Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
It is a tad surprising that the statement issued last week by the Chief Justice and all other senior judges in South Africa about the independence of the judiciary and the rule of law elicited such excitement in media circles and from some commentators. The statement is remarkably unremarkable. It merely restates the long held and uncontroversial principles on which any constitutional democracy founded on the rule of law is based. The only vaguely interesting aspect of the statement relates to the criticism of judges and court judgments. But even this was not really controversial. None other than Minister Blade Nzimande appears to have heeded the advice of the judges about how to criticise court judgments – unfortunately not with great success.
Over the past few weeks some politicians attempted to use the judiciary as a scapegoat in order to distract attention from their own problems. Often resorting to wild and unsubstantiated conspiracy theories or sweeping generalisations about the judiciary, politicians such as Gwede Mantashe, Marius Fransman, Nathi Nhleko and others attacked the judiciary and court judgments in vague and overheated terms.
These attacks reminded me of the attack by then DA leader Helen Zille on a judge appointed to head a commission of inquiry back in 2012. At the time Zille complained that “some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them”. There was no factual basis for this claim and the court who later heard a challenge to the legal validity of the commission declined to endorse this particular conspiracy theory.
Politicians from across the political spectrum as well as many members of the public seem to have some difficulty in distinguishing between valid criticism of court judgments and unsubstantiated and vague attacks questioning the integrity or honesty of members of the judiciary. To this end the statement issued by the Chief Justice and the other senior judges confirmed that:
[j]udges like others should be susceptible to constructive criticism. However, in this regard, the criticism should be fair and in good faith. Importantly the criticism should be specific and clear. General gratuitous criticism is unacceptable.
The statement further acknowledged that judges – “like other mortals” – sometimes make mistakes. That is why litigants can appeal judgments all the way to the Constitutional Court where a full bench of eleven judges may provide a final answer to a legal question. The statement also pointed out that “judgments are often subjected to intensive peer and academic scrutiny and criticism”.
The few legal academics and students who actually read law journal articles (despite the unspeakable tedium and dullness of many of these missives) will attest to the fact that court judgments are sometimes subjected to scathing criticism. But the criticism is always specific and always engages with the legal reasoning employed by a judge to justify the outcome of a case.
Thus, while it is perfectly acceptable to argue that a judgment is wrong because a judge misstated a legal rule (say dolus eventualis) or misinterpreted the facts and to advance an argument about how the judge should have interpreted and applied a specific legal provision or rule instead, it is not appropriate to accuse a judge of bias or a hidden agenda – unless, of course, you provide factual proof for your accusation.
As the Chief Justice pointed out, if there is any evidence that some judges may have been prompted by others to arrive at a pre-determined result, they should immediately report this to the Judicial Conduct Committee of Judicial Service Commission (and should endeavour to provide evidence on which they base their allegations).
Which brings me to the Minister of Higher Education Dr Blade Nzimande, who – commendably – seems to have taken the statement of the Chief Justice to heart and on Saturday stepped back from previous vague allegations against the judiciary and instead singled out for criticism the judgment of the Western Cape High Court in the case of Democratic Alliance v Speaker of the National Assembly and Others. The judgment dealt with the legality of section 11 of the Powers, Privileges and Immunities Act which was used to justify the removal by the Police of EFF MPs from parliament during President Jacob Zuma’s state of the nation address.
Unfortunately it seems that the Minister may either not have read or understood the implications of the judgment or may deliberately have misconstrued the legal reasoning contained in it. Minister Nzimande complained that:
[j]udges must apply a tough test if a case comes before them which is about the [executive or parliament]. If a question comes about rules of parliament, a test must be very tough.
The Minister is also reported as criticising the judgment as “a ruling that tells us that the EFF has a right [to disrupt parliament]”.
This, however, is not exactly what the judgment found. The judgment is careful to acknowledge that sections 57(1) and 70(1) of the Constitutions bestows a general power on parliament to “determine and control its internal arrangements, proceedings and procedures” and to “make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement”.
The judgment further notes that the rules of parliament empowers presiding officers to deal extensively with members who deliberately disobey the rules, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in parliament. For example rule 51 of the NA states that:
if the presiding officer is of the opinion that a member is deliberately contravening a provision of these Rules, or that a member is in contempt of or is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly, he or she may order the member to withdraw immediately from the Chamber for the remainder of the day’s sitting.
National Assembly rule 56 also allows the presiding officer to adjourn the meeting or suspend proceedings in the event of grave disorder at a meeting.
The judgment also specifically confirms that no MP has a right to disrupt proceedings in Parliament. As the court noted the Constitution permits Parliament to make rules that temporarily exclude disruptive members from the sittings of Parliament. It quoted from a 1999 Supreme Court of Appeal judgment which stated:
There can be no doubt that this authority is wide enough to enable the Assembly to maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society. Without some such internal mechanism of control and discipline, the Assembly would be impotent to maintain effective discipline and order during debates.
It is therefore not entirely correct to claim – as Minister Nzimande did – that the judgment gives the EFF a right to disrupt parliament. Instead the judgment deals with the rather narrow question of whether section 11 of the Powers, Privileges and Immunities Act (relied on by the Speaker to justify the physically removal of EFF MPs from parliament by police officers) was constitutionally valid.
The court found that it was not. This was so because the section was badly phrased and thus overbroad because it allowed for the physical removal of an MP from parliament and for his or her arrest when that MP creates a “disturbance”.
There were two problems with the sections which rendered it overbroad. First, it allowed for the arrest of MPs for what they say in parliament, something that is prohibited in absolute terms by sections 58 and 71 of the Constitution. No exception to this rule is provided for in the Constitution. Second, it allowed for the removal of MPs from parliament for causing a “disturbance”, but defined “disturbance” too broadly.
The impugned section of the Act on which the Speaker relied defined “disturbance” in an extremely wide manner as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of parliament”. But the court found that sometimes robust debate could be viewed as being disruptive and the section could therefore be used to censor, remove and even arrest MPs for speaking their minds in parliament.
In real terms the definition is so broad that the exercise of the right to free speech in the NA, NCOP or parliamentary meeting, which ordinarily and appropriately includes robust debate and controversial speech, can certainly constitute an act which can be construed to interfere with or disrupt proceedings. This extremely broad definition of the word “disturbance” thus potentially detracts from a member’s constitutional privilege of freedom of speech and freedom from arrest as envisaged in terms of s 58(1) and 71(1) of the Constitution.
If applied in this manner it could silence MPs and could be used to rob citizens of their right to hear what their democratically elected representatives have to say in parliament about a matter of pressing public importance.
It is important to note that the court did not rule that legislation may never allow for the removal of MPs from parliament. Indeed the court stated:
It is not difficult to imagine a situation where a [MP] may create or cause a disturbance of such gravity that it undermines the authority or dignity of Parliament as a whole. In those instances common sense dictates that the Presiding Officer must be in a position to take decisive action as an orderly measure to protect the dignity of Parliament from obstruction, disruption and disturbances.
As noted above the Court pointed out the NA and NCOP have established rules empowering presiding officers to deal extensively with members who deliberately disobey a rule, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in Parliament.
The court also rejected the argument that it had been necessary to draft section 11 in such broad terms to ensure parliamentary proceedings was not unduly impeded, noting that parliament has more than sufficient tools to maintain order in its precincts.
It has the Rules and the power to hold members in contempt. There are offences created by section 27, and the power to allow the security forces to enforce them as contemplated in section 4 of the Act. In fact section 4 of the Act provides that members of the security forces may enter the precincts of Parliament and perform any policing functions in the precincts and inter alia take action to prevent immediate danger to life or safety of any person or damage to any property.
Of course, the heavens will not fall merely because a Minister misconstrued a court judgment while purporting to criticise it. On some level voters should expect that politicians will sometimes ignore the carefully reasoned judgments of courts in order to score cheap political points.
However, it is important that citizens stay alert to the propaganda and spin of politicians and are not easily taken in by such misrepresentations. To ensure that citizens are not misled by politicians tempted to misconstrue court judgments, it may be helpful if citizens studied the relevant court judgments themselves to ascertain whether the criticism is correct or not. Alternatively, citizens may do well to treat such attacks with a pinch of salt.BACK TO TOP