of the postponement costs "occasioned by the applicant's failure to comply with the Court Rules.

Source: Parliament of South Africa

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