Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
12 February 2020

Neither SONA nor any disruption will improve the quality of governance in South Africa

Another State of the Nation Address (SONA), another threat from the EFF to disrupt the event. Time, then, to brush up on our knowledge of the rules of Parliament. Not that it is likely the speech (or any disruption of it) will make much of a difference to anything – except perhaps, to the egos of the politicians and members of the political class invested in the spectacle. And so it goes.

On Thursday night President Cyril Ramaphosa will deliver another State of the Nation Address (SONA) to Parliament and (supposedly) to the entire nation, a nation that will be momentarily stunned by the absence of load-shedding. The prose is likely to be plodding, and the delivery lacking in energy and conviction. The speech will be preceded by an unseemly fashion show and breathless commentary from some pundits about the importance of the event.

Unless Economic Freedom Fighters (EFF) leader Julius Malema flip-flops again in his usual manner, the proceedings will be disrupted by a group of rich juveniles. If the MPs in their ostentatious red overalls are thrown out of the chamber, the usual suspects will immediately start to argue about the legality and appropriateness of ejecting the disruptors.

Most of the people arguing about this would not have bothered to familiarise themselves with the rules or the constitutional principles they will claim to argue about. Instead they will shout insults and threaten violence, or will revert to their trusted stock of tired “whataboutisms” to advance the interests of their preferred cult leader.

On Twitter, this is referred to as reasoned debate.

As reading (and, come to think of it, thinking) is not something the people raging and hating on Twitter are fond of doing, I am probably wasting my time here trying, yet again, to explain the rules that apply in situations like this. And yet, here I am – foolish and old-fashioned as ever – insisting on the importance of familiarising yourself with the facts and the law before arguing about these facts and law on Twitter or elsewhere.

To quote Kurt Vonnegut: “And so it goes.”

MPs are not usually assumed to possess any principles (or if they do, these are more often than not easily traded for other principles when this is politically expedient, Mr Malema being exhibit A for this contention), but MPs do work in an institution created by the Constitution and this Constitution does lay down general principles about how business should be conducted inside Parliament. Thus, in terms of sections 58(1)(a) and 71(1)(a) of the Constitution, members of the National Assembly (NA) and the National Council of Province s(NCOP) enjoy freedom of speech in Parliament and its committees, “subject to its rules and orders”.

In Democratic Alliance v Speaker of the National Assembly and Others the Constitutional Court emphasised that this privilege extends to conduct “that annoys and tests the patience of the presiding officer”.

Robustness, heatedness and standing one’s ground inhere in the nature of parliamentary debate…. In the heat of a debate one must expect that – from time to time – a member’s contributions will not come to a screeching, mechanical halt once the presiding officer has ruled that the member desist from further debate on a subject.

While the rules require an MP to retract insults directed at fellow members, no MP can be asked to leave the chamber merely because the MP has chosen to display his or her lack of wit and intelligence by shouting inane insults at opponents. (If I had my way, the rules of Parliament would allow MPs to insult opponents, but only if the insults are witty and intelligent – which would silence about 98% of the members of Parliament for ever.)

But the Constitution does allow Parliament to make rules to limit the freedom of expression of MPs – as long as such rules do not deprive free speech of its essential content. In Democratic Alliance v Speaker of the National Assembly the Constitutional Court affirmed that the privilege contained in ss 58 (1) (a)[17] and 71 (1) (a) can “never go so far as to give members a licence so to disrupt the proceedings of Parliament that it may be hamstrung and incapacitated from conducting its business” and continued:

This would detract from the very raison d’être of Parliament… There can be no doubt that this authority [contained in s 57 (1)] 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.

If South Africa had still been an undemocratic and authoritarian state (as it was before 1994), disruption of Parliament would have been an important political tool at the disposal of those fighting against the oppressive regime. But the current Parliament was democratically elected in substantially fair and free elections. It is true that the current Parliament often acts as a lapdog of the executive (a predictable consequence of the governing party handsomely winning election after election). It is also true that some MPs are ethically compromised – a kind way to say they may belong in jail.

But as the Constitutional Court pointed out, sabotaging a democratically elected Parliament is a profoundly anti-democratic (and, I would add, authoritarian) act. Those who disrupt Parliament claim for themselves the right to decide when Parliament should be “permitted” to continue with its work and when not. It is the antithesis of democratic behaviour.

The general principle (it is difficult to avoid this term when you are not a demagogue) that disruption is not permitted, finds expression in the rules of Parliament. NA rule 69 therefore prohibits MPs from engaging in “grossly disorderly conduct”. The rule provides examples of such conduct which include:

deliberately creating serious disorder or disruption; physically intervening, preventing, obstructing or hindering the removal of a member from the House who has been ordered to leave the House; repeatedly undermining the authority of the presiding officer or repeatedly refusing to obey rulings of the presiding officer or repeatedly disrespecting and interrupting the presiding officer while the latter is addressing the House; persisting in making serious allegations against a member without adequate substantiation or following the correct procedure; using or threatening violence against a member or other person; or acting in any other way to the serious detriment of the dignity, decorum or orderly procedure of the House.

NA rule 70 allows the Speaker to order an MP to leave the Chamber immediately for the remainder of the day’s sitting if she is of the opinion that a member’s conduct is grossly disorderly. If the Speaker is familiar with the rules (not something that, given the recent history, can be taken for granted) and if she applies the rules fairly (also not a given), an order for a disrupting MP to leave the Chamber would be aimed at protecting democracy from thuggery. Unfortunately, in the Zuma Parliament the Speaker shamelessly bent the rules to protect the President, which muddied the waters a bit and led many who would otherwise oppose anti-democratic behaviour to support the loutish and juvenile disruption of Parliament.

NA rule 73 prescribes the process that must be followed if an MP refuses to leave the Chamber as instructed.

In terms of this rule, the Speaker must instruct the Sergeant-at-Arms to remove the MP from the Chamber and the precincts of Parliament forthwith. If this is not possible, the Speaker may call in the Parliamentary Protection Services (the so called “white shirts”) to assist with the removal. If an MP resists attempts to be removed from the Chamber, the Sergeant-at-Arms and the Parliamentary Protection Services may use such force as may be reasonably necessary to overcome any resistance. Other MPs are prohibited from physically intervening in or obstructing the removal and can themselves be removed if they intervene.

We will only know on Thursday night (well, some of us won’t watch SONA so we will only know on Friday morning) whether the Speaker was required to apply these rules during President Ramaphosa’s speech. The tragedy is that – disruption or not – the SONA will probably not have any significant positive impact on the lives of South Africans as a speech cannot magically improve the quality of governance (and the quality of political contestation) in South Africa.

And so it goes.

2015 Constitutionally Speaking | website created by Idea in a Forest