Judgment of the Constitutional Court

18 March 2016

The Office of the ANC Chief Whip maintains the DA’s case regarding the constitutionality of Section 11 of the powers and privileges Act of 1994, which the Constitutional Court ruled on today, is essentially academic. The DA’s case did not seek to challenge any of the decisions or conduct of the presiding officers, including last year’s removal of the disruptive EFF MPs during the state of the nation address. As a matter of fact, the presiding officers did not apply section 11 of the Act when they ordered the removal of the EFF MPs.

The case of the DA is merely an academic exercise intended to ask the court to constitutionally interpret section 11 of the powers and privileges act, including if MPs may in future face arrest for their utterances. MPs' freedom of speech is protected under section 58 of the Constitution, i.e. freedom of speech in the House, hence it is absolutely inconceivable that anyone could be arrested merely for the things they say in Parliament.

Section 11, in our view, is not intended to enforce arrest of MPs on the order of the presiding officers on the basis of their utterances. The Act only directs presiding officers to call for the arrest of MPs strictly for criminal offences, a responsibility that falls under the competence of the police.

The irrefutable fact is that no MP has ever been arrested for utterances made in Parliament since the advent of our constitutional democracy in 1994. MPs` freedom of speech is jealously guarded in the Constitution and the presiding officers have always firmly protected the rights and freedoms of all MPs in accordance with the provisions of the Constitution.

In terms of the new rules of Parliament, adopted last year with the support of the DA, MPs who cause grave disruptions and impede the business of the House may be removed from the House (not arrested) by the Serjeant-At-Arms with the assistance of the parliamentary protection staff (not police). The Concourt ruling affirms this. The rules are explicit that arrest can only take place in extraordinary circumstances of criminal nature.

In its usual cheap propaganda, the DA has sought to deceive the public by suggesting that this case is intended to challenge the decision of the presiding officers during SONA, even bizarrely, alleging MPs were "arrested" on that day. Obviously, this is nothing but a desperate fabrication created by its own fertile imagination.

We note the guidance of the Constitutional regarding its interpretation of Section 11 of the powers and privileges Act, and we will study the judgment fully and issue a comprehensive response.

The powers and privileges Act was passed in 1994 with the unanimous support of all political parties, including the DA – which was then called the Democratic Party. The late veteran MP, Colin Eglin, in particular, was amongst the DP MPs who championed the passage of this piece of legislation. It is thus hypocritical of the DA to claim victory against the very piece of the legislation that it championed.

Issued by the Office of the ANC Chief Whip, 18 March 2016