It's unconstitutional for cops to remove MPs from Parliament – ConCourt

18 March 2016

Johannesburg - The Constitutional Court has ruled that the law which allows police to remove MPs from Parliament is unconstitutional.

However, it would not confirm the declaration of the constitutional invalidity of section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act made by the Western Cape High Court, it said in its order handed down on Friday.

The omission of the words "other than a member" after the word "person" at the beginning of section 11 of the Act was declared to be inconsistent with the Constitution.

In a majority judgment, Justice Mbuyiseli Madlanga said: "If 'person' in section 11 of the Act does not include a member, then the constitutional issue of an infringement – by the section – of the parliamentary privilege of freedom of speech does not arise. 

"The matter must end there; and there cannot be confirmation of the high court’s declaration of constitutional invalidity. If it does, then I must engage in the confirmation debate. The question is: does it? It does."

The Constitutional Court found that the high court had correctly found section 11 to be constitutionally invalid, but that it was necessary to make a different order.

"The high court declared the provision invalid 'to the extent that it permits a member to be arrested for conduct that is protected by sections 58(1)(b) and 71(1)(b) of the Constitution. 

"That order is not apposite. The invalidity of section 11 stems from the fact that the section applies to members," according to the judgment.

On the question of whether to suspend the declaration of constitutional invalidity, the Constitutional Court found that Parliament's rules made it possible to deal with errant members effectively, including removing them from the Chamber forcibly.

"When the order made... takes effect, Parliament will not be left unable to deal with members who cause or take part in disturbances."

The court did not see a need for a suspension.

In May last year, the high court declared that Section 11 of the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act was inconsistent with the Constitution, and thus invalid.

The court found that the argument that members would disrupt Parliament’s functions with impunity, without certain legislation governing their conduct, was "unconvincing".

The Democratic Alliance had brought an application to the court, questioning the right to remove or arrest parliamentary members who caused disturbances.

National Assembly Speaker Baleka Mbete and National Council of Provinces chairperson Thandi Modise had invoked section 11 during President Jacob Zuma's State of the Nation Address on February 12, 2015, calling on Parliamentary staff and security forces to forcefully remove members of the EFF from the joint sitting as a result of disturbances that were caused.

EFF members had risen on a point of privilege or point of order after being dissatisfied with the manner in which Mbete dealt with a question about when Zuma was going to pay back money he was said to owe for his Nkandla homestead.

This article first appeared on News24, see here.