Police in the Parliament: ConCourt ruling a victory for Executive accountability

18 March 2016

The Democratic Alliance is satisfied with the judgment handed down in the Constitutional Court, the highest court in the land, which confirmed the Western cape High Court’s ruling and in so doing affirmed our contention that Section 11 of the Powers, Privileges and Immunities of Parliament and the Provincial Legislatures Act is unconstitutional as it hamstrings Members of Parliament’s (MPs) ability to hold the Executive to account.

The judgement that was handed down following a confirmation application brought by the Democratic Alliance (DA) to confirm the unconstitutionality of Section 11 of this Act as ordered by the Western Cape High Court in May last year.

Of equal importance is that Parliament now has legal certainty from the highest court in the Republic that the Chair may not be abused to shield the President and any member of the Executive from accountability and shut down Parliament’s exercise of Executive oversight when they don’t like what is being put to them by the Opposition benches. 

In May 2015, the Western Cape High Court found Section 11 to be “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.”  This followed the disturbing events in the National Assembly (NA) during the 2015 State of the Nation Address, where, at the behest of the Presiding Officers, an entire Opposition Party was violently removed from the House by a paramilitary unit of the police now dubbed as the ‘White Shirts’.

This is a victory for democracy and accountability as it empowers MPs to do the work South Africans expect of them, which is, inter alia, to hold the Executive and the President accountable for their actions pursuant to section 55(2) of the Constitution. 

MPs have a constitutional duty to hold those in power to account, and this judgment paves the way for MPs to do so without the threat of removal from the House or arrest by the country’s security services.

While it is never desirable to rely on the Courts to make rulings on the workings of Parliament, the extraordinary events that characterised the State of the Nation Address (SONA) last year compelled the Party to approach the Court in this matter. 

Part of the job of MPs is to hold the President and other members of the Executive to account. It would be a sad day for our democracy if the Presiding Officers were allowed to have members arrested and removed from the precinct of Parliament for fulfilling their constitutional responsibility, however much the Executive may not like the message or how it is delivered.

The DA will continue to strive for democratic and constitutional values, and will continue to fight for them to be upheld even if it means doing so in the country’s highest court.

Issued by Adv Glynnis Breytenbach, DA Shadow Minister of Justice, 18 March 2016