Deputy Speaker rulings: 23 May 2018; House Chairperson ruling: 7 November 2018: consideration of principles

Meeting report

Mr Masibulele Xaso, Secretary: National Assembly (NA), presented on the consideration of the Deputy Speaker’s ruling of 23 May 2018.

The Deputy Speaker had made a ruling on the remarks of the Mr J Malema (EFF). One of the remarks was considered a reflection on the character of a Member of the House. Mr Malema had been asked to withdraw the remark, and he had done so.

The other remark was in relation to the occupation of land. The Deputy Speaker had not ruled against these remarks, but he had raise a concern about the legality of them. The Deputy Speaker had said the matter should be referred to the appropriate structures. Before this matter was referred to the appropriate structures, Mr F Shivambu (EFF) had penned a letter that challenged both the ruling made by the Deputy Speaker, as well as the remarks made by the Deputy Speaker on the speech of Mr Malema. He had asked that the principle of these two issues be bought before the Rules Committee.

Ms Sueanne Isaac, Parliamentary Legal Advisor, summarised the legal findings on the matter of Mr Malema for the Committee. Based on the deliberations, the following conclusions were reached:

• The statement of Mr Malema was covered by parliamentary privilege, in as far as it was made in Parliament and in context of a Parliamentary debate. As such, no criminal or civil liability could flow from the utterances.
• This, however, did not preclude the NA from inquiring into the conduct of Mr Malema in respect of the possible abuse of privilege, as set out in rule 355. There was a preponderance of evidence which pointed to a deliberate use of privilege to propagate a view that the Member knew he could not express outside of Parliament by virtue of the pending court case against him.
• In this regard, a decision may be taken for the matter to be referred to the Powers and Privileges Committee for an investigation and recommendation of the House. The challenge, though, was that the Rules do not clearly articulate the conduct that constitutes abuse of privilege.
• To the extent that it may be substantiated that Mr Malema was deliberate in his conduct, it may also amount to a breach of his oath of office in as far as it amounted to disrespect of an existing law of the Republic.
• These were, however, vaguely proscribed infringements and subject to different interpretations that were open to a challenge.

The Chairperson raised concern over the absence of a rule that best determined if a matter fell with the privileges afforded to Members of Parliament or if the matter fell outside of these realms and thus the Member in question was not protected. She suggested that there was nothing they could do about the matter at present without the necessary rule, and proposed that the Committee leave it to the sixth Parliament to implement such a rule, so that such matters can be dealt with in the future.

Mr J Steenhuisen (DA) said that the Rules Committee should vigorously defend the right to privilege in the House. It was a long-standing Parliamentary tradition. The infraction by Mr Malema was very vague, and there was no prospect of action against it succeeding.

Mr J Mthembu (ANC) said that there needed to be clarity on what constituted abuse of privilege. Parliament should not let people incite criminality under the guise of freedom of speech. He agreed that there should be a rule that addressed what constitutes Parliamentary privilege and what does not. If this rule was not in place, then there would be an abuse of Parliamentary privilege by Members of Parliament.

Mr N Matiase (EFF), agreed with the Chairperson. However, he disagreed with Mr Mthembu and urged him to reconsider his utterances. He believed that Members of Parliament should be afforded their privilege to its fullest.

Mr Mthembu responded that the privileges that the Members enjoyed in Parliament came with the responsibility of being honourable. Those who had crafted the Constitution did not foresee that these rules might be used to incite criminality by Members of Parliament. Those who crafted the rules would be very disappointed to know that Parliament was now being used to incite criminality among its citizens. The rules and privileges of Parliament had to be consistent with the rues that govern the country.

Mr Steenhuisen said that section 58(1) of the Constitution was very clear about granting Members of Parliament certain privileges so that they were able to engage in debate that was robust.  He disagreed with the ruling that asked him to withdraw his comment about the “VBS looters.” He quoted from the Chairperson of the NCOP v Malema judgment, which stated: “It follows that even if Mr Malema had directed criticism at Members of Parliament, the standing order still did not find application because his words form part of constitutionally protected political speech. He engaged in robust criticism of government conduct. His words fell in the heartland of political speech and were therefore protected by s58(1) of the Constitution. For democracy to flourish, speech cannot be stifled. Free speech in Parliament lies at the heart of the Parliamentary processes.”  He argued that his comment was not directed at any individual member, but rather at members of a political party.

Ms T Didiza (ANC), who submitted the report, said that she had explained in the report how the decision had been reached. She agreed that if the need arises, the matter should be referred to the sub-committee to come up with a recommendation for the Committee.

Mr Matiase also agreed that the matter should be taken to the sub-committee to come up with a recommendation on how best to deal with this issue. To discuss the matter further in this matter would be allowing Mr Steenhuisen to be part of the jury on his own matter.

Mr Mthembu agreeds with the proposal. This would also allow Ms Didiza to present to the sub-committee on her findings.

Mr Steenhuisen also agreed with the course of action, but was worried about the timeframe. He did not want the matter to spill over into the sixth Parliament, and would prefer that the matter be dealt with as soon as possible. The other option would be for the Committee to accept Ms Didiza’s report, and for an external review to take place afterwards.

Ms Didiza said that they should rather exhaust their own processes before going for an external review. The fairer process would be to go through the sub-committee.

The Chairperson said that the Committee would refer the matter to the sub-committee.

Mr Steenhuisen accepted this course of action, but would like to have it on record that he did so without prejudice to any other course of action.

Mr Mthembu said he had a problem with the fact that Mr Steenhusien did not have faith in his own Committee, before they had even initiated a course of action.

The meeting was adjourned.