Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
5 March 2020

What is to be done about EFF disruption and assault in the Eastern Cape legislature?

What is to be done when members of the legislature disrupt proceedings in the house, refuse to obey the Speaker’s orders, and take part in an assault on parliamentary security personnel ordered to remove them from the legislature? The Eastern Cape legislature believes the answer is to turn to the court to interdict Members of the Provincial Legislature (MPLs) and their supporters from interfering in the legitimate business of the house. But turning to the courts to defend the legislature from anti-democratic behaviour must surely be a last resort.

A battle has been waging in the Eastern Cape Provincial Legislature between Economic Freedom Fighters (EFF) MPLs and their supporters, on the one hand, and the Speaker and the rest of the house, on the other. The disagreement does not centre on policy disputes or any other matter that may benefit the people of the Eastern Cape. Instead, the two sides are fighting about whether EFF MPLs should be allowed to wear their red costumes in the house.

Earlier this week the Speaker again ordered EFF MPLs to leave the house because they were dressed in their red costumes. When they refused, she ordered their removal. This led to resistance and ultimately an assault by EFF MPLs and their supporters on one of the legislature’s security personnel who was tasked with removing the disrupting MPLs from the house. At the time of writing, the High Court in East London were considering whether to grant an interdict against EFF MPLs and their supporters, prohibiting them from interfering and disrupting the “legitimate business of the house”.

In ordering EFF MPLs out of the house because of their outfits, the Speaker relied on rule 79(1)(a) of the Easter Cape Provincial Legislature Standing Rules which states that an MPL “must be appropriately dressed in compliance with the provisions of the dress code when attending the House”. In 2017 the EFF approached the Eastern Cape High Court on an urgent basis asking the court to declare the dress code (adopted in 2015) unconstitutional. As the code had applied since 2015 and had previously been complied with by all MPLs, the court obviously dismissed the application as not being urgent.

The EFF has made no further efforts to challenge the constitutionality of the code in court. Instead the Eastern Cape EFF MPLs decided this year to use unlawful methods to prevent the enforcement of the code. A decent argument could be made that the dress code rule is unconstitutionally broad and infringes on the right to freedom of expression enjoyed by MPLs – as set out in sections 16, read with117(1)(a) of the Constitution.

The Constitutional Court has held that “expression” should be given an expansive meaning. Not only words, but also gestures (like waving a flag) and other forms of communication (like wearing certain types of clothing, or a hairstyle) are included in the definition of constitutionally protected expression.

For example, when a person wears a T-shirt with the apartheid flag on it, he or she engages in a form of expression. Similarly, when a woman (and, come to think of it, a man) wears a doe, he or she is similarly engaging in a form of expression. Regulating the wearing of these forms of clothing items therefore infringes on the right to freedom of expression. IN each case the question will be whether the limitation on freedom of expression is justified in terms of the limitation clause.

The prohibition on Eastern Cape EFF MPLs wearing their trademark red costumes and plastic “hard hats” is therefore a clear limitation on their right to communicate their political message to the public. It could, of course, be argued that this limitation is justifiable in terms of the limitation clause. This would require the legislature to point to a pressing purpose being served by the prohibition. However, given that the National Assembly has not adopted a similar dress code, it is not clear that such a pressing purpose for the specific rule in the dress code exists. To make things worse, the code was only adopted after the EFF started wearing their costumes, which suggests this code was specifically drafted to punish the EFF.

Despite having a plausible to strong legal argument, the EFF has not approached the court in the procedurally appropriate manner to challenge the constitutionality of the code. Instead, the EFF MPLs are attempting to get their way through unlawful means. This is not a principled stance by the EFF against using the courts, as the EFF has often approached the courts for relief. It is a form of brute politics in which the EFF MPLs are betting that they can disrupt the normal functioning of the democratically elected legislature to such an extent that it would become impossible for the legislature to continue with its work unless the EFF permits it to do so.

The EFF’s use of this tactic raises a fundamental question about the manner in which democratically elected institutions in unstable and divided societies should respond to unlawful, undemocratic, and sometimes violent, behaviour of the members of a political party who enjoys some electoral support. How does a democratic institution protect itself from undemocratic and unlawful attacks aimed at thwarting the majority view? Surely not by acting itself in an undemocratic and unlawful manner?

The problem faced by South Africa’s democratically elected institutions is that the EFF – the third largest party in the national legislature – rejects many of the assumptions underlying constitutional democracy. One such an assumption is that while legislators will try to use and sometimes bend the rules of the legislature to score political points and put their opponents of the back foot (as the EFF has done brilliantly in the National Assembly in the past), they will not launch a full-frontal attack on the legitimacy of the democratically elected institution they are part of and will not do anything that would make it impossible for the elected representatives to do the job for which they were elected.

This assumption tends to be valid in a democracy in which a political party will be punished by the electorate if it is seen to sabotage the work of the legislature through its disruptive and unlawful behaviour. I suspect that this assumption does not hold true for many EFF voters. Because of the poor performance of our legislatures and weak support for (or outright hostility towards) democracy and democratic institutions among a sizeable section of the voters, an attack on the legislature by a minority party may enjoy strong support from many of that party’s supporters.

The fact that a significant number of South Africans believe (not without cause) that democratic institutions tend to protect the interests of various economic and political elites and thus perpetuates inequality, further muddies the water.

As none of the problems noted above will disappear in the near future, legislatures must now decide how to respond to the politics of disruption and spectacle for which the EFF has become (in)famous, without closing down the democratic space.

On paper, some forms of democracy-threatening behaviour are more easily dealt with than others. For example, the assault on one of the legislature’s security personnel was captured on video, which means it should not be too difficult to identify some of the perpetrators and to prosecute them for assault. However, because of a lack of political will or because of SAPS incompetence, none of the EFF leaders implicated in previous cases of assault captured on video, have been prosecuted. It remains to be seen whether there will be any consequences for those involved in the assault this week in the Eastern Cape Legislature.

But what about the unprecedented move by the Eastern Cape Legislature to approach the court for an urgent interdict against EFF MPLs and their supporters? The move looks like an admission on the part of the Speaker that she is unable to deal with the situation. But the application is placing the court in a very difficult position. It is, in effect, being asked to interfere in the working of the provincial legislature in order to protect the Speaker (and indirectly also thus protecting democracy and upholding the rule of law).

This raises separation of powers problems. Unless the interdict is carefully worded so as not unduly to interfere with the rights and privileges of EFF MPLs, the court will be overstepping the mark. The court has a duty to enforce the Constitution and the legal rules, but it has to do so while showing requisite deference to the democratically elected legislature and its members.

More importantly, while interdicts give a tactical advantage to the parties obtaining them, they are difficult (and sometimes politically awkward) to enforce. As my former colleague Prof Alan Rycroft has pointed out, interdicts work best when the party being interdicted respects or fear the authority of the court. If the interdict is ignored the individuals or organisation can be held in contempt of court and punished with imprisonment, but this seldom happens because the court has set very strict criteria for a contempt of court finding. Moreover, a court who regularly imprison people for contempt of court will signal that its authority is not respected, but only (half-heartedly) feared.

All this suggest that there is no easy way of stopping elected members of a political party from disrupting the proceedings in Parliament and from preventing the elected representatives of the legislature from doing the work voters have elected them to do, when a sufficient number of voters support the undemocratic behaviour of the party involved.

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