Western Cape High Court Judgement over-stepped the mark

16 April 2015

The SACP is concerned that this week’s ruling in the Western Cape High Court by Judge Lee Bozalek in favour of the EFF further blurs the line in our constitutional doctrine of the separation of powers between the courts and Parliament. The original statement by the EFF in Parliament, accusing the ANC-led government of deliberate murder was, of course, deeply offensive. However, whether it was, indeed, “un-parliamentary”, as was ruled by the Chairperson of the NCOP who was chairing a joint sitting at the time, is arguably open to debate.

That is not the point, however. Sections 45 and 57 of the Constitution clearly state that Parliament, through its joint rules committee, must draw up its own rules of conduct. Section 58 of the Constitution confers privileges on members of parliament, who “are not liable to civil or criminal proceedings, arrest, imprisonment, or damages for … anything they have said in…the Assembly.” This clause, in effect, explicitly locates the content of parliamentary debates outside the purview of the courts, in order to ensure “freedom of speech in the Assembly”.

However, in order to prevent sheer anarchy, and the opportunistic abuse of this parliamentary freedom of speech, constitutionally Parliament is empowered to create its own rules of conduct through the multi-party joint rules committee. Currently, these rules, amongst other things, empower the Speaker, or those chairing plenary sessions, to make rulings. The rules also provide for reviews of such rulings to be made within multi-party structures. This is where this dispute should have been taken.

For all of these reasons, the SACP strongly believes that Judge Bozalek has seriously over-stepped the mark.     

Statement issued by Alex Mashilo, SACP Western Cape, April 16 2015