Legal Talk

Author: Fawzia Khan
Date: 2016-06-03

As with the handing down of judgment by Chief Justice Moegeng Moegeng of the Constitutional Court earlier this year on the issue of the Public Protector, the judiciary this time in the form of the Supreme Court of Appeal, has once again demonstrated that it will not bow to political pressure. Keeping the Judiciary, Executive and Legislative independent is key to good governance. In this case the Chairperson of the National Council of Provinces took on appeal a ruling made by the Western Cape High Court in 2014 in the case involving the Economic Freedom Front and Julius Malema and the Speaker of the House, Baleka Mbete.

The EFF took Baleka Mbete to court, when she suspended Julius Malema for refusing to withdraw his statement made in Parliament when he accused the ANC government of having massacred the people in Marikana. Malema asked the Western Cape Court to declare her ruling on Malema's suspension be invalid and set aside. Most South Africans would be aware of Malema's particular abrasive, direct and some might say divisive political style. However in our democratic playing field, Malema has every right to express himself in Parliament as robustly and fiery as he wishes. The question must then be asked, can a Member of Parliament be allowed to disrupt proceedings making it impossible for Parliament to function? The answer to the question lies in how the Supreme Court of Appeal dealt with this issue. It said that politics in South Africa has "seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is not a bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible. For democracy to flourish, free speech cannot be stifled. Free speech, in parliament, lies at the heart of parliamentary processes. The standing orders cannot be interpreted so as to nullify free speech".

In terms of our Constitution, in particular Section 58 and 71 members of Parliament are guaranteed freedom of speech, which is subject only to "its rules and orders". Members of parliament enjoy special privilege where they are protected against criminal and civil liability for any statements or utterances they make in parliament during proceedings in the house. This privilege is rooted in our Constitution and is afforded to all members of parliament in both the National Assembly and the National Council of Provinces. Unsurprisingly, the Western Cape High Court found in Malema's favour and held that the Speaker's rulings were reviewed and set aside. However not happy with that outcome, the Chairman of the National Council of Provinces and Mbete then took the Western Cape High Court on appeal to the Supreme Court of Appeal ("SCA"). The Speaker Mbete said that when she made her ruling, she did so because of what Malema said about the government and as opposed to the ANC.

On 20 May 2016, the SCA delivered its landmark ruling, in which it reaffirmed what the Western Cape High Court had ruled in 2014. It said that on a sensible interpretation of Malema's utterances, that his criticism of the conduct of the police at Marikana was legitimate, especially as the issues raised by Malema was a burning issue of immense public interest'.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney.

Email fawzia@thelawdesk.co.za or call 031 - 502 5670 for legal assistance at competitive rates.

Springclean

Enlarge View Link

Nissan T5ekton

Enlarge View Link